Constitutional Law Outline

For each category:

1. History
2. Era What signifies this?
3. Rule
4. Major Cases
5. Squib Case Table
6. Conclusions What affect?

Separation of Powers
Supreme Court Authority:
Judicial Review
Federal: Legislation and Executive Acts
State Court Decisions
Limits of Adjudication
Justiciability (Political Questions)
Case Requirements
Standing
Advisory Opinions
Ripeness and Mootness

Judicial Review
Concept of JR grows out of the Constitution, and was intended by the FFs (Federalist 78 neither
purse nor sword)
The Constitution is a superior document it takes a constitutional amendment to trump a SC
decision
o 11th gave states immunity from some cases in federal courts
o 14th gave citizenship to blacks
o 16th allowed a federal income tax
o 26th lowered voting age
Without the SC, the Constitution is a document without meaning no limit on Legislature

Federal
Marbury v. Madison (1803)
CJ Marshall created the idea of JR by stating:
o The Constitution is an ironclad, superior document trumps all other legislation
o The duty of the Sup. Ct. is to uphold the Constitution, not to follow Congress
SC must solve conflicts of law
Operates under checks and balances
Marshall denied a writ of mandamus in this case because neither Article III nor 13 of the
Judiciary Act allow the SC original jurisdiction in this case (only appellate)

State
Martin v. Hunters Lessee (1816)

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SC established JR over state actions and court decisions there must be one voice
Issue of whether federal law or state law is supreme Court says that federal law is
o Rejected the constitutional idea that federal government cannot act upon the
sovereign states (also rejected in McCulloch)

Case Issue Rule Authority Outcome

Marbury v. Whether the SC has the (1) the Constitution Checks and Established
Madison authority to declare the trumps all else Balances, JR over
(1803) Constitution superior to (2) the SC has the duty Supremacy federal
congressional legislation of protecting the Clause actions
and executive acts superiority of the
Constitution
Martin v. Whether the SC has JR The SC has the final Article III Established
Hunters authority over state authority in deciding all (appellate JR over
Lessee actions issues it is the issue, power not state
(1816) not the court that gives limited to a actions
the SC jurisdiction particular
jurisdiction)
Cohens v. Whether federal or The SC has the Supremacy Established
Virginia crime law reigns supremacy to provide JR Clause JR over all
(1821) supreme in criminal in any type of case state
cases actions
Cooper v. Whether states have to SC decisions are Supremacy SC
Aaron follow SC decisions supreme to all law all Clause decisions
(1958) (school segregation) must follow as law
Dickerson v. Whether Congress can NO Congress cannot Constitution SC
US overturn SC decisions overturn a SC decision decisions
(2000) without a constitutional without violating the can only be
amendment Constitution because the overruled
decisions set up by the SC
constitutionality

Limits to Adjudication

Justiciability
WHAT can be heard before a court

Political Question Doctrine

The SC cannot make decisions on political issues
Any question arising out of the Guaranty Clause (Article IV 4: all citizens are guaranteed
access to a republican government) is non-justiciable because it is inherently political
o Political questions arise from relationship between branches of the federal
government, not between federal and state governments
o It is the job of Congress, not the SC, to determine the path of Republican

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government
Baker v. Carr (1962)
A Tennessee redistricting claim brought under the EPC (current plan blocks access to the
political process) examined by SC and found to be justiciable (remand)
Questions are political if:
1. the Constitution grants power over this issue to another branch
2. another branch would be more competent to redress this issue
3. there is a policy decision standing between the issue and a decision analysis (courts
cannot make policy decisions)
4. a decision would embarrass/disrespect another branch
5. another branch already made a decision on this issue, and changing that decision
would result in chaos
6. there is likely to be a different answer from another branch (avoid embarrassment of
duplicitous decisions)
Frankfurters dissent argues that the Guaranty Clause has no place in court legislation is all
about compromise, not judicial band-aids
Nixon v. United States (1993)
Are issues of impeachment (of a federal judge) justiciable? NO
There is no Article I evidence ( 3, cl. 6) that JR was intended in legislative self-regulation
o There are already two trials involved (criminal + impeachment)
o Impeachment is the only check on the judiciary by the legislature (cant abolish it)
o Impeachment is a political process
What is non-justiciable?
Impeachment (Nixon v. US)
Constitutional amendment questions (Coleman v. Miller)
Presidential elections
o Bush v. Gore court intervention only to meet 12th amendment deadline

Advisory Opinions
The Court may not issue advisory opinions for another branch they have their own lawyers
Advisory opinions would fall outside the role of the SC envisioned in Article III

Case Issue Rule Authority Outcome

Baker v. Carr Whether political If none of the political Article III SC found for
(1962) redistricting EPC questions are answered s in EPC
claims are justiciable affirmatively, then issue claim
is justiciable remanded
Luther v. Where is an issue non- 1. where a decision will GC Established
Borden justiciable? = chaos Article III ways to find
(1849) 2. where the state a case non-
doesnt recognize court justiciable
3. where the GC is the
only constitutional
authority on this issue

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Goldwater v. Is treaty abrogation NO because Constitution No treaties in
Carter (1979) justiciable? Constitution is silent on (grants court
courts authority in Exec. and
foreign policy Leg. power)
Powell v. Does the SC have the YES because the Article I SC is the
McCormack authority to review dispute requires a constitutional
(1969) congressional disputes constitutional interpreter
between Art. I 2 and interpretation (SCs job)
5 (unseating
members)?
Nixon v. Are matters of judicial NO this is a purely Article I Impeachment
United States impeachments political question is non-
(1993) justiciable? justiciable

