Con Law= Federal Judicial Power + Federal Executive Power + Federal Legislative Power +

Rights

Interpretation Chem 1.1-1.5

Federal Judicial Power —> Article 3

Chem 2.2-2.4, 2.5.1, 2.6.1, 2.7.1, 2.8.1-2.8.3, 2.8.8
*Cases*
Marbury v. Madison established authority to review constitutionality of executive +
legislative acts on federal level (Hamilton’s view + not
Jefferson’s pg 2-3
Martin v. Hunter’s Lessee SC can review state court decisions

*Justiciability= can court hear this case?

-neither in text of Const nor in drafting Const were any of these doctrines expressly mentioned
-come from Art. 3 § 2 cases and controversies + prudential judicial administration
Prohibition against advisory opinions
-to avoid this, need:
-Actual dispute between adverse litigants
-substantial likelihood that a federal court decision in favor of claimant will
bring about some change or have some effect
-Standing=specific person is the right party to bring a matter to court for adjudication (litigant
entitled to have the court decide merits of dispute)
-Ripeness= premature for review or ready?
-Mootness= too late or quits existing during lawsuit; the requisite personal interest that must
exist at the commencement of the litigation (standnig) must continue throrughout its existence
-Pol q doctrine= subject matter is not appropriate for judicial review b/c constitutuional
interrpretation of these areas should be left to legislative + executive branches (politically
accountable branches of gov)
- first mentioned in Marbury and was narrower then
Luther v. Borden republican form of gov clause Art. 4 § 4;
violations of republican form of gov clause
are political questions that cannot be decided
by federal courts (held up consistently)
Nixon v. US 1993 “a controversy is nonjusticiable— ie involves
a political q— where there is a “(1) textually
demonstrable constitutional commitment of
the issues to a coordinate pol department; or
(2) a lack of judicially discoverable and
manageable standards for resolving it” pg 24-
25
-reapportionment= rural residents were overrepresented and urban dwellers were substantially
underrepresented in state legislatures. Rural residents were overrepresented and urban dwellers
were substantially underrepresented in state legislatures.
-political q when brought under republican form of gov clause and not
equal protection clause (Baker v. Carr)
 -Supreme Court has not hesitated to decide the constitutionality of using
race in drawing election districts to increase the likelihood of electing
African-American and Latino representatives. (Strict scurtiny must be
met for race to be used as predominant factor in districting)
-Gerrymandering
-there still has not been a majority opinion holding that challenges to partisan
gerrymandering are always political questions but hard to imagine a case succeeding after
Veith + Perry
-In Vieth v. Jubelirer (plurality)=partisan gerrymandering suits are inherently
nonjusticiable political questions
-Rucho v. Common Clause= partisan gerrymandering claims are not justiciable bc
pol q
-geographic versus partisan
-Pres use of war powers usually deemed political questions (constitutionality of the president
sing troops in a war or war-like circumstances w/o congressional approval) pg 32-33
-impeachment is Nixon v. US 1993
-Congress has to decide what high crimes + misdemeanors are and what
procedures are appropriate concerning impeachment + removal pg 22

Federal Legislative Branch —> Art. 1 + parts of Art. 4

Chem. § 3
-Nec + Proper Clause Chem § 3.3
-Art. 1 § 8 Cl. 18
-McCulloch v. Maryland Chem. § 3.2
-Necessary + Proper Clause= bank of US + ideological clash between Federalists and
state rights ppl
- no enumerated power within the Constitution allowing for the creation of a bank.
- Compact federalist; ppl adopt Const, not the states
-Implied powers? Practical considerations for how you use enumerated powers
- If federal gov can do something, states cannot pass laws that undermine the federal
gov’s power
-states cannot pass laws that interfere with Congress’s power because of Supremacy
Clause
-supremacy clause is means by which they carry out their necessary powers (ie
enumerated powers need implied powers so Congress can enforce the enumerated
powers)
-NFIB v. Sebelius
-“individual mandate,” requiring individuals to purchase at least minimal
health insurance coverage challenged
-Court emphasized that the necessary and proper clause must be used in
conjunction with a valid exercise of another power of Congress.
 Commerce Power Chem § 3.4
-Art. 1 § 8 Cl 3
Era Idea Approach
Marshall Gibbons: expansive -commerce includes all
commerce power phases of business, including
 navigation
-among means intermingled
with
-No 10th Amendment
limitations (act like states do
not exist)
Taney Unclear (Chemerinsky says Cooley v. Board of Wardens
they contradict each other)
Lochner narrower commerce -“dual federalism”=federal
powerinvalidated many and state governments were
federal laws as exceeding the separate sovereigns, that each
scope of this authority. had separate zones of
authority; judicial role to
protect the states by
interpreting and enforcing the
Constitution to protect the
zone of activities reserved to
the states.
-Morally and economically
conservative
- commerce was one stage of
business, distinct from earlier
phases, such as mining,
manufacturing, or production
- among the states=
substantial effect on interstate
commerce (direct effects
versus indirect)
1937 to Rehnquist Reaction against preceding -NLRB v. Jones & Laughlin
period back to Gibbons Steel Corp. in 1937, United
approach States v. Darby in 1941, and
Wickard v. Filburn in 1942:
overruled the earlier decisions
and expansively defined the
scope of Congress’s
commerce power. (all phases
of business again)
-abandon direct + indirect
distinction
-10th A not a limit: a federal
law would be upheld so long
as it was within the scope of
Congress’s power
-Civil Rights Act of 1964
based on commerce clause
Rehnquist Less expansive than - US v. Lopez (3 areas
 Roberts preceding period, 10th A can Congress can regulate):
be a limit 1. channels of interstate
commerce.
2. persons or things in
interstate commerce
3. activities that have a
substantial effect on interstate
commerce;
substantial activity may be
found based on cumulative
impact
-US v. Morrison=

