I. Judicial Review

A. Article III

1.     Federal courts may only exercise jurisdiction permitted under Article III of the Constitution

        Article III Sect 2: Federal Judicial Powers

        a) cases arising under constitution or laws of US, treaties (fed ?)

        b) ambassadors, ministers, consuls

        c) admiralty, maritime

        d) cases b/w 2 or more states

        e) cases b/w citizens of different states  

        f) cases b/w a state or its citizen and a foreign country or foreign citizen


2.     Martin v. Hunter's Lessee: SC has authority to review decisions of state courts only to extent that the decision was based on federal law. Even if federal law is involved in a case by a state court, if the state court decision is based on state law that is adequate for the decision and independent of federal law, the Supreme Court lacks power to review the case


3.     Marbury v. Madison: SC has authority and duty to declare a congressional statute unconstitutional.


4.     Sources of Judicial Power:

a.     McCulloch v. Maryland: ( state tried to tax a federal bank for operation in the state) The states have no power to burden the operation of federal laws designed to execute powers vested in the federal gov’t by the constitution.

* Necessary and Proper Clause: the ends are enumerated in the constitution and the means necessary to achieve those ends must be permitted,

- allows for a federal bank as a means to carry out tax and spend power.

B. Article III limits courts to adjudication of “cases and controversies” (SOP)

- Purposes of Case and Controversy :

i.         reduces friction b/w the branches produced by judicial review

ii.     ensures that constitutional issues will be resolved in context of concrete disputes rather than hypos

iii.    Constitutional decisions are rendered on those actually injured rather than those who want to impose their own public policy on gov’t


1.     no advisory opinions – judicial review cannot be exercised in the abstract.  Decision must end a real dispute between parties.  The Dept. of Justice can issue advisory opinions for the executive b/c the Dept. of Justice is part of the executive and therefore isn’t overstepping it’s bounds.


2.   Standing = status of being qualified to assert legal rights in ct b/c plaintiff has a sufficient stake in the controversy

        a. Allen v. Wright: Parents of black students sue IRS for giving tax exemption to racist private schools.

        Rule: Standing requires a P to allege a personal injury, fairly traceable to D's unlawful conduct, and likely to be redressed by the requested relief.


        b. Elements of Standing: (Art III now requires)

i.  injury in fact= an invasion of legally protected interest which is concrete, particularized, actual, or imminent

                                Requires P’s Injury to

                                1) arguably be w/in zone of interests protected by statutory or

                                constitutional provision at issue

        2) be particular, not shared by all or almost all citizens ( not too generalized)

ii. caused by the action complained of ( action of D must be but for cause)

            - injury suffered must be fairly traceable to challenged action of D and                not result of independent 3rd party not before the court

        iii. that is redressble by the court


c. Nexus Requirement (Lujan): P must Show:

                        1) allegedly unlawful conduct has caused his or her injury in fact

                        2) injury is likely to be redressed by favorable decision

        - nexus requirement not imposed outside of taxpayer context


d. Policies/Functions of Standing:

i.                     Ensure courts will decide cases that are concrete rather than abstract or hypothetical

ii.                    Promote judicial restraint by limiting occasions for judicial intervention into the political process

iii.                  Ensure that decisions will be made for those directly affected rather than bystanders with ideological interests

iv.                  Important because of SOP system, ct can’t hear cases simply b/c they want to, require a concrete stake thus giving the exec and leg breathing room


e. Lujan v. Defenders of Wildlife: Congressional statutes cannot confer standing to P’s who suffered no actual injury in fact.

        -In suits against the government the concrete injury requirement must remain

        ***Congress cannot interfere with constitutional standing requirements.


f.         Standing for 3rd Parties Rights: Sierra Club v. Morton: a P must have personally suffered an injury to have standing, and may not base his claim on injuries to third parties


g.       Association has standing on behalf of its members if:

                                                1) members would have standing on their own

                                                2) interest organization is trying to protect is germane to assoc                                 purpose

                                                3) neither the claim nor the relief requires member participation


       3. Jurisdiction of SC

a.     Routes to the SC are appeal and certiorari.  Appellate (mandatory) jx was abandoned in 1988. Cert jx is discretionary, often exercised to resolve conflicts among courts

b.     Ct lacks jx to hear appeals from cases decided on adequate and independent state grounds


C. Political Question ( SOP Problems)

1.     Area where legislature that does not have law in place, judicial branch would be creating policy and overstepping into legislative power (separation of powers)  (Marbury v. Madison)

        -3 Possible categories Brennan refers to as political question areas:(topics reviewed in previous political question cases)

a.     foreign relations

b.     duration of hostilities

        c.    validity of enactments


2.        Baker v. Carr:  Constitutionality of legislative apportionment schemes is not a political question. 

                        Re-apportionment issues present justiciable questions – (Baker v. Carr)


        6 Factors to Determine a Political Question

        1. Constitutionally assigned duty or power to a branch of govt*

                Ex: Impeachment assigned to legislature so not justiciable

        2. No judicial discoverable and manageable standards for resolving the issue

                                3. If  ct must decide policy Q better left to leg. or executive

4. Ct can’t undertake resolution w/o expressing lack of respect to other branches of govt

5. Unusual need for adherence to a political decision already made

6.  The potential embarrassment of various pronouncements on a single issue from different branches

***You only need one to make it a political question; not a checklist.


3.        Seeking protection of a political right does not mean it is a political question

4.        Davis v. Bandemer: Claims of unconstitutional gerrymandering are justiciable b/c there was a judicially discernable and manageable standard by which cases could be decided

5.        Nixon v. US: Fed judge was challenging impeachment trial.

Rule: The adequacy of the performance of a duty committed to another branch of govt, such as senate’s duty to try all impeachments, is a non-justiciable political question.