Standing
WHO can be heard before a court

Constitutional Requirements v. Prudential Bans

Constitutional:
1. Claimant must have suffered personal injury/threat as a result of the defendants action
2. Claimant must be able to reasonably trace his injury to the defendants conduct
3. Claimant must be able to seek adequate judicial redress
Prudential:
1. Claimant must present his own rights and interests (no third party claims)
2. Claimant cannot bring wide public grievances
3. Claimants complaint must fall within the courts jurisdiction

Case Issue Rule Authority Outcome

Warth v. Can a group bring suit NO standing Constitutional NO standing
Seldin for the potential requirements ban third and prudential for
(1975) exclusion danger of party claims and limits to generalized
zoning ordinances? generalized grievances standing claims
Lujan v. Can a group bring a NO (1) there is no Constitutional NO standing
Defenders of general claim for harm specific, personal and prudential for
Wildlife to mankind and injury, (2) there is no limits to impersonal
(1992) animals for decreased adequate remedy standing claims
species protection sought
funding abroad?
Friends of the Earth v. Laidlaw Environmental Services (2000): people deterred from using a
polluted lake had standing to sue even though there was no real harm
Allen v. Wright (1984): black mother denied standing to sue IRS for failing to provide tax
exemptions to a private school from which she was discriminated
Craig v. Boren (1976): third party beer retailer allowed age discrimination claim because Court
found that buyer and seller had same economic interests in case

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Frothingham v. Mellon (1923): individual tax payers lack standing when suing government for
policies not directly affecting them because harm is too minute
Flast v. Cohen (1968): exception to Frothingham noted for Establishment Clause claims limiting
spending to religious institutions
United States v. Richardson (1974): Frothingham affirmed in claim requesting disclosure of CIA
operatives
Schlesinger v. Reservists Committee to Stop the War (1974): members of the reserve army lack
standing to challenge congressional involvement in reserves (if they cant sue who can???)
Elk Grove Unified School District v. Newdow (2004): father denied standing to challenge use of
God in Pledge of Allegiance because his family status was questioned
Raines v. Byrd (1997): Court denied congressional challenge to line item veto because Congress
has its own redress for Executive Branch
Department of Commerce v. United States House of Representatives (1999): Congress as a
whole cannot bring suit against an agency for loss of seats in census only individuals and
counties who may lose specific seats can

Ripeness and Mootness

WHEN an issue can be heard by a court

Ripeness
A court can deny standing if a case is brought too soon
United Public Workers v. Mitchell: workers only said that they would violate a law
Mootness
A court will not hear a case whose time has passed because facts/laws have changed
Exception: Roe v. Wade (court battles last longer than pregnancies)

Federalism
Federal v. State Powers
Separation of Powers
Executive Privilege

Federal v. State Powers

Federalist 51 Madison gives a good impression of federalism as double security
Federalist 25 Hamilton says that national defense is good for states because they are unlikely
to succeed on their own
Federalist 45 Madison says that states retain the most power
Separation:
o Art. I and II enumerate federal powers
Art. I, 10 bars state acts that interfere with enumerated powers
o 10 amendment leaves everything else to the states
th

Articles of Confederation restricted federal power too much problematic

Federalist 44 Madison discusses the use and need for the N&PC necessary to proper
legislative functioning

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McCulloch v. Maryland (1819)

Can a state question the validity of a federal law (establishing a national bank)? NO
Constitution is a superior document because the people ratified it
N&P Clause allows federal government to do anything that is necessary and proper in the
function of a government implied powers (10th amendment)
o Use a means-ends test to determine if there is an implied power
o Congress needed to establish a national bank
o There are degrees of necessity FFs intended N&P to grant powers, not
limitations
Use the fair construction of constitutional words
Taxing the bank is illegal because it is counter-productive to the constitutional intent (supreme
power) states can only tax individuals
Rule: States cannot impede, retard, burden or seek to control the legitimate actions of the US
government

Separation of Powers

Separation in General
Touby v. United States (1991): Congress can seek assistance from the Executive
States v. Curtiss-Wright Export Co. (1936): Congress should not limit the Executive because the
President is the representative of the nation

Specific Actions
Steel Seizure Case(1952)
Executive branch tried to stop a steel strike during the Korean War (in interest of defense)
NO
Labor disputes are a legislative problem (President is the law enforcer, not law maker)
Concurrence: president undertakes a duty to protect Constitution this is a clear violation
Dissent: the President should be empowered to avert disaster
Dames & Moore v. Reagan (1981)
Can Reagan return Iranian assets in violation of Carters executive precedent? YES
The President may act under his congressionally-given powers (ability to make executive
agreements)
INS v. Chandha (1983)
Can Congress make laws that only require one house to invalidate an executive action? NO
Congress must follow the structure in the Constitution (defer to FF intent) bicameral
legislature BOTH houses must agree
Line Item Veto
Clinton v. New York (1998)
SC invalidates use of line item veto President cannot act as a legislature (absence of power
in Constitution = no power)
Check already exists in the veto that is the option available to the Executive
Impeachment

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Presidents can be impeached for high crimes and misdemeanors bribery, treason and
crimes against the public trust

Executive Privilege

The Executive
Presidential powers are vastly extended beyond FF intent
United States v. Pink (1942): executive agreements will be treated as treaties because they
have similar dignity