 Taxing + Spending Chem § 3.5

-Art 1 § 8 Cl 1
-Madison + Hamilton conflicting views= Can it be in service of existing power
(Madison) or can you tax + spend to promote general welfare (Hamilton)
-NFIB v. Sebelius: individual mandate portion of the Affordable Care Act, requiring
individuals to purchase a health insurance policy providing a minimum level of
coverage, is a tax and therefore does not violate the Constitution.
- spend to promote general welfare (Hamilton) adopted here
 Foreign Policy Chem § 3.6.1
o Conflict btwn Congress + President
 Treaties Chem § 3.6.1
o Treaties prevail over all conflicting state laws.
o If there is a conflict between a treaty and a federal statute, the one adopted last in
time controls.
o State sovereignty and 10th A do not limit treaty power
 Immigration + Citizenship Chem § 3.6.1
o set conditions for citizenship and retaining citizenship.
o Court has been less consistent in according Congress broad power to regulate
citizenship than it has been in granting Congress power to regulate immigration
 War Powers Chem § 3.6.1
o Art I, §8 – Congress has power to declare war and raise support armies.
o Art II – President commander in chief of the army and navy; power to make
treaties by and with the advice and consent of the Senate
 10th Amendment= Limit Congressional Authority Chem § 3.10 (see chart)

Federal Executive —> Art. 2

-Express + Implied powers Chem § 4.1
-Hamilton + Madison disagree
 Hamilton: president can do whatever as long as Constitution does not say he can’t
 Jefferson + Madison: president can only do what Constitution says he can
-Youngstown
  Majority’s Holding (Black): the president’s power, if any, to issue the order must stem
either from an act of Congress or from the constitution itself. no implied power here
(statute, Constitution, Congress= nothing said, they’re all silent)
 Jackson’s concurrence*: president may take action not prohibited by the constitution or
a statute.
o 3 levels of executive power
 where president acts pursuant to express authority of congress, his
authority is at a maximum
 president acts in absence of congressional grant or in a denial of authority,
not in contradiction of congress, congress is just silent  twilight zone –
may or may not have authority – potentially they could both handle the
problem
 president acts in contradiction to congress – power at a minimum (This
case falls here b/c seizures have been covered by 3 statutes)
 Douglas: president can act w/o express statutory or constitutional authority so long as he
is not usurping the powers of another branch of govt. or keeping another branch from
performing its duties.
 Dissent - President has inherent authority and may act unless conduct violates the
constitution. The Korean War makes this matter necessary; President can do almost
anything
-Clinton v. City of NY
-Executive Privilege Chem § 4.3: the president to keep secret conversations w/ or memos to or
from advisors (not in the Const!!!)
-US v. Nixon (1970s)
1. Court, not President, evaluates claims of executive privilege
(Chem says this is debatable
2. Executive privilege exists (inherent powers= derive from the
supremacy of each branch within its own assigned area of
constitutional duties. Inherent powers flow from the nature of
enumerated powers) in the exercise of Article II powers
3. Executive privilege is qualified (has to relate to pres’s job) + has to
yield to countervailing interests here
-Nixon v. Administrator of General Services= even a former president may claim
executive privilege, but the Court said that the screening process created by the law was
sufficient to safeguard this interest.
-Cheney v. US District Court of District of Columbia: court says this is civil case
and not criminal case like US v. Nixon + discovery requested is broad
-Foreign Policy Chem § 4.6: powers largely unreviewable (rational basis review); More than
rational basis ie rational basis w/ bite= national security, foreign affairs
-United States v. Curtiss-Wright Export Corp.
-Treaties + Executive Agreements
-Bond v. US: Congress must ratify treaties but congressional approval is not
required for executive agreements.
-War Powers: unclear whether and how Congress can put other limits on the president’s
use of troops in foreign countries. This issue arises most notably as to whether the War
Powers Resolution is constitutional.
 a. Art I, §8 – Congress has power to declare war and raise support armies.
ii. Art II – President commander in chief of the army and navy; power to
make treaties by and with the advice and consent of the Senate
-Presidential Power + the War on Terror
-Hamdi v. Rumsfeld
-Padilla v. Rumsfeld
-Rasul v. Bush
-Boumediene v. Bush
-Immigration
-Trump v. Hawaii: valid exercise of pres power, not violate establishment
Clause of 1st A (establishment clause= freedom of religion)
o Congress delegated power to exclude classes of people? Jackson level 1, what is
deference? Rational basis review
-Impeachment § 4.7
-Nixon v. US (1993)= it will be for Congress to decide what are “high crimes and
misdemeanors” and what procedures are appropriate concerning impeachment and
removal. Court cannot say what “try” means in Art. 1 § 3, clause 6: Senate has sole power
to try all impeachments
-look at past cases for high crimes + misdemeanors: Andrew Johnson, Richard
Nixon, + Bill Clinton