II. Federalism


EXAM TIPS for SOP –   see if executive order is “making of law”, could be violation

-          make sure law is “presented” to Pres. or Cong. violation

-          Pres. committal of troops for repel of sudden attack (does not have power to declare war – 60 day limit)

-          Appointment or firing of federal official (approval by congress) Congress can only remove by impeachment

A.      Distribution of National Powers

- Power of National Government- Federal government only has the powers enumerated in the Constitution expressly or impliedly

- McCulloch v. Maryland shows the supremacy of the federal government and the constitutional justifications for federalism.  


a.     Separation of Powers- constitutional effort to allocate different sorts of power among the 3 government entities that are constituted in different ways (protects people’s interests)

        -Federalist papers no.47: Madison thinks constitution makes 3 branches not separate enough

b.     Checks and Balances- focuses on constitutional effort to ensure that the system will be able to guard against a usurpation of authority by any one branch          

        -Federalist Papers No. 48: Each branch must have some power to set restraints on other 2 branches.

c.     Purpose of SOP and C&B is 1) division of labor among branches and 2) prevention of tyranny


1.        Executive Powers – (Article II)

a)     Execution of Laws- faithfully executed

b)    Commander-In-Chief- directs and leads armed forces but can’t declare war

c)     Treaty and Foreign Affairs- (treaties w/ 2/3 for senate approval)

d)    Appointment of federal officers- cabinet members, federal judges, and ambassadors

e)     Pardons- only for federal offenses

f)     Veto- President may veto any law passed by both houses but may be overridden with a 2-3 majority of the house (no line-item veto)


2.        Legislative- (Art I)

g)    Interstate Commerce

h)    Taxing and Spending

i)      DC- regulate Washington, DC

j)      Federal Property- power to regulate and dispose of fed prop

k)     War and Defense-can declare war and establish and fund armed forces

l)      Enforcement of Civil War amendments


3.        Judicial ( Art III)-fed judiciary may decide “cases and controversies” that fall w/in judicial power


4.         Separation Of Powers Problems

a.     Youngstown Sheet and Tube v. Sawyer (Steel Seizure Case): During Korean War, Truman issued an executive order directing his Sec. Of Commerce to seize mills and operate them under federal direction. 

        -Seizure struck down b/c unconstitutional exercise of the            lawmaking authority reserved to Congress.

                RULE: President must merely carry out laws, not make them.

                                -Presidential powers must come from either constitution or                                                                             congress

                Presidential Actions Fall w/in 3 categories:

- Pres action has maximum force and authority when he acts pursuant to                 an expressed or implied authority by congress

- When Congress is silent (absent of either congressional grant or denial               of authority), constitution grants president certain powers to act         independently or concurrently w congress= “twilight zone” –   invites    pres action

- Pres power lowest when he acts contrary to the will of congress,            expressed or implied  (pres constitutional power less congress        constitutional power)


b.     Dames and Moore v. Regan (Sec. Of Treasury): Pres ordered dismissal of pending litigation against Iran in US courts and forced claims to go to arbitration pursuant to an exec. agreement.

RULE: An executive agreement has the same force and effect as a treaty and can alter the rights of US citizens.

-Pres has power where such settlement or suspension is necessary and incident to the resolution of a major foreign policy dispute and congress has acquiesced in that type of presidential action, the action will be deemed w/in pres’s constitutional authority

-Majority uses 3 categories of pres action mentioned in Youngstown concurrence.


5.  Domestic Affairs

a.        US v. Nixon:  Nixon refused to turn over tape recordings and documents which were subpoenaed in the course of the Watergate investigation.

RULE: Where the claim of privilege is general, and not related to a particular need to protect military, diplomatic, or sensitive national security secrets, the pres has a qualified privilege.

- Apply Balance Test:  need for candor v. countervailing public policy

- Constitution does not create presidential immunity from judicial process.


b.     INS v. Chadha: Legislation authorizing congress to act alone is unconstitutional as a violation of a separation of powers, if exercise of legislative power is involved and it does not fall within one of the exceptions stated in the constitution. The bill must be presented to the president for signature or veto and there must be bicameral approval.

        RULE: Legislation allowing for a one house legislative veto is           unconstitutional.

                - Legislative Function alters rights, duties, and legal status

- Legislation requires both 1) bicameral approval 2) presidential assent


c.     Bowsher v. Synar: (Congress delegated comptroller in charge of disbursement of funds) Congress may not reserve to itself the power to remove executive officers. It is a violation of SOP for executive functions to be performed by one over whom Congress has power of removal, since the person really is an agent of congress.

- Congress could control execution of its enactment of legislation indirectly by passing new legislation.