Privilege
In General, the SC recognizes a qualified presumptive privilege for the executive Nixon and
Clinton act as the limits to this power (it is NOT absolute)
Case Law:
Mississippi v. Johnson (1867): President (before Nixon) exempt from judicial proceedings
Sealed Case (1998): Secret Service does not have immunity
Nixon v. Fitzgerald (1982): Presidents have complete civil immunity (no liability for official acts)
United States v. Nixon (1974)
Can the President invoke executive privilege to avoid a federal subpoena? NO
Nixon argues that Article II allows privilege but SC holds that there must be a separation of
powers
Only diplomatic/military secrets have absolute immunity BUT court will use in camera review
and act respectfully and responsibly strike a balance between judicial need and the ability of
the President to do his job
Clinton v. Jones (1997)
Is the President immune for acts committed before he took office? NO
Clintons request to stay proceeding was rejected acts occurred before term = no immunity
(FF: the Presidents character has no immunity), and it is unlikely that a trial will interfere
with Clintons ability to do his job

Commerce Clause

A Growing Need/The Conservative Era: 1824-1936

CC added to Constitution as a response to trade problems under Articles of Confederation
Animosity between states necessitated congressional oversight and regulation
Gibbons v. Ogden (1824): Commerce = traffic, navigation, trade
Commerce is internal and external, state and national issue
Must be completely inside state to be intrastate
Unlimited congressional power to regulate interstate commerce broad powers
Sugar Trust Case (1895): Court allowed a sugar monopoly (98% control) under the notion that
Congress cannot regulate a manufacturing monopoly because manufacture is not commerce (does
not fall under CC) slippery slope argument given for allowing manufacture regulation

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Addyston Pipe & Steel Co. v. United States (1899): Court extended CC to cover prices (pricing =
commerce)
Shreveport Rail Case (1914): Court upheld an ICC order allowing regulation of intrastate RR
pricing when it interfered with interstate RR functioning
Congress reigns when there is a dispute between state and federal control
Swift & Co. v. United States (1905): Court upheld price-fixing injunction for meat because meat
is a part of the stream of commerce
Stafford v. Wallace (1922): Congress can regulate local stockyards as part of the stream of
commerce
Late 19th century CC use to police states
Gambling, prostitution, theft
Congressional regulations of morality
Regulations that prevent interstate movement of immoral goods
The Lottery Case (1903): Court upheld the Lottery Act prohibition of transportation of lottery
tickets over state lines (tickets = commerce, states have a congressionally-protected right to
regulate morality within their borders)
Hipolite Egg v. United States (1911): Court upheld confiscation of deleterious eggs, even
though they were already in intrastate commerce stream mingling with local products doesnt
take away a products origin
Hoke v. United States (1913): Court upheld Mann Act prohibiting the interstate transfer of
women for immoral purposes
Hammer v. Dagenhart (1918): Court invalidated ban on interstate traffic of products of child
labor
Use of interstate commerce is not the harmful act (harm is entirely local)
o There is no federal jurisdiction under CC
o Child labor laws = state jurisdiction
Congress doesnt have the power to regulate the morals of states
Dissent: If Congress can regulate the direct effects, why not the indirect as well?
New Deal programs (win some, lose some) justified under CC because problems are economic
RR Retirement Board v. Alton RR Co. (1935): Court invalidated mandatory RR retirement and
pension plan under CC law was not made to regulate interstate commerce under the intentions
of the CC
Schechter Poultry Corp. v. United States (1935): Court invalidated federal legislations regulation
of NY wage and hour requirements You cannot use federal law to regulate intrastate
commerce
No CC justification because NY local practices have no effect on interstate commerce
Carter v. Carter Coal Co. (1936): Court invalidated Coal Act regulations of hours and wages
in coal mines there is no general welfare provision in the Constitution (esp. not in CC) labor
laws = production, production NOT commerce
Rule: Court must examine whether a products affect on interstate commerce is DIRECT
(okay to regulate under CC) or INDIRECT (no federal regulation)
Court-packing: in 1937 FDR announced his plan to appoint a new justice for every justice over
age 70 who had served 10+ years on the bench (up to 15 justices)
Response to Courts invalidation of ND programs
Save the Constitution from the Court

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Lowering Limitations/The Liberal Era : 1937-1995

Court utilized RBR to give broad deference to Congress
Extensions to criminal law, civil rights law (13th and 14th amendments)
To get CC okay, look for:
1. Jurisdictional hook
a. Must demonstrate a connection to interstate commerce
2. Economic activity
3. Findings of Fact
a. Can be broad must be a connection between CC and the actual law
4. RBR
a. Can you reasonably link activity prevented to interstate commerce?

NLRB v. Jones & Laughlin Steel Corp. (1937)

NLRB (federal fair labor investigator) brought suit against Jones for intrastate union
discrimination (only supposed to investigate industries involved in interstate commerce)
Court says that CC regulates the source of commerce, not the source of injury
Rule: Congress may regulate anything that has a substantial relation to interstate commerce
Court rejects Carter and Schechter as guiding
If a corporations reach is national, how can they be exempt from congressional control?
Court found for , upheld NLRB acts
Dissent: any effect on interstate commerce in this scenario would be indirect and remote
no CC power
United States v. Darby (1941)
Lumber manufacturer challenged constitutionality of regulating local hours and wages Are
the hours and wages of producers so closely related to interstate commerce that Congress has
jurisdiction under the CC? YES
Can commerce regulate work that produces goods for interstate commerce? YES
o Congress can regulate anything that may lead to unfair competition
o Fear that unfair competition unfair and unhealthy working conditions
Although the manufacturer is local, their products cross state lines
o Without products to ship and sell, there would be no interstate commerce
Relies on The Lottery Case congress may regulate any good that may be dangerous to the
public health and welfare
o Purpose of regulation = promote public health and welfare