Preemption Chem § 5.2

-Gade v. National Solid Wastes Management Association
-add to this? Idk what to add though

Rights
-Textual Provisions Protecting Rights Chem § 6.2.1
-Article I, §9, which places limits on Congress’s powers, declares that “[t]he
privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion, the public Safety may require it.”
-Supreme Court is likely to give Congress great latitude in regulating habeas
corpus because historically habeas relief was quite limited.
-I.N.S. v. St. Cyr, the Court held that aliens may use a writ of habeas corpus
to challenge their deportation, even though Congress had expressly
precluded appellate judicial review of deportation orders.
-Article I, §9, also states: “No Bill of Attainder or ex post facto Law shall be
passed.” Article I, §10, which contains limits on state government powers, similarly
provides: “No State shall . . . pass any Bill of Attainder, ex post facto Law, or law
impairing the Obligation of Contracts.”
-Article III, §2, states that “[t]he trial of all Crimes, except in Cases of
Impeachment, shall be by jury; and such Trial shall be held in the State where the
said Crimes shall have been committed.”
-Article III, §3, also provides: “Treason against the United States, shall consist only
in levying War against them or, in adhering to their Enemies, giving them Aid and
Comfort. No person shall be convicted of Treason unless on the Testimony of two
 Witnesses to the same overt Act, or on Confession in open Court.” Section 3 concludes by
declaring that although Congress may prescribe the punishment for treason, there shall be
no “Corruption of Blood, or Forfeiture except during the Life of the Person attained.” In
other words, only the traitor can be punished; family members and future generations
cannot be sanctioned because of someone else’s wrongdoing.
-Article IV, §2, contains the “privileges and immunities clause,” which states: “The
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States.”
-Article VI concludes that “no religious Test shall ever be required as a
Qualification to any Office of public Trust under the United States.”
-Application of the Bill of Rights to the States Chem § 6.3
-Barron v. Mayor & City Council of Baltimore, the Supreme Court expressly held
that the Bill of Rights was a restriction of federal actions, not state and local
conduct.
-the Court concluded that the Fifth Amendment was “intended solely as a
limitation on the exercise of power by the government of the United States,
and is not applicable to the legislation of the States.”
-14th A adopted: “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.”
-Slaughterhouse Cases
-except for the privileges or immunities clause, all of the other restrictive
interpretations of the Fourteenth Amendment in the Slaughter-House Cases
were subsequently overruled.
-Supreme Court used the privileges or immunities clause of the Fourteenth
Amendment to invalidate a state law in Saenz v. Roe; however, it hasn’t been
used since
-In McDonald v. City of Chicago, the plurality rejected the argument that it
should use the privileges or immunities clause to apply the Second
Amendment to the states
-Incorporate Bill of Rigts to States using Due Process Clause of 14th A (saying part of the
liberty protected under this)
-never has the Supreme Court endorsed the total incorporationist approach, but the
Supreme Court found almost all of the provisions to be incorporated.
-following rights from Bill of Rights are incorporated:
-the First Amendment’s establishment clause, free exercise clause,and
protections of speech, press, assembly, and petition;
-the Second Amendment’s right to bear arms;
-the Fourth Amendment’s protection against unreasonable search and seizures
and the requirement for a warrant based on probable cause; also, the
exclusionary rule, which prevents the government from using evidence
obtained in violation of the Fourth Amendment;
-the Fifth Amendment’s prohibition of double jeopardy, protection against self-
incrimination, and requirement that the government pay just compensation
when it takes private property for public use;
-the Sixth Amendment’s requirements for a speedy and public trial, by an
impartial jury, with notice of the charges, the chance to confront adverse
 witnesses and to have compulsory process to obtain favorable witnesses, and to have
assistance of counsel if the sentence involves possible imprisonment;
-the Eighth Amendment’s prohibition against excessive bail and cruel and
unusual punishment.
-In 2010, in McDonald v. City of Chicago, the Court held that the Second
Amendment is incorporated and applies to state and local governments; But in 2008,