- Removal by congress is constitutional only if by impeachment.

RULE: Congress cannot vest executive function into a legislative officer.


d.     Morrison v. Olson:  Legislation authorizing the Atty. Gen. to request appointment of independent counsel did not violate SOP b/c congress may limit the Pres’s right to appoint lower level officials despite the Constitution’s Appointment Cl (Art II Sec 2).

RULE:  President has power to appoint top or principal level officers, congress has power to appoint inferior officers.

-To determine PRINCIPAL V. INFERIOR, turns on how much independence the officer will possess, how far reaching, his duties are, and latitude of discretion the officer possesses.


6.  Foreign Affairs

a.              US v. Curtiss- Wright Corp.:  It is not an unconstitutional delegation of congress’s lawmaking power to give pres the authority to prohibit the sale of arms to a foreign nation engaged in conflict.

RULE:  Congress may delegate to the pres a broader array of lawmaking powers when foreign affairs are involved.

- In foreign affairs pres must have some freedom of discretion and freedom from statutory restriction to properly maintain FA.

- During war it is the President, not Congress, who has a better opportunity, as the one who speaks and listens as the representative of the nation, of knowing the conditions that prevail in foreign nations.

- The President is the sole organ of the federal government in the field of international relations, and therefore, we must not condemn the legislation at issue before us by imposing a general rule, that effect of which would conclude that an unlawful delegation of legislative power to the President occurred.

- The government’s powers concerning foreign affairs are not limited to the grants of power enumerated in the Constitution


7. War Powers

a.             Resolution-

                                                Important Info:

- In 1974, Congress enacted the war powers resolution which limited the President’s authority as commander in chief, required the President to consult with and report to Congress concerning military actions, and allowed Congress to terminate military actions within a certain time.

- Some argue that it is an unconstitutional infringement of the powers of the President, especially with his ability to repel sudden attack.

- Does not affect short term military action of 60 days or less.

- Constitution gives pres limitless power as Commander-in Chief and War Powers Resolution cannot take away anything given by constitution.

B. Supremacy Clause

1.     Article IV provides that federal statutory and constitutional law is supreme and binds the states, regardless of anything to the contrary in a state’s common, statutory, or constitutional law.

2.     Preemption – federal statutory law displaces state statutory or constitutional law whenever Congress so intends.  Congress may expressly state its intention to displace state law, or such intention may be inferred from the federal legislation.  That intention is inferred when there is an actual conflict between federal and state law, or when the nature and extent of the federal law implies congressional intent to occupy the field exclusively.

C. “Necessary and Proper” Clause

1.     Article I, Sec. 8 – gives Congress the power to use all necessary and proper means to execute the powers of the federal government.  Courts defer to Congress’s judgment of the necessity and propriety of the means it selects.  So long as the means employed by Congress are rationally related to an enumerated power of the federal government the courts will not invalidate the legislation as unnecessary or improper

a.     this clause is not a separate and independent source of authority for congressional action.  It serves only to permit Congress to use any rational means to implement some other authorized power.

b.     incorporation of the Bank of the United States was deemed necessary and proper to the fiscal operations of the federal government (McCulloch v. Maryland)

III. Legislative Powers

A. Power to Regulate Commerce

1.     Article I, Sec. 8 – gives Congress the power to regulate interstate, foreign, and Indian commerce


2.     Commerce Clause Functions: 1) Source of congressional authority and 2) it acts implicitly as a limit on the state legislative power.

        a.     Gibbons v. Ogden: Commerce power is plenary ( like all others vested by constitution) and may be exercised to its utmost extent w/ no limitations other than those prescribed in the constitution.

- States can’t regulate interstate commerce.

- The federal govt has power to regulate all of the external concerns of the nation and those internal concerns of the states generally.

        Commerce: is more than just buying and selling of goods, includes navigation and any other form of commercial intercourse among states

        Among: states internal concerns that affect other states falls w/in definition of "among several states"


3.     Judicial test for the Scope of the Commerce Power

a.     Congress must determine factually that the activity regulated is actually in commerce or substantially affects commerce

1)     In commerce – if the activity is an “instrumentality” or channel of commerce, or if it involves the interstate movement of any article that is the subject of market exchange

2)     Substantially affect – Congress must make factual finding of substantial affect.  If it regulates purely intrastate and noncommercial activities, the courts will not defer to Congressional findings but will review the issue independently

i.      Wickard v. Filburn: (farmer grows wheat) An activity that is local , but has a substantial influence on interstate commerce by reason of its aggregation with similar or other local activities throughout the nation, may be regulated pursuant to the commerce cl.


b.     Rational judgment – rational basis to believe the activity is in commerce or substantially affects commerce


c.     Reasonable means – means must be reasonably related to its regulatory objective


History of Judicial Approaches to CC


4.     Direct Effects Test: Manufacturing is not considered commerce (United States v. E.C. Knight Co.)

a.     production of an article intended for export to another state or country is not commerce.

b.     even though it may ultimately affect commerce, suppression of monopoly is a police power.