New era of cases rely on whether the effect of the product on interstate commerce is enough to
get regulation under the CC
Wickard v. Filburn (1942): small dairy farmer appealed his conviction for harvesting above his
wheat quota court upholds conviction, even though farmer is local producer and wheat is not
sold off his farm because Congress can regulate if an act touches interstate commerce
Wheat quotas instituted in order to raise wheat price on open market and stabilize economy
h farmer must buy what he cannot produce to help the economy
Court sheds direct v. indirect approach to CC jurisprudence

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o Look instead to substantial effect on interstate commerce
Maryland v. Wirtz (1968): Court upheld labor act amendments that extended regulation of hours
and wages to all employees at corporation affecting interstate commerce (rather than just those
employees who affected commerce directly)
Hodel v. Virginia Surface Mining & Recl. Assn (1981): Court upheld congressional ability to
regulate local activities that might have an effect on other states pollution levels (only RBR
required)
Title II of 1964 CRA enacted under CC powers because hotels serve interstate travelers
Heart of Atlanta Hotel v. United States (1964): Court upheld Title II under the idea that racial
discrimination at hotels in unconstitutional because segregation is a deterrent to interstate travel
commerce threatened
Katzenbach v. McClung (1964): Court upheld Title II application to restaurants there is an
effect on interstate commerce because blacks arent eating out or traveling (RBR)
Perez v. United States (1971): Court upheld federal loan sharking + violence act because crime
(especially racketeering) substantially effects interstate commerce
o Stewarts dissent: How is this crime different than any other?

New Limits: 1995-present

CC only applicable if action/law meets Lopez standards

United States v. Lopez (1995)

appeals conviction under federal law for possession of a handgun on school grounds
(statute passed under guise of CC but argues that gun possession is unrelated to interstate
commerce)
SC law is unconstitutional because it is beyond the limits of the CC
CC can be used in three ways:
1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. activities have a substantial relationship to interstate commerce
Guns at school have nothing to do with commerce Law invalid (slippery slope)

United States v. Morrison (2000)

SC applies Lopez factors to determine that gender-motivated violence statute does NOT
substantially affect commerce
Congress cannot regulate non-economic crimes (new era of jurisprudence) goes against FFs
intentional deletion of a federal police power
Law enacted under 14th amendment and CC there is no federal jurisdiction under 14th

The text of the Constitution only grants CC power to commerce between states, with foreign
nations, or with Indian tribes

The 10th and 11th amendments act as external limitations on congressional CC powers because
they restrict what the federal government can do in regard to states

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10th amendment

In General
Authorizes states a general police power Congress can only police through some other power
States argue that Congress cannot police states early cases hinted that this might impede on
state autonomy
Coyle v. Oklahoma (1911) invalidated federal law that specified the capital of Oklahoma upon
making it a state ability to name your own capital is an essential state function
United States v. California (1936) CA argued that it should be immune from federal RR safety
regulations because it was operating its RR as a sovereign state Court said that there is no
immunity from federal regulation as long as federal government treats public (state) and private
(individual) concerns equally
New York v. United States (1946) word of caution said that Congressional treatment of the state
may become so harsh that it interferes with the sovereignty of the state

Case Law
New York v. United States (1992)
Court invalidated federal waste disposal incentive to states because the federal government
cannot compel state action (federal power is only over people) under the 10th amendment
o Congress can encourage state action through incentives, but not compel
Government cannot compel action because it = coercion (lowers the accountability of state
governments)
Social utility does not override constitutionality
Printz v. United States (1997)
Court strikes federal law requiring local police to enforce federal gun control 10th
amendment forbids federal government from compelling local officials to carry out federal
programs
Policed powers granted to the Executive (not Legislature) maintain separation of powers

Anti-Commandeering Principle
Federal statutes cannot commandeer the legislative authority of states
Hodel v. Virginia (1982) three part test (predecessor to NY and Printz tests):
Statute must regulate states as sovereign states
Statute must involve matters that are indisputably matters of the sovereign
State compliance with the regulation cannot impair their ability to carry out their affairs
Court looks for commandeering language language that commandeers the authority of the
state
usually comes with spending power (but this can be seen as constitutional when it is treated as
an incentive rather than a regulation New York)

Process Theory

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Garcia v. San Antonio Metropolitan Transit Authority (1985): The SC can intervene when there
is a failure in the political process It is the Courts job to ensure that congressional limitations
on states are constitutional
National League of Cities v. Usery (1976) Fair Labor Act extended to state governments
Court says that Congress cannot impermissibly interfere with significant [state] government
function. Court was concerned that requiring certain labor practices in traditional state domain
would be an undue invasion of state autonomy
Dissent: advocates judicial restraint
JR should not be the process by which state autonomy is protected Process Argument
(aka Process Theory): the Court should defer to the process unless someone is treated so
unfairly that they can never seek justice under the process

11th amendment

In General
11th amendment provides an external limitation to the national power of the judiciary
Bans diversity jurisdiction when suing a state or foreign nation
The 14th amendment supersedes the 11th so congress can regulate states under the 14th
In General:
Citizens can sue state officials under Edelman, the federal government can sue states directly,
and citizens can sue cities directly
States can waive sovereignty and allow suits the federal government can condition aid
upon this waiver
You can sue a public official in his private authority (his public authority is immune under the
color of the law)
Today:
You cannot sue your state in another state (Alden v. Maine, 1999)
State liability is limited