in District of Columbia v. Heller, the Court held that the Second Amendment is not
limited to this and ruled that it protects a right to have guns for personal safety,
especially in the home. The District of Columbia, of course, is a part of the federal
government so the Court has no occasion to consider whether the Second
Amendment applies to state and local governments.
-four provisions of Bill of Rights that have never been incorporated and do not apply
to state and local governments:
-the Third Amendment right to not have soldiers quartered in a person’s home
never has been deemed incorporated (never reached SC)
-the Court has held that the Fifth Amendment’s right to a grand jury indictment
in criminal cases is not incorporated.
-Seventh Amendment right to jury trial in civil cases is not incorporated.
-the Court never has ruled as to whether the prohibition of excessive fines in
the Eighth Amendment is incorporated.
-Barron v. Mayor & City Council of Baltimore: whenever a case involves a state or
local violation of a Bill of Rights provision, to be precise it involves that provision as
applied to the states through the due process clause of the Fourteenth Amendment.
-APPLICATION OF CIVIL RIGHTS AND CIVIL LIBERTIES TO PRIVATE CONDUCT:
THE STATE ACTION DOCTRINE Chem § 6.4
-The Constitution’s protections of individual liberties and its requirement for equal
protection apply only to the government. Private conduct generally does not have to
comply with the Constitution.
-Civil Rights Cases= generally credited with mandating the requirement for state action
(not apply to private conduct); the Fourteenth Amendment applies only to the government,
not to private conduct
-13th A is exception here ie cannot own slaves so regulating private conduct
-another exception: statutes, both federal and state, can apply constitutional norms to
private conduct.
-Economic Substantive Due Process Chem § 8.2.1-8.2.3
-early on, argued that Constitution protected natural rights that a person possesses to own
and keep property.
-natural rights concerning property limited government actions.
-initially rejected due process claims that were trying to protect economic rights from gov
interference
- In Murray’s Lessee v. Hoboken Land & Improvement Co., the Court denied a due
process challenge to an attempt by the government to collect delinquent taxes.
-Slaughter-house Cases= court rejected substantive due process claim saying due
process clause could be used to safeguard a right to practice a trade or profession
from arbitrary government interference
-Justices Field and Bradley dissented and said that due process clause could
 limit the ability of states to adopt arbitrary laws, especially ones that interfered with
natural rights.
-Loan Association v. Topeka, decided one year after the Slaughter-House Cases, is
regarded as one of the first instances of the Court’s using natural law principles to
limit government regulatory power.20 In Loan Association v. Topeka,
-this + other cases= corporations could use the Constitution and the philosophy
expressed in cases such as Munn, the Railroad Commission Cases, and Mugler
to challenge government regulations.
-Allgeyer, the Court moved from speaking only in dicta of due process as a limit on
economic regulations to invalidating a state law based on it. Allgeyer expressed the
key themes of economic substantive due process that were to be followed for the next
40 years until 1937.
-Lochner v. NY
-NY law unconstitutional b/c interferes w/ freedom of K
-three themes that were followed until 1937: Freedom of contract was a right
protected by the due process clauses of the Fifth and Fourteenth Amendments; the
government could interfere with freedom of contract only to serve a valid police
purpose of protecting public health, public safety, or public morals; and the judiciary
would carefully scrutinize legislation to ensure that it truly served such a police
purpose.
-due process clause was used not to ensure that the government followed proper
procedures, but to ensure that laws served an adequate purpose.
-Depression -> Lochner is not so popular
-Even before Roosevelt proposed his Court-packing plan, there were initial
indications that the Court was ready to allow more government economic
regulations= Nebbia v. New York
-ends with West Coast Hotel v. Parrish
-In West Coast Hotel v. Parrish,89 the Supreme Court upheld a state law that
required a minimum wage for women employees and expressly overruled
Adkins v. Children’s Hospital and Morehead v. Tipaldo.
-made it clear in opinion that abandoning Lochner principles