5.     Realistic Approach: Congress may regulate instrumentalities of intra-state commerce (RR rates) if their use bears a close and substantial relation to interstate commerce. [Rate-setting as commerce] (Houston, East & West Texas Railway v. US)

a.     Congress has power to protect interstate commerce from impediments of local control

b.     Disparity in rates depending on origin and destination in and out of state was substantial enough of an effect on interstate commerce to warrant regulation


            6.   Commerce Clause as Police Power

a.     Champion v. Ames: Statute regulating morals was upheld.

RULE: Congress may prohibit the interstate transportation of any things or commodities that are ordinary subjects of traffic (lottery tix) and have a recognized value in $$$.

7.     New Deal Commerce Clause

        a.     “Indirect Affect”: Once a good in interstate commerce is disposed of in the state of final destination, it is no longer in interstate commerce and thus no longer subject to the federal commerce power. (A.L.A. Schechter Poultry Corp. v. US)

-Schecter’s wage policies may affect interstate to lower prices, but the effect was too indirect.


8.     Liberal Approach to CC

        a.     NLRB v. Jones & Laughlin Steel Co.: (Steel co refused to follow order to cease-anti-union efforts) Congress’s power to protect interstate commerce is not limited to transactions that are an essential part of the flow of interstate commerce. May also encompass purely intrastate activities that burden, obstruct, or have a substantial effect on interstate commerce.

        b.     US v. Darby: Court held that if in the judgment of Congress a local activity substantially affects interstate commerce it is not for the judiciary to question this considered judgment.

        - motive is irrelevant


9.     Limit on Congressional Commerce Power

a.     Areas for regulation

1)     regulate the use of channels of interstate commerce

2)     regulate the instrumentalities of interstate commerce, as well as persons or things in interstate commerce

3)     regulate activities that have a substantial relation to interstate commerce (substantially affect)


b.     Modern Cases:

        i.              US v. Lopez: (Guns in school) RULE: Under the commerce clause, congress may legislate only those activities that implicate: the channels, instrumentalities, or activities w/ substantial effect on interstate commerce.

        - Commercial activity(economic) vs. noncommercial activity (non-economic): if econ: was there a substantial effect? In non: was there a bigger econ effect?

        ii.             Commerce Clause regulation of intrastate activity is permitted only if that activity is economic in nature (US v. Morrison)


B. Treaty and War Powers

1.     2/3 Senate approval of Presidential treaties to make supreme law of the land under supremacy clause.


2.     10th Amendment is not a limit on treaty power

a.     pursuant to treaty congress can legislate on matters over which it would otherwise not have the power

b.     power to make treaties is express power; if the treaty is valid, the statute is equally so, being necessary and proper (Missouri v. Holland)


3.   War Power: congress has power to declare war and make laws necessary to carry out that power

C. Taxation

1.     Article I, Sec. 8 – power “to lay and collect taxes, duties, imposts and excises, to pay debts and provide for the common welfare of the US


2.     If Congress has the power to regulate the activity taxed, the tax is valid even though enacted for regulatory purposes.


3.     If Congress does not have the power to regulate the activity, the validity of the tax depends on its validity as a revenue-raising measure.

D. Spending

1.   GENERAL WELFARE power of Article I, sec. 8 is connected with the taxing and spending power.  This clause can only be invoked when there is an expenditure of money appropriated by Congress


2.     Spending must be for a national concern; however, great deference is given to the determinations made by Congress in providing for the “common benefit”


3.     Local v. General Welfare (US v. Butler)

a.     RULE: Spending power may not be used to purchase compliance in an area that congress is powerless to command.

b.     Congress can’t claim that local conditions create national concern.

4.     Inducement of States (Steward Machine Co. v. Davis)

a.     RULE: Congress may use the Spending Power to persuade states to enact legislation in the area of general social welfare without violating constitutional provisions.

b.     Refer to SD v. Dole below for 4 factors for what is w/in Spending Power (III E)


5.     Spending for the General Welfare – Congressional determination of general welfare and deference by the courts to Congressional findings

E. Limit on Powers (Implied)

1.     State immunity from federal regulation

a.     10th Amendment – powers not delegated to the federal government, nor prohibited to the states, are reserved for the states


b.     Valid regulation of states (Garcia v. San Antonio Metropolitan Transit Authority)


1)     Congress can enforce minimum wage and overtime requirements against local government’s mass transit authority

        Rule:  If Congress is regulating something against private entities and the state is participating in the same activity fed. govt may regulate the state


2)     Test for immunity from federal regulation under Commerce Clause

i)      federal statute must regulate the states as states(not indiv. citizens)

ii)     statute must address matters that are undisputable attributes of state sovereignty

iii)    state’s compliance with the federal regulation must directly impair its ability to structure integral operations in areas of traditional governmental functions

iv)   relation of state and federal interests must not be such that the nature of the federal interest justifies state submission


2.     Limit on Congressional Regulatory Authority (New York v. US)

a.     Congress may not force state governments to regulate according to federal standards

Policy     – shifts the burden of accountability to the wrong group (political            accountability)

                - 2 unconstitutional alternative choices created coercion


b.     To require state government to take title to radioactive waste would be to commandeer state governments into serving federal regulatory purposes which is not constitutional (violates 10th Amendment)

c.     Congress cannot enact legislation strictly for the benefit and welfare of the general public, must be a spending issue for the general welfare of the public.