Case Law
Hans v. Louisiana (1890): the 11th amendment restricts diversity and federal question jurisdiction
Edelman v. Jordan (1974): you can sue a public official under the color of the law, but only for
prospective laws (forward-looking) injunctive relief is only available to disallow future actions
Fitzpatrick v. Bitzer (1976): Congress can allow states to be sued directly under 5 of the 14 th
amendment (DPC) Congress can allow states to violate EPC (i.e. AA)

Due Process

Due Process

Incorporation of Individual Rights

Individual Rights are limitations on state power granted under the DPC (5th and 14th amendments)
No incorporation pre-Reconstruction amendments

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Incorporation must be on a case-by-case basis there is no automatic incorporation

Case Issue Rule Authority Outcome

Barron v. Can an individual sue a NO there is no federal 9th and 10th No
Baltimore city for taking his jurisdiction for this case incorporation
(1833) property without just because the 9th and 10th of BoR rights
compensation under 5th amendments make it onto states
amendment? very clear that the BoR (pre-14th)
only applies to the
federal government
Dred Scott Can Congress pass NO taking away 5th Slave =
(1857) laws to end slavery? someones property property
interferes with DP under DPC
of 5th
Slaughter- Do the 13th and 14th NO zoning 14th 14th protects
House Cases amendments protect segregation (for health) freed slaves,
(1873) butchers from police is a legitimate police not butchers
empowered power that the 14th was
monopolies? not intended to protect
Saenz v. Roe Can a state condition NO (1) EPC protects 14th EPC States cannot
(1999) welfare benefits on the right to travel, (2) and P&IC condition
residency length? P&IC protects the right federally-
to state and federal funded aid on
privileges (welfare in residency
any state) length

Post-Reconstruction, the SC allowed the 14th to incorporate some of the BoRs onto states:
Incorporation:
Powell v. Alabama (1932): DP applies to criminal law
Twining v. New Jersey (1908): rights are incorporated not merely because they are part of
BoR, but because they are essential to DP
Palko v. Connecticut (1937): BoR incorporated when right fundamental to the concept of
ordered liberty (if neither liberty nor justice would survive without it)
Adamson v. California (1947): SC implements selective incorporation in upholding Palko
Effects:
Saenz v. Roe (1999): Court invalidated a CA law granting lower welfare benefits to newer
state residents (see below)
United States v. Guest (1966): although Constitution does not explicitly grant the right to
travel between states, the right is implicit
Crandall v. Nevada (1867): the right to travel within the US is implicit
Edwards v. California (1941): CC implies a right to travel cites Baldwin v. Seelig to assert
that states cannot isolate themselves
Shapiro v. Thompson (1969): precursor to Saenz states cannot restrict welfare benefits on
length of residency under 14th

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Dunn v. Blumstein (1972): states cannot restrict voting rights based on length of residency or
penalize the right to travel
Memorial Hospital v. Maricopa County (1974): states cannot condition access to emergency
medical treatment on length of residency
Sosna v. Iowa (1975): it is okay for a state to require a one-year waiting period to get a
divorce because family law is an exclusively state jurisdiction

Privileges and Immunities Clause

Slaughter-House:
There is a difference between P&I awarded by states and those awarded by the federal
government
States must give the same P&I to travelers as they give to their citizens
States can create their own list of fundamental rights
Federal P&I do not mirror state-given rights cannot give federal government too much
power

Substantive Due Process

SDP: economic regulations privacy issues
SDP used to cement fundamental rights when there is no textual support
Look to the substantive nature of the laws is there a substantive liberty interest involved? (does
the state have a good enough reason to deny you the right?)

Economic Regulations
Lochner antecedents:
Calder v. Bull (1798): Court invalidated probate legislation on the idea that the Constitution
exists as a social compact between the people and the legislature the people make the legislature
and it must be governed this probate law rejects natural justice and reason unconstitutional
Dred Scott v. Sanford (1857): SDP applied to uphold a slave owners fundamental right to his
property
Davidson v. New York (1877): Courts formal acknowledgment of the complexity of DPC
Munn v. Illinois (1877): Court recognized the need and legitimacy of regulation to promote the
public good
Santa Clara County v. Southern Pac. RR (1886): corporations are people under the 14th laws
apply equally
Chicago, M. & St. P. RR Co. v. Minnesota (1890): Court upholds the right to JR of RR pricing
Mugler v. Kansas (1887): Court upheld their right to sustain legislation for the public moral good
by upholding prohibition statutes
Allgeyer v. Louisiana (1897): Court used DPC to invalidate a LA statute that deprived people of
freedom to conduct business
Lochner v. New York (1905)
NY statute regulating baker hours is unconstitutional interferes with the right to contract
under 14th inappropriate use of the states police power
o Men can stand up for themselves baking is not an especially dangerous
profession, so they do not require extra state protection