-One year after West Coast Hotel v. Parrish, the Supreme Court reaffirmed its
holding and the new policy of judicial deference to government economic regulations
in United States v. Carolene Products Co.
-Court said economic regulations should be upheld so long as they are
supported by a conceivable rational basis, even if it cannot be proved that it
was the legislature’s actual intent.
-court starts overruling limits placed on Congress in Lochner Era
-In NLRB v. Jones & Laughlin Steel Corp., in 1937, the Court upheld the
National Labor Relations Act and its application to the steel industry.
- In United States v. Darby, the Court upheld the Fair Labor Standards Act and
its minimum wage and maximum hours provisions.
-Since 1937, not one state or federal economic regulation has been found
unconstitutional as infringing liberty of contract as protected by the due process
clauses of the Fifth and Fourteenth Amendments.
 -rational basis review for economic reg
-Ferguson v. Skrupa= shows that no longer did the Court interpret the due
process clause to protect a right to practice a trade or profession or even
freedom of contract.
-Equal Protection Clause Chem § 9.1-9.3
-start modern equal protection w/ Brown v. Board
-equal protection applies to the federal government through judicial interpretation of the
due process clause of the Fifth Amendment and to state and local governments through the
Fourteenth Amendment.
-on its face law discriminates OR law is facially neutral but has discriminatory impract or
discriminatory effects from its administration
-laws that are facially neutral as to race and national origin will receive more than
rational basis review only if there is proof of a discriminatory purpose (Washington
v. Davis)
-discriminatory purpose evidence= proof that the government desired to
discriminate; it is not enough to prove that the government took an action with
knowledge that it would have discriminatory consequences.
-impact of a law may be so clearly discriminatory as to allow no other
explanation than that it was adopted for impermissible purposes
(statistics)
-second way of proving discriminatory purpose is through the history
surrounding the government’s action
-A third way of proving discriminatory purpose is through the legislative
or administrative history of a law.
-proof shifts the burden to the gov to show that it would have taken the
same action without the discriminatory motivation.
-If the Court accepts the government’s justification and rejects the claim
of a discriminatory purpose, only rational basis review is used.
-If the Court is convinced that there is a discriminatory purpose, the law
is treated as a race or national origin classification and the law will be
invalidated.
-also need proof of discriminatory effect for facially neutral laws (not expressely
addressed, but it appears it’s required)
-rational basis review: Public safety, public health, and public morals are legitimate
government purposes, but they are not the only ones. Virtually any goal that is not
forbidden by the Constitution will be deemed sufficient to meet the rational basis test..
-Prior to the adoption of the Fourteenth Amendment in 1868, there was no constitutional
assurance of equal protection and thus no limit on race discrimination.
-Korematsu recognizes strict scrutiny
-Carolene Products footnote: “prejudice against discrete and insular minorities may be a
special condition” so it “may call for a correspondingly more searching judicial inquiry.”
-There is only one situation in which the Court expressly upheld racial classifications
burdening minorities: the rulings affirming the constitutionality of the evacuation of
Japanese Americans during World War II.
-Hirabayashi v. United States,
-Korematsu
-Plessy v. Ferguson
-remidies: invalidate law, injunction
-It now is clearly established that strict scrutiny is used to evaluate all government
affirmative action plans.
-Regents of Univ of CA v. Bakke
-Grutter
-Grat
-Gender § 9.4
-West Coast Hotel v. Parrish — a key case signaling the end of the Lochner era —
upheld a minimum wage law for women
-In 1971, in Reed v. Reed, the Supreme Court for the first time invalidated a gender
classification, but the Court professed to apply only rational basis review.
-In Frontiero v. Richardson, four Justices took the position that gender classifications
should be subjected to strict scrutiny.
-Because there was not a majority supporting strict scrutiny in Frontiero, the
level of scrutiny for gender classifications remained uncertain.
-Craig v. Boren, the Supreme Court agreed upon intermediate scrutiny as the
appropriate level of review for gender classifications
-First, gender classifications benefiting women based on role stereotypes generally
will not be allowed.
-The Supreme Court frequently has invalidated laws that benefit women and
disadvantage men when the Court perceives the law as being based on
stereotypical assumptions about gender roles.
-Second, gender classifications benefiting women designed to remedy past
discrimination and differences in opportunity generally are permitted.
-The Court has indicated that gender classifications benefiting women will be
allowed when they are designed to remedy past discrimination or differences in
opportunity.
-Third, gender classifications benefiting women can be based on biological
differences between men and women.
-Nguyen v. Immigration and Naturalization Service,107 the Court allowed a
third type of gender classification: gender classifications benefiting women
because of biological differences between men and women.
-Alienage Chem § 9.5
-Alienage classifications refer to discrimination against noncitizens. This type of
discrimination should be distinguished from national origin classifications, which ‘
discriminate against individuals because of the country that a person, or his or her
ancestors, came from.
-Aliens are protected from discrimination because the equal protection clause
explicitly says that no “person” shall be denied equal protection of the laws.
-Often state and local laws that discriminate against aliens can be challenged on
preemption grounds as well as for violating equal protection. The Supreme Court has