d.     South Dakota v. Dole – how could Congress get around commandeering factor:

1.     withhold funds in order to provide incentive to states to comply

2.     provide funds

3.     tax credits for states complying with the regulation

4.     prohibit interstate transportation of hazardous materials


3.     Limit on Congressional Power to Use State Officers Directly (Printz v. US)

a.     Congress can not compel state officers directly to enforce a federal regulatory program

1.     requiring local Chief Legal Officer to perform background checks under Brady Act is unconstitutional use of a state officer

b.     Control of state officers would affect the balance of powers.  The President is responsible for executing the laws, but the Brady Act places this power in a local officer and out of Presidential control

IV. State Power to Regulate Commerce

A. Constitutional Limits

Policy for limiting state regulation of interstate commerce:

-          Lack of accountability - out of state citizens are unable to vote for the state government enacting the laws affecting the flow of commerce to and from their state

                EXAM TIP (look for:)              – conflicts between the laws of 2 or more states

                                                                    - restrictions on imports or exports

                                                                    - where state is operating as a market participant (running                                      a factory) it does not violate dormant commerce clause

                                                                    - congressional pre-emption – fed. action in area restricts                                                       state action (stricter state reg under fed. reg will not                                          violate if both can be met)

Modern Approach to Dormant Commerce Clause Review

1.     the regulation must pursue a legitimate state end;

a.     health, safety, and welfare – likely to be held as legitimate

b.     economic advantage – court more skeptical

2.     the regulation must be rationally related to that legitimate end; and

a.     deference to legislative fact finding

b.     similar to review of Congress’ actions

3.     the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing its regulation.

a.     less restrictive alternatives – if the end can be achieved through less burdensome means, court will likely find national interest in free commerce outweighs the state’s interest

b.     matter is overwhelmingly of local concern, likely court will find state’s regulation of its own affairs will outweigh national interest


1.     Traditional State Regulation of Transportation (Instrumentalities)

a.     Absence of discriminating factor – burdens are both on inter/intra state activities (presence of discrimination is invalid per se)

1.     usually regulating for public safety; existence of legitimate objective is generally not in doubt

2.     court will focus on 2nd and 3rd test


b.     balancing test – burden outweighed by state interest

1.     slight safety benefit will be outweighed by burden on commerce


c.     Discrimination over balance – easier to invalidate through showing of discrimination to out-of staters than to show burden outweighs benefits


d.     cumulative effect of numerous state’s regulations – individually one state’s reg. may not appear discriminatory but multiple states regs in conflict would cause burden (Bibb v. Navajo)

- Illinois regulation for curved/molded mud guards


2.     State barriers to

a.     regulation of trade

1.     protection of economy – purpose is to strengthen local economy court will generally strike down the regulation

-       even if discrimination is small court will strike (fact of discr. Not magnitude is deciding factor)

2.     health and safety regulations – balance of benefit v. burden (less burdensome/less discriminatory alternatives will be taken into acct.)


b.     Environmental Protection and Conservation 

1.     Importation of Wastes (City of Philadelphia v. New Jersey)

a)     State cannot prohibit importation of environmentally destructive substances solely because of their source of origin

b)    Distinguished from quarantine laws (diseased cows posed health issue immediately) because a health or safety issue is not evident until a build up of trash occurs and then there is no distinction between in and out-of-state trash

b)    Undue burden on out of state commercial interests for conserving state’s remaining landfill space

c)     TEST for burden on interstate commerce

i)      Does the regulation patently exclude (no entry, tax on out-of-state, facial distinctions)

-       a presumption is invalid, must show legitimate reason for distinguishing between out-of-state goods

ii)     evenhanded regulations (no transportation of radioactive waste)

-       balancing test between the burden and local interest (inherent question – is there a less burdensome way of achieving same result)


2.     Limits on local government control (C&A Carbon v. Clarkstown)

a)     local government may not require all of its solid waste within its borders to be processed by a specific local processor

b)    eliminates out of state or in state competition by naming only one processor

c)     patent discrimination against competition is per se invalid, except when state can show there is no other method to advance the public interest

d)    Patent/evenhanded regulation – argue law affects everyone equally, however court held: a prohibition or imposition on out-of-state interests is all that is needed

e)     Facially discriminatory because it prohibits 100% of out-of-state commerce


3.     subsidies instead of regulation

a)     state may not impose a tax on all sales of a particular product in order to subsidize in-state producers of that product

b)    makes milk from other state more expensive and creates a protective tariff for local producers


c.     Privileges and immunities

1.     justification of exception –

a)     nonresidents are a peculiar source of the evil sought to be avoided

b)    discrimination bears substantial relation to the problem

2.     protection of basic activities – protects essential activities as pursuit of livelihood, the transfer of property, access to the state’s courts

3.     ordinance is not immune from attack because it discriminates against some in-state residents and all out of state citizens


3.     Facially neutral statutes

a.     permissible state barriers to incoming trade (Exxon Corp. v. Governor of Maryland)

1.     state can discriminate against a certain type of out of state business if there are no corresponding intrastate businesses