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14 supplies some fundamental rights right to contract, right to purchase and sell labor
th

o Rights can only be taken away by a reasonable police power (need to protect
public health and welfare)
Lochner Era:
Muller v. Oregon (1908): female labor laws are okay because women are delicate creatures
needing the protection of men (legislators) to produce healthy offspring
Bunting v. Oregon (1917): 10-hour workday maximum (plus 3 hour OT with time and a half pay)
upheld for all people
Coppage v. Kansas (1915): the freedom to contract prohibits employers from banning union
membership (unions are necessary to create a negotiation equality)
Adair v. United States (1908): no federal yellow dog union laws banned through 5ths DPC
Adkins v. Childrens Hospital (1923): Court banned female minimum wage laws stating that
women got enough protection under 19th amendment
Williams v. Standard Oil Co. (1929): states can only regulate prices where there is a public
interest
New State Ice Co. v. Liebmann (1932): state cannot prohibit business entry into the market of
non-public companies
Weaver v. Palmer Bros. Co. (1926): there is a limit to public health standards shoddy parts can
be used as long as they are sterilized and disclosed on label
Nebbia v. United States (1934): SC upheld law fixing the price of milk (promotes public health
and welfare through economics) economic regulation is allowed where the ends require an
increased public health standard
Court should defer to the legislature (RBR) when there is a reasonable use of the police
power
West Coast Hotel v. Parrish (1937): court upholds minimum wage for women because it is in the
publics best interest to help women (weaker sex) so that they can produce healthy babies
United States v. Carolene Products (1938): SC upheld ban on filled milk inferior milk is
injurious to the public health (Nebbia established that Congress must decide when this is true)
There should be a general presumption that ordinary commercial regulations have a rational
basis (rational basis = plausibility)
FN4: SC will apply SS where there are discrete and insular minorities
Racial and religious minorities that are vulnerable under the judicial process
You must be in the political process and blocked somehow
Olsen v. Nebraska (1941): law must have constitutional roots to be good
Ferguson v. Skrupa (1963): SC MUST defer to the legislature not a super-legislature
BMW v. Gore (1996): Court can invalidate excessive awards of punitive damages under SDP and
PDP
Eastern Enterprises v. Apfel (1998): retroactive provisions in property contracts are
unconstitutional because they violate DP
Williamson v. Lee Optical (1955): SC uses loose RBR to uphold eye care legislation laws are
okay as long as the legislature might have had a reasonable basis for the law

Non-economic Regulations

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 Constitutional Law Outline
Privacy
Pre-Griswold case law:
Meyer v. Nebraska: establishes the right of pupils to acquire knowledge, and right of parents to
control that education
Pierce v. Society of Sisters: right of parents to bring up their children outside of state control
Skinner v. Oklahoma: three strikes laws cannot force castration on sex offenders (means have to
be narrowly tailored to the ends of diminishing liberty interests SS)
Buck v. Bell: mentally ill offenders can be castrated

Griswold v. Connecticut (1965)

Right to marital privacy (use of contraceptives) found within the penumbra of other
constitutional rights
o 1st assembly, 3rd quartering, 4th search and seizure, 5th self-
incrimination, 9th enumerated rights cannot seen viewed as to deny other rights
Marriage is sacred, privacy is at the heart
Can also look to basic values implicit in the concept of ordered liberty

Eisenstadt v. Baird (1972): extended right of privacy (use of contraceptives) to individuals

Carey v. Population Services International (1977): SS used to allow minor access to
contraception (further expansion of privacy rights)

Roe v. Wade (1973)

Court denies the Griswold penumbra idea to violate an abortion statute under the 9th
amendment
The right to privacy is implicit and fundamental
The right to abortion is not absolute there are limits to abortion (trimester structure)

Doe v. Bolton (1973): states cannot vote to exclude abortions or establish procedural
requirements
Consent, Regulations, and Casey details on Notes, pp. 66-68

Planned Parenthood v. Casey (1992)

SC upheld the essential details of Roe and established a great deal for womens rights
DPC has been used to protect personal liberties since Mugler in 1897
Overrules trimester framework, but lays out details of abortion law

Sexuality
Court refused to address sexual conduct in examining abortion but forced to address it in terms
of homosexuality
Bowers v. Hardwick (1986)
SC upheld sodomy laws as applicable to homosexuality because the right to privacy applies to
marriage, procreation and family
Sodomy laws are deeply rooted in American tradition, but the act of sodomy is NOT
SDP Rule: To overrule the law requires a right that is implicit in the concept of

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ordered liberty and deeply rooted in the American tradition
Not all crimes committed in the home are immune look to morality

Lawrence v. Texas (2003)

SC overruled Bowers to invalidate a Texas sodomy criminal law
Bowers invites discrimination NOT okay
Privacy is NOT confined to marriage people have the liberty to be gay even if it isnt
proscribed by the Constitution
Overrule the Bowers arguments regarding history most sodomy laws not until 20th century
EPC and DPC are linked both protect homosexuals
OConnors concurrence uses EPC alone plain discrimination (no moral bans allowed)

State Protection
White v. Rochford: mother won 7th Circuit case when police refused to protect her children after
they arrested their guardian

DeShaney v. Winnebago (1989)

There is no constitutional (DPC) duty to protect abused children
Does SDP allow a right of protection from violence? DPC only protects people from the
state, it doesnt offer them protection
State doesnt require obligation to provide housing or abortion
8th amendment forces state to protect prisoners because prisoners lose their liberty interests
and are involuntarily committed
Blame should be placed on victims father, not state
There is no EPC claim because the state did not deny protection as discrimination

Death
Cruzan v. Director (1990)
SC found (1) there is a right to refuse medical treatment and (2) a discontinuance of nutrients
is not required in the Constitution
Balance individual interests v. personal liberties
Heightened evidence to ensure the victims wishes is okay given the potential abuses
Scalias concurrence: the federal courts have no right to interfere in state decisions
There are 4 situations under which the Court addresses the right to die:
1. suicide NO right
2. withdrawl of life support for the terminally ill YES (Cruzan)
3. physician-assisted suicide NO (Glusckberg)
4. active euthanasia NO
Vacco v. Quill (1997): Court upheld ban on assisted suicide, but allows termination of support
(not EPC because everyone is treated the same) doctor takes on a different role in each
scenario
Washington v. Glucksberg (1997)
Court invalidated a right to physician-assisted suicide there is no 14th DPC right to die
NO historical roots