held that federal immigration laws wholly occupy the field and preempt state efforts
to regulate immigration.
-In 1971, in Graham v. Richardson, discussed below, the Supreme Court held that
strict scrutiny was to be applied to discrimination against aliens.
 -Prior to this decision, the Court had been extremely deferential to
discrimination against aliens so long as it related to a “special public interest.”
-Court justified strict scrutiny by characterizing aliens as a “discrete and insular
minority.” (Aliens cannot vote)
-Only rational basis review is used for alienage classifications related to self-
government and the democratic process.
-in Bernal v. Fainter, the Supreme Court refused to apply this exception to a
state law that created a citizenship requirement in order for a person to be a
notary public.
-The Court emphasized that this is a “narrow” exception that applies only if it is
specifically tailored to those who “participate directly in the formulation,
execution, or review of broad public policy, and hence perform functions that
go to the heart of representative government.”
-Another exception to the usual rule of strict scrutiny for alienage classifications is
where the discrimination is a result of a federal law. The Supreme Court has ruled
that the federal government’s plenary power to control immigration requires judicial
deference and that therefore only rational basis review is used if Congress has created
the alienage classification or if it is the result of a presidential order.
-However, in Hampton v. Wong, the Supreme Court clarified this and
articulated a distinction between decisions by Congress or the president and
those by federal administrative agencies; rational basis review is used only for
the former.
-Plyler v. Doe
-The Court did not expressly articulate a level of scrutiny, but it did say that
“[u]ndocumented aliens cannot be treated as a suspect class because their
presence in this country in violation of federal law is not a constitutional
irrelevancy. Nor is education a fundamental right.”
-the Court also made it clear that it was using more than rational basis review
—> Thus, it appears that the Court was using intermediate scrutiny
-Other Types of Discrimination: Rational Basis Review Chem § 9.7
-in City of Cleburne, Texas v. Cleburne Living Center, Inc., the Supreme Court used the
rational basis test to declare unconstitutional a city ordinance that required a special permit
for the operation of a group home for the mentally disabled.
-The Court rejected the city’s justifications for discriminating against the mentally
disabled, finding either that each was not a “legitimate purpose” or that the law was
not “rational” as a way to achieve the goal.
-For a time it appeared that the Court would use heightened scrutiny for laws
discriminating against the poor. In Griffin v. Illinois, in 1956, the Supreme Court held that
it violated equal protection to deny free trial transcripts to indigent criminal defendants
who were appealing their conviction.
-then the court said nah
-Supreme Court has not yet ruled as to whether discrimination based on sexual orientation
warrants the application of intermediate or strict scrutiny.
-Romer v. Evans= The Court said that the initiative failed even rational basis review.
-first time the Court has invalidated discrimination based on sexual orientation.
-Lawrence v. Texas=Court held that the right to privacy protects the right of
 consenting adults to engage in same-sex sexual activity in their bedrooms. (Focus on
privacy + due process, no level of scrutiny indicated)
-Constitutional Bases for Fundamental Rights Chem § 10.1
-rights protecting family autonomy, procreation, sexual activity and sexual orientation,
medical care decision making, travel, voting, access to the courts, and the right to bear
arms. Freedom of speech and religious freedom also are deemed fundamental rights
-Fourth Amendment’s safeguard from unreasonable searches and seizure, the Fifth
Amendment’s protection from self-incrimination and double jeopardy, the Sixth
Amendment’s assurance of a speedy trial before an impartial jury, and the Eighth
Amendment’s right to bail and prohibition of cruel and unusual punishment
-Almost all of these rights have been protected by the Court under the due process clauses
of the Fifth and Fourteenth Amendments and/or the equal protection clause of the
Fourteenth Amendment.
-Under either provision, the Court must decide whether a claimed liberty is
sufficiently important to be regarded as fundamental, even though it is not mentioned
in the text of the Constitution. Also, once a right is deemed fundamental, under due
process or equal protection, strict scrutiny is generally used.
-If a right is safeguarded under due process, the constitutional issue is whether the
government’s interference is justified by a sufficient purpose. But if the right is protected
under equal protection, the issue is whether the government’s discrimination as to who can
exercise the right is justified by a sufficient purpose.
-If a law denies the right to everyone, then due process would be the best grounds for
analysis; but if a law denies a right to some, while allowing it to others, the discrimination
can be challenged as offending equal protection or the violation of the right can be objected
to under due process.
-Ninth Amendment is used to provide a textual justification for the Court to protect
nontextual rights, such as the right to privacy. (Unenumerated rights)
-if a right is not fundamental —> rational basis
-Carolene Products footnote 4: “discrete and insular” minority or infringement of a
fundamental right.
-The Supreme Court has said that in evaluating whether there is a violation of a right it
considers “[t]he directness and substantiality of the interference.”
-compelling interest: the government has the burden of persuading the Court that a truly
vital interest is served by the law in question + that the law is nec to achieve the objective
-Constitutional Protection for Family Autonomy Chem § 10.4
-In Meyer v. Nebraska, in 1923, the Supreme Court declared unconstitutional a state law