2.     interstate retailers that were not also producers or refiners remain unaffected by the statute, not all out-of-state entities are burdened




b.     precision (Hunt v. Washington State Apple Advertising Commission)

1.     local statute with valid, good-faith purpose must achieve its stated purpose to be upheld

2.     when burden on interstate commerce is shown the burden is on the state to justify its regulation

a)     local benefits sought

b)    non-discriminatory alternatives are unavailable

3.     purpose is to prevent fraud; however excludes Plaintiff’s apples graded with equal or superior grading system


c.     modern approach to transportation regulation (Kassel v. Consolidated Freightways)

1.     balancing test between states safety interest v. interest in free commerce

2.     plaintiff failed to show safety issue valid to outweigh commerce interest

a)     state failed to show difference in safety between the allowed and prohibited length trucks

b)    safety measure must be “rationally related” to a justified local interest


4.     Federal preemption

a.     express preemption – statute clearly provides that it preempts state law

b.     conflict preemption – federal preempts state in conflict

c.     field preemption – federal regulation so pervasive leaves no room for state to supplement

V. State Action

A.    Civil Rights Cases

1.     To assert a right protected by 1st-8th Amend or 14th Amend must show state action. (1-8 originally governed conduct of fed. government, 14 governed conduct of the state government)

2.     Civil Rights Act 1875 – unconstitutional because it authorized the federal gov’t to regulate conduct of private parties

3.     Congress does not have power to regulate over individuals discriminatory behavior.


B.    Enforcement of private contracts - Equal Protection Clause prohibits courts from enforcing contractual covenant based on race. (Shelley v. Kraemer)

1.     discrimination is private and not in violation of equal protection but state enforcement of contractual agreement would constitute state action in discrimination

2.     private acts become illegal state action when state or its officers are involved in carrying out the private action

3.     14th Amend. – protects an individual’s right to acquire, enjoy, own and dispose of property against discriminatory behavior…does not encompass conduct of private individuals


C.    Symbiosis Test - Private use of government property (Burton v. Wilmington Parking Authority)

Mutual Benefit Test – entangled=symbiosis

Rule:      When state is so entangled in a private party’s actions as to be regarded as a joint participant in private racially discriminatory action, the private action becomes a violation of the 14th Amendment

2.     private lessee of state property is required to comply with 14th Amendment if the lease furthers state interests and forms an integral part of state operation

3.     “symbiotic” relationship that state profits from and invidious discrimination create unconstitutional under 14th

4.     one party benefit from the other (benefits mutually conferred)


D.    Close Nexus Test (Brentwood Academy v. Tennessee Secondary Athletic Association)

1.     inseparable actions between state and private

2.     members on discriminating school board are state officials

3.     exception is when there is a countervailing reason to find otherwise (public defender is paid through public funds but not considered state action)

4.     Entwinement- state being so intermingled with private actor in the administration or the membership of a private organization being made up of mostly state actors.  However, if there is a countervailing reason to find otherwise, such as a public defender (opposing the state actor), state action will not be found

VI. Equal Protection

EXAM TIPS          - statute discriminatory on its face or “as applied” (as it is carried out)

                                        - federal regulation 5th (no EPC - inferred); state/local regulation 14th


A. Strict ScrutinySubstantially related to compelling governmental interest

1. Suspect Classifications       – “discrete and insular” class

                                                                                            – “immutable” characteristic

a. Status of slaves and former slaves under US Constitution (Dred Scott v. Sandford)

Rule:  Congress has no authority to prohibit slavery

1)     because slave is considered a citizen in a non-slave state under its laws, does not create federal citizenship because the federal government has exclusive power to naturalize aliens

2)     law prohibiting ownership of slaves in the Louisiana Territory is unconstitutional

b. Reconstruction

1)     13th Amendment – prohibited slavery throughout US

2)     14th Amendment – made slaves citizens

3)     15th Amendment – right to vote to all persons

4)     “Separate But Equal Doctrine” (Plessy v. Ferguson)

Rule: 14th amendment was enacted to enforce the absolute equality of the races, it was not intended to abolish distinctions based on clors, or to enforce social equality or commingling of the races.

a)     state legislature’s purpose was to preserve  public peace and good order

b)    deference provided by the court to legislatures conclusions


c.  Desegregation

1)     application to secondary and primary schools

a)     children may not be segregated in essentially “equal” public schools solely on the basis of race; violates the equal protection clause (Brown v. Board of Education) (Brown 1). Struck down PLESSY.

b)    inherently unequal facilities and therefore a denial of equal protection of the law


2)     implementation of desegregation (Brown 2)

a)     local school authorities will determine solutions to integration problems and the determinations will be reviewed by local courts (b/c of their proximity and familiarity w/ the schools’ particular situations) for good-faith compliance.

b)    systematic removal of any obstacles to full integration


3)     Plaintiff must show intentional acts to support discrimination; the school district involved assumes the burden of proving that it operated w/o “segregative intent” on a system-wide basis (Keyes v. School District No. 1)

a)     This case significant b/c it represent one of the first instances where Brown v. Board was applied to northern states

b)    plaintiff must show intentional segregation over substantial portion of school district

c)     evidence of intent raises inference of discrimination in entire structure


d.  Classifications based on Race and Ethnicity

1)     Discrimination against racial and ethnic minorities

a)   State can provide legislative limits on availability for jury service, but CANNOT use race as a basis; the 14th amendment says that law in all states shall be same for every race (Strauder v. West Virginia).