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 Constitutional Law Outline
There are state interests in preventing suicide: preventing causes of suicide, protecting the
integrity of the medical profession, protection of vulnerable groups, protection against
euthanasia
Schiavo (2005)
In order to get a TRO, you need to pass the Remedy Law Test:
1. you will win (court said that it was unlikely that parents would win)
2. you have an irrepairable injury (cannot be repaired with money life qualifies)
3. you can balance the equities (one party needs the injunction more than the other needs the
action to proceed)
4. public opinion is on your side
Determining this case on remedy law was an easy way out for the court
o Necessity Rule: The Court doesnt address constitutional issues unless it is
absolutely necessary

Equal Protection

Race
Straughter v. West Virginia: black mans conviction overruled by SC because convicted by an all-
white jury violation of EP rights

Strict Scrutiny
See below

Segregation
Korematsu v. United States (1944): Court used SS to uphold Japanese internment camps as a
pressing public necessity
Hirabayashi v. United States (1943): upheld Japanese curfew
Plessy v. Ferguson (1896): court upheld separate but equal RR conditions under EP right to
equality, but not to integration there is no badge of inferiority, but rather a legitimate police
power that promotes the public good (legislation is powerless to equalize race)
Brown v. Board (1954)
Court invalidates school segregation under EP everyone has right to public education no
inferiority complex
Didnt say anything about SS used stigmas and social science information
Rejects precedent in light of social change and necessity
Constitution is a changing document EP should not decided on precedent or FF intent
Criticism: If education and stigmas are so important, why didnt they include desegregation
efforts in the 14th?
Brown II demanded all deliberate speed and prompt and reasonable efforts to desegregate
Bolling v. Sharpe (1954): Brown for DC schools
Green v. County School Board (1968, p. 698): Court invalidated districts actions under the
Brown freedom of choice plan because not enough segregation had occurred 85% of black kids
remained at black school, no whites at black school

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 Constitutional Law Outline
Swann v. Charlotte-Mecklenburg Board of Education (1971, p. 698): Court disapproved of
Charlottes plan because it only implemented some redistricting and some bussing
Keyes v. School District (1973, p. 699): s must prove a districts attempts to retain segregation
rather than ineffective integration attempts to invalidate such attempts under Brown
Loving v. Virginia (1967):
Court used 14th to invalidate bans on interracial marriage laws are not okay even if they
punish all races equally
SS invalidation of law because it is entirely based on race
McLaughlin v. Florida (1964, p. 683): Court used SS to invalidate a interracial cohabitation
statute race cannot be used in criminal statutes
Palmore v. Sidoti (1984, p. 683): Court invalidated custody award to dad after mom remarried to
a black man a court cannot decide cases based on race action doesnt pass SS (prejudice is
not a reason to remove a child from mother)
SS is used even where the application of race is symmetrical

Purpose and Effect

Yick Wo v. Hopkins (1886, p. 685): Court invalidated a SF laundry statute that was intended to
discriminate against Chinese applicants even if the law was facially neutral (there can be no racial
motive)
Motive v. Purpose
Gomillion v. Lightfoot (1960, p. 687): court invalidated gerrymandering action intended to get
rid of black vote as racially motivated
Griffin v. School Board of PE County (1964, p. 687): Court invalidated a school board action
that shut down all public schools and gave white families private school vouchers
Palmer v. Thompson (1971, p. 687): Court upheld a city action closing all integrated swimming
pools there is no affirmative duty to operate swimming pools
Griggs v. Duke Power (1971):
Burden Shifting: once shows discrimination, burden shifts to to show a neutral policy
objective, and then back to the to show that there was a better way to meet that objective
Validity Testing: if an employer creates hurdles to employment that discriminate against a
protected class those hurdles must be validated (must actually relate to employment)
Washington v. Davis (1976): Court upheld police officer test in DC even though most failures
were black apply basic EP principles: (1) test is racially neutral, (2) test is not intended to be
discriminatory, (3) test only seeks general verbal skills (use INTENT rather than IMPACT)
Arlington Heights v. Metropolitan Housing Corp. (1977, p. 692): Court upheld Washington a
disproportionate impact is not always unconstitutional
Rogers v. Lodge (1982, p. 694): Court determined that voting districts should be divided so that
minority has a chance at least one seat (racially-motivated vote dilution case)
Purposeful discrimination is unconstitutional
Decreasing voter registration is not good
Hunter v. Underwood (1985, p. 696): Court overturned AL constitutional provision blocking
votes of people with moral convictions
Racially-motivated
Discriminatory impact

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 Constitutional Law Outline
Memphis v. Greene (1981, p. 697): Court upheld street closing between black and white
neighborhoods as an inconvenience, but not a racial discrimination

Affirmative Action

In Schools
Bakke v. Regents (1978)
Court finds quota AA systems unconstitutional
Use a heightened scrutiny must use the least intrusive means to serve the ends (burden must
be tailored to government interest)
Benefits of AA denied Court says that there are other ways to develop those interests than
straight racial classification quotas
Whenever there is a facial intent to discrimination there is a violation of the 14th

Grutter and Gratz v. Bollinger (2003)