that prohibited the teaching in school of any language except English.
-Since Meyer, the Court has expressly held that certain aspects of family autonomy are
fundamental rights and that government interference will be allowed only if strict scrutiny
is met.
-Loving v. Virginia= right to marry
Zablocki v. Redhail= right to marry
-Obergefell
-Court long has protected the right to marry as a fundamental right under both the
due process and equal protection clauses.
-Supreme Court has said that there must be a direct and substantial interference with the
 right in order to trigger heightened scrutiny.
-custody of your kids is a fundamental right
-Court has made it clear that there must be a very substantial reason before parental
custody can be terminated
-Rights of Unmarried Fathers
-Protection for Extended Family? The Supreme Court has recognized a fundamental right
to keep the family together that includes an extended family. (Moore v. City of East
Cleveland.)
-families must be related though
-also need a direct and substantial interference.
-Right to Control Ubringing of Kids
-Deference to Parents= In weighing the competing claims of parents and of the state on
behalf of children, the Supreme Court has given great deference — some say too much
deference — to parents.
-Grandparents’ Right Statutes= All 50 states have laws that accord rights to grandparents.
The underlying constitutional issue is whether such statutes impermissibly interfere with
the right of parents to control the upbringing of their children.
-Constitutional Protection for Reproductive Autonomy Chem § 10.3
-Buck v. Bell= SC upheld the ability of the government to involuntarily sterilize the
mentally retarded.
-Skinner v. Oklahoma: Court rejected this approach and declared unconstitutional the
Oklahoma Habitual Criminal Sterilization Act that allowed courts to order the sterilization
of those convicted two or more times for crimes involving “moral turpitude.”
-Court did not expressly overruled Buck v. Bell, but it’s guess that eugenics
movement was not regarded as well now
-In Griswold v. Connecticut, the Supreme Court declared unconstitutional a state law that
prohibited the use and distribution of contraceptives.
-Subsequent to Griswold, the Supreme Court recognized a right to purchase and use
contraceptives based on a right of individuals to make decisions concerning procreation. In
Eisenstadt v. Baird,
-Right to Abortion
-In 1992, in Planned Parenthood v. Casey, the Supreme Court reaffirmed Roe v.
Wade(strict scrutiny) and again held that the government may not ban abortions prior to
viability. However, the Court ruled that the government may regulate abortions before viability
so long as it does not place an “undue burden” on access to abortions.
-Roe= focus on right to privacy as part of the liberty protected under the due process
clause. (Unlike Griswold w/ Bill of Rights approach)
-If protecting fetal life is regarded as an important government interest, then laws
prohibiting abortion are justified even though they are a form of gender discrimination.60
-Webster v. Reproductive Health Services (plurality): say Roe is too rigid
-Planned Parenthood v. Casey
-plurality opinion by Justices O’Connor, Kennedy, and Souter overruled the
trimester distinctions used in Roe and also the use of strict scrutiny for evaluating government
regulation of abortions. Instead, the plurality said that government regulation of abortions prior
to viability should be allowed unless there is an “undue burden” on access to abortion.
 -“undue burden” pertains to whether there is an infringement of the right,
but the joint opinion in Casey also uses it to analyze whether the law is justified. No level of
scrutiny is articulated by the joint opinion; there is no statement that the goal of the law must be
compelling or important or that the means have to be necessary or substantially related to the
end.
-Blackmun and Stevens concurred in the judgment and would have reaffirmed
the trimester distinctions and the use of strict scrutiny.
-Waiting Periods: Prior to Casey, the Supreme Court had invalidated waiting periods
for adult women’s abortions. However, in Planned Parenthood v. Casey, the Supreme Court used
the undue burden test, rather than strict scrutiny as in Akron, and upheld the constitutionality of a
waiting period.
-“Informed Consent” Requirements: prior to Casey, the Supreme Court had
consistently invalidated these requirements, but after more likely to be upheld
-Fetal Viability Tests
-Reporting and Recording Requirements: The Court generally has upheld laws that
require the recording and reporting of information concerning abortions so long as the
information is protected as confidential.
-Medical Procedures: Many state laws have regulated doctors, including how doctors
actually perform abortions. Almost all of these have been declared unconstitutional.
-Laws Prohibiting “Partial Birth” Abortions
-The Supreme Court repeatedly has held that the government is not constitutionally
required to subsidize abortions even if it is paying for childbirth.
-Supreme Court has held that the government cannot require either spousal consent
or spousal notification as a prerequisite for a married woman’s obtaining an abortion.
-The Supreme Court has held that a state may require parental notice and/or consent
for an unmarried minor’s abortion, but only if it creates an alternative procedure where a minor
can obtain an abortion by going before a judge who can approve the abortion by finding that it
would be in the minor’s best interest or by concluding that the minor is mature enough to decide
for herself.
-Constitutional Protection for Sexual Activity + Sexual Orientation Chem § 10.4
-Bowers v. Hardwick, the Court ruled that the right to privacy does not protect a right to
engage in private consensual homosexual activity.
-Lawrence v. Texas, the Court held that states may not prohibit private consensual sexual
activity between consenting adults of the same sex (overrule Bowers v. Hardwick)
-Constitutional Protection for Voting Chem § 10.8
-Fifteenth Amendment says: “The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of race, color, or previous
condition of servitude.”