Rule: 14th gives all persons the right to protection from unfriendly race based legislation.

1)     law must be same for blacks and whites

2)     no right to have your peers serve on the jury

-14th provides all races rights that whites have enjoyed and provide non-whites EP under law.


b)    Race classification in time of threats to nat'l security.

        Rule: All legal restrictions that curtail civil rights of a single race are immediately suspect and must b subject to a high level of scrutiny. (Korematsu v. US)

a)     beginning of strict scrutiny (more lenient because military order)

- necessary means to pressing political objective

b)    basis of interest was public necessity; “means prong” vs. “objective prong”: trying to achieve a pressing public necessity (avert espionage) is an objective.

c)     4 Factors Courts Consider for Heightened Scrutiny: 

1)     immutable characteristics

2)     inferiority of race

3)     a group affiliation

4)     insularity – group not effectively represented


2)     Classifications that disadvantage racial minorities

a)     violation of equal protection requires that the government action have a discriminatory purpose (intentional or deliberate purpose)


b)    Disproportionate impact on different races resulting from a general qualification test does not, by itself and independent of any discriminatory purpose, show discrimination (Washington v. Davis : rat'l basis applied b/c race neutral classification)

1)     Totality of the Circumstances Test :

        -Neutral on its face can be found to have  invidious discrimination purpose from totality of relevant facts including fact that law bears more heavily on one race than another.

2)     neutral on the face and evidence of affirmative efforts to recruit black officers


c)     de jure and de facto discrimination–

1)     De Jure” – explicit discrimination or discriminatory application

a)     facially neutral statute was applied discriminatorily and found in violation of equal protection (Yick Wo v. Hopkins)          

b)    discriminatory motive for enacting law

2)     de facto – neutral law results in discrimination


d)    Disparate Impact on Race

        Rule (Arlington Heights): Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into circumstantial and direct evidence of intent as may be available.

        3 Sources of Intent

        -Impact of Action (Effects)

        -Historical Background

        -Normal Procedure Departures

        -Legislative History

1)     Zoning restriction on low income housing impacts minority races unequally but is inadequate to invalidate; Ps must prove that discriminatory purpose was a motivating factor in the Ds decision (Village of Arlington Heights v. Metropolitan Housing Development Corp.)

a)     Enough to show discriminatory purpose was a motivating factor

b)    Must have proof of improper intent

c)       Impact was explained for reasons other than race

d)       The court will look at direct and circumstantial evidence, and the P has the burden to show purposeful discrimination.


2)     Capital cases require evaluation of the individual jurors’ motivations in sentencing. So, raw, abstract statistical evidence isn’t dispositive of a lack of equal protection (McClesky v. Kemp)

Rule: When there is no discriminatory purpose behind the law, the fact that one race is subjected to punishment more than another is not enough to strike the law down as unconst.

a)     court cannot rely strictly on statistics to prove discrimination in criminal sentencing

b)    plaintiff failed to show racial bias on the part of jury or prosecutor


3)     Facially neutral, race-based classifications

a)       equal application to the races is not enough under equal protection when arbitrary and invidious discrimination occurs; a state law restricting the freedom to marry solely b/c of racial classification violates the equal protection clause (Loving v. Virginia).

Rule: Racial classifications are subject to the most rigid scrutiny and must be essential to the accomplishment of some permissible state objective to be permitted.


b)    restructuring the political process to eliminate busing (Washington v. Seattle School District)

Rule: Laws that make it more difficult for certain racial and religious minorities to achieve legislation that is in their interest, are uncon.

a)     state may not redefine its governmental decision-making structure for racial purposes

b)       cannot place higher hurdle on segregation busing than other reasons for busing


4)     Affirmative Action

a)     set-aside programs

1)     the 14th amendment requires that any race-based classification must be able to withstand strict scrutiny: the classification must (1) serve a compelling interest that is (2) narrowly tailored to serve (3) a compelling governmental interest (City of Richmond v. J.A. Croson Co.)

a)     no evidence of past discrimination in construction contracts on the part of the city against named minorities in city statute

b)    no indication of race-neutral means considered

c)       cannot be determined narrowly tailored because it is not linked to identified discrimination

d)       NOTE: Strict scrutiny is the most rigid form of heightened scrutiny.


b)    federal government’s use of race-based classifications are subject to strict scrutiny in affirmative action; they must be narrowly tailored to remedy demonstrable past discrimination (Adarand Constructors v. Pena)

1)     race based action necessary to further compelling interest, it is permitted as long as “narrowly tailored”

2)     all racial classifications are subject to strict scrutiny

3)     government rebate money would allow them to under bid other contractors


Three Propositions for SS

1) Skepticism: any preference based on racial or ethnic criteria must necessarily receive a most searching exam

2) Consistency: Standard of review under EPC is not dependent on who is benefited or burdened by classification

3) Congruence: EP analysis is same in 5th and 14th


c)     Academic Settings

1)     Rule: the equal protection clause didn’t prohibit the narrowly tailored use of race in admissions decisions to further the school’s compelling interest in obtaining the educational benefits that flow from diversity (Grutter v. Bollinger)

        -“Critical Mass” of cultural and societal views to promote educational diversity (compelling interest)


a)     Deference given to school to promote their judgment that a diverse class is beneficial

b)    NT= flexible enough to consider all pertinent elements of diversity in light of qualifications of each applicant

c)     Court accepts good-faith effort for non-race based alternatives (must explore race neutral alt not exhaust)

d)    Involved sunset provision of 25 years ( time limit)


                                                Affirmative Action Summary:

1.         2 GOALS:

(1)   Remedial (societal discrimination, identity discrimination),

(2)   Diversity.