Race may be used as one of many factors to admit students (tipping point) like Harvard plan
Diversity is a compelling state interest race may be used as one factor to achieve that end

In Public Employment
Wygant v. Jackson (1986): Court requires use of SS to keep a racial quota layoff system an act
must show past discrimination to pass SS
Fullilove v. Klutznick (1980): Court used RBR to uphold minority set-aside program for public
contractors Congress doesnt have to be colorblind it can ensure minority participation in the
market
Richmond v. JA Croson Co. (1989): Court uses SS to invalidate minority set-asides, rejecting
both Wygant and Fullilove
SS should be used to smoke out discrimination and ensure that NO race is damaged
There must be (1) compelling state interest with specific aims and (2) evidence of past
discrimination in order to pass SS
Metro Broadcasting v. FCC (1990): Court used IS to uphold federal set-asides Congress
knows what is best to serve government objectives compelling interests include remedying past
discrimination and increasing diversity
Adarand v. Pena (1995): Court uses SS to invalidate a set-aside program that helped all
racially/economically disadvantaged classes all race-based claims should use SS

Gender
Craig v. Boren (1976): a man can bring a discrimination claim under EP invalidate beer law
under IS gender laws cannot be based on archaic or overbroad generalizations
Mississippi University for Women v. Hogan (1982): Court uses SS to invalidate a schools
exclusion of men because the school did not show exceedingly persuasive evidence for its
discrimination
J.E.B. v. Alabama (1994): Court used MUWs exceedingly persuasive evidence standard to
invalidate gender-motivated peremptory challenges
United States v. Virginia (VMI) (1996): court invalidated VMIs all-male policy through EP and

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 Constitutional Law Outline
Craigs IS standard Virginia made no attempt to have an equal program for women
Look to Notes, pp. 100-101 for information about Purpose and Effect, Real Differences (p. 110),
and History (p. 102)

Other Suspect Classes

Alienage
Aliens cannot vote, but do have special class status SS in 1970s, IS after
SS Era:
Graham v. Richardson (1971): states cannot deny welfare aid to aliens because they are a
discrete and insular class subject to SS
In re Griffiths (1973): aliens can practice law
Sugarman v. Dougall (1973): aliens can hold classified civil services jobs HOWEVER state
has the power to create a public community can decide who can hold public jobs
IS Era (reliance on Dougall exception):
Foley v. Connelie (1978): Court upholds Dougall exception
Ambach v. Norwick (1979): aliens who do not seek naturalization can be excluded from
teaching
Bernal v. Fainter (1984): aliens can become notaries (this is the limit to Dougall)
Is there a problem with EPC v. federalism?
Toll v. Moreno (1982): aliens are eligible for in state tuition where they reside
Hampton v. Mow Sun Wong (1976): federal government cannot ban aliens from public jobs
Use of RBR:
Mathews v. Diaz (1976): federal government can place restrictions on alien eligibility for
Medicare and can discriminate within classes of aliens

Nonmarital Children
Illegitimacy is not a suspect class Court is unpredictable, but uses heightened scrutiny through
late 1970s (mostly IS)
Levy v. Louisiana (1968): Court used EPC to invalidate law banning illegitimate kinds from
filing wrongful death suits for mother
Trimble v. Gordon (1977): illegitimate kids can inherit from father
Lalli v. Lalli (1978): Court overturned Trimble illegitimate kids cannot inherit from father
unless paternity is established during the fathers lifetime
1988: Court moves to IS
Clark v. Jeter (1988): states cannot set a statute of limitations on claims of child support for
illegitimate children

Other Classes Given the Nod

Disability Cleburne (p. 107-108)
Age Mass. Board or Retirement (p. 108)
Sexual Orientation
Romer v. Evans (1996)
Court used EPC to invalidate CO constitutional amendment banning all discriminatory aid to

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 Constitutional Law Outline
homosexuals because they are too politically powerful
Heightened scrutiny used but no tier discussion
Legislation even fails RBR you just cant take away protections that are automatically
awarded to others
Watkins v. United States Army (1988): 9th Cir. used SS to invalidate Armys sexual orientation
discrimination
Cammermeyer v. Aspin (1995): Washington District Court ordered the National Guards
reinstatement of a lesbian under RBR
Meinhold v. U.S. Dept. of Defense (1994): 9th Cir. held that statements of sexual orientation do
not equal homosexual actions
Wealth
Rodriguez: education is not a fundamental right and poverty is not a suspect class
Plyer v. Doe: you cannot charge aliens to send their kids to school (education is fundamentally
important)

Levels of Scrutiny

Rational Basis Review

Easiest standard to meet (hardest way to invalidate a law)
Only requires that the legislation have a rational basis
Deference to the legislature
Used in most economic liberty cases post-Lochner

Intermediate Scrutiny
Intermediate standard
TEST:
Discriminating measures are constitutional when they:
1. serve a important government objectives
2. are substantially related to the achievement of those objectives

Strict Scrutiny
Hardest standard to meet (easiest way to invalidate a law)
Statutes are invalid where there is unnecessary oppression
Used in privacy cases and ALL race issues
Use when there are racial issues or when the purpose of the law supports supremacy
SS used when there is:
1. discrete and insular minority under Carolone
2. a discriminatory intent
3. discriminatory impact (not always used to get to SS)
4. a suspect class under Ely:
a. a history of discrimination
b. political powerlessness
c. immutable/obvious traits

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 Constitutional Law Outline
d. question relevant to social policy
TEST:
Race-conscious measures are constitutional when they:
1. serve a compelling government interest
2. are narrowly tailored to further than interest

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