-The Nineteenth Amendment, adopted in 1920, extended the right to vote to women
-The Twenty-fourth Amendment, ratified in 1964, prohibits poll taxes in elections for
federal office.
-Twenty-sixth Amendment, adopted in 1971, extends the right to vote to all citizens who
are 18 years of age or older.
-the Supreme Court repeatedly has declared that the right to vote is a fundamental right
protected under equal protection.
 -An interesting and unresolved question is when, if at all, the Constitution would be
violated if state and local governments chose to eliminate elections for particular offices.
-Laws requiring property ownership as a requirement for voting seem to run afoul of
Harper’s forceful declaration that wealth cannot be a basis for denying individuals the ability to
vote. Yet the Court’s record in dealing with such property ownership requirements is mixed.
-The Supreme Court has held that a city may limit voting in city elections to its residents.
-Surprisingly, the Supreme Court has concluded that literacy tests are permissible as a
qualification for voting, although they have been outlawed by federal statutes.
-states cannot deny the right to vote to those being held waiting for trial and, in fact, must
provide them absentee ballots if they have no other way of voting. However, once a person has
been convicted of a felony, a state may permanently disenfranchise the individual. But, at least
where there was evidence of a racially discriminatory purpose behind the law, a state was
prevented from permanently denying the right to vote to those convicted of crimes involving
moral turpitude.
-when a state requires party affiliation as a condition for voting in primary elections —
>The Court has attempted to strike a compromise: allowing a state to limit voting in a primary to
those in the party so long as this is measured in a reasonable way.
-In Crawford v. Marion County,63 the Court, without a majority opinion, upheld the facial
constitutionality of an Indiana law requiring voter identification.
-Rule of One Person, One Vote
-Issue was Districts often were not redrawn after urban migration, causing cities to be
under-represented compared with more rural areas.
-Baker v. Carr=concluded that equal protection challenges to malapportionment were
justiciable.
-Thus, the Court said that equal protection requires that all districts be about the
same in population size; anything else impermissibly dilutes the voting power of those in the
more populous districts.
-extended to all forms of local gov
-The rule of one-person, one-vote does not require mathematical exactness in the size
of districts, but only relatively small deviations are tolerated. More latitude is given to deviations
in districting for state and local offices than for districts for the United States House of
Representatives.
-Deviations from Majority Rule Violate Equal Protection are allowed by SC ie need super
majority and not just majority
-Gerrymandering
-Gerrymandering is the practice by a political party of drawing election districts to
benefit itself and harm its opponent; political gerrymandering occurs when the party controlling
the legislature draws districts to maximize safe seats for that party.
-There are many ways in which a political party can adhere to one-person, one-vote,
but still engage in gerrymandering.
-Bush v. Gore= first time SC decided a presidential election
-The Fifteenth Amendment precludes denial of the right to vote on account of race or
previous condition of servitude. Race discrimination with regard to voting also receives strict
scrutiny under the equal protection clause of the Fourteenth Amendment as a racial classification
and as an infringement of the fundamental right to vote.
 -A final aspect of the right to vote concerns the rights of candidates and parties to get a
place on the ballot. The Supreme Court has held that strict scrutiny is appropriate for restrictions
in this area.
-The 2nd A right to bear arms Chem § 10.10
-District of Columbia v. Heller, the Court for the first time invalidated a law regulating
guns and found that the Second Amendment is not limited to protecting a right to have firearms
for militia service.
-There long has been a debate about the meaning of the Second Amendment, which
provides: “A well regulated Militia being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
-One side of the debate sees the latter clause as being key and interprets the Second
Amendment as creating an individual right to possess firearms. The other side of the debate
emphasizes the first clause and says that it is a right only for purposes of service in the militia.
-The key question after Heller is what level of scrutiny should be used for this right. The
Court did not say.
-In McDonald v. City of Chicago, the Supreme Court ruled that the Second Amendment
applies to state and local governments.
-in both Heller and McDonald, the Court focused only on laws that prohibit virtually all
possession of handguns. The Court had no occasion to consider the constitutionality of more
limited regulations.
-First A Chem § 11.1
-First Amendment was meant to prohibit licensing of publication such as existed in
England and to forbid punishment for seditious libel. Beyond this, though, there is little
indication of what the framers intended.
However, in New York Times v. Sullivan, in 1964, the Court declared: “Although the
Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the
court of history.”
-The Supreme Court frequently has declared that the very core of the First Amendment is
that the government cannot regulate speech based on its content.
-The requirement that the government be content-neutral in its regulation of speech
means that the government must be both viewpoint neutral and subject matter neutral.14
Viewpoint neutral means that the government cannot regulate speech based on the ideology of
the message. Subject matter neutral means that the government cannot regulate speech based on
the topic of the speech.
-The Supreme Court has identified some categories of unprotected speech that the
government can prohibit and punish. Incitement of illegal activity, fighting words, and obscenity