2.         Within diversity, some goals are permissible and some aren’t.

a.     BAKKE gave us examples of non-permissible diversity goals.

-Reducing historic deficit and traditionally disfavored minorities

-Remedying past discrimination

-Increase number of professionals in the ghetto

b.     GRUTTER gave us examples of permissible diversity goals.

-Diversity in student body

3.     Point-based admission process held unconstitutional (whites had to achieve 20 pts. from multiple areas to equate to minority) (Gratz v. Bollinger)

a)     Lack of individualized review for significance of racial background violates narrowly tailored prong of strict scrutiny

b)    Point system violate narrow tailoring

B. Intermediate ScrutinySubstantially related to important governmental interest (exceedingly persuasive justification)

1. Sex

a.     Early cases treated sex-based classifications under the traditional Equal Protection tests. The early cases were decided against the backdrop of The Slaughter-House Cases (these cases deal with “Implied Fundamental Rights: The Privileges & Immunities Clause”), which had given an extremely narrow reading to the 14th amendment’s due process and equal protection clauses. They therefore paid little attention to claims that gender discrimination violated these provisions.

1.     sex not suspect classification

2.     rational basis test (must have a legitimate goal) applied; a statute couldn’t give mandatory preference to members of one sex over the other merely to eliminate the need for hearings on the merits

Rule: Arbitrary legislative choice forbidden by the equal protection clause (Reed v. Reed) [Rat’l Basis Applied]

a)     state preference of male over female in determining who will administer an estate violates Equal Protection

b)    “as applied” challenge (show exceptional circumstance)


b.     Intermediate Standard (sex-based classification is inherently suspect)

1.     military requirement that women show dependence of spouse without requiring men to do the same is unconstitutional b/c the distinction was solely for the purpose of achieving administrative convenience, which was not a significant governmental interest (Frontiero v. Richardson).

a.     arbitrary discrimination

2.        classification favoring women; intermediate scrutiny test applied: (Craig v. Boren)

Rule: Sex based classification gets Intermediate Scrutiny:

-       Invalided state law allowing 18 yr. old women to purchase alcohol and men had to be 21; justification was based upon traffic safety records.

a.     important governmental interest

b.     substantially related to achievement of objectives


c.     Real differences v. Generalizations (Stereo Types)

1.     Two-Prong TEST for Sex Classifications: (1) states must show that a sex-based government action serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives (intermediate scrutiny), (2) there must be an exceedingly persuasive justification for this action [this prong was added to the CRAIG rule] (United States v. Virginia). *stricter test NOT strict scrutiny

a.     educational diversity with male education; no corresponding plan for females violates equal protection

b.     only modification required to include women would be housing

c.     separate program hypothesized for women does not include the rigorous military training and is therefore not equal

**Govt objective must be one that actually motivated legislature as opposed to one that is articulated after gender based scheme is articulated**

2.     requirement of proof of paternity and not maternity for citizenship of child born out of the US is constitutional (Nguyen v. INS)

a.     The Governmental Objectives: substantial relation to biological relationship and ties to the US

b.     mothers proof of maternity is evident at birth, father is not necessarily even present

c.     neutral requirements would be hollow because mother is still proving maternity at birth



d.     “Benign” Gender-Classification and Discrimination Against Men

1.     Laws that discriminate in favor of a certain class b/c of gender will be struck down if they do not reasonably compensate the favored group for past discrimination. (Califano v. Goldfarb)

        -state disadvantages women contributors to SS system as compared to similarly situated males

a.     important interest – provide dependent spouses with support after death of wage-earner

b.     substantially related – required proof by widower of dependency; only justification was stereotype of wives dependency on husbands


2.     Congress Can Provide Gender-Based Classification to Compensate Women for Adverse Past Discrimination (Califano v. Webster)

        -Rule: Statutes that operate to directly compensate women for past discrimination are constitutional even if they discriminate against men in process

a.     important interest – reduce disparity in economic condition between men and women caused by history of discrimination against women

b.     substantially related – level of benefits is directly related to the level of past earnings (past earnings for women are lower due to discrimination)

2. Illegitimate Birth

a.     See Nguyen above under 1.

C. Rational BasisRationally related to legitimate governmental interest

          Economic and Social Laws

1. Test

a.     Rational Basis for legislation was all the 5th amendment’s due process clause required (US v. Carolene Products Co.)

1.     if there are no factual findings there is a presumption of findings supporting the legislative decision

2.     great deference to legislative findings

-       If debatable but someone could conclude that congress had a rat'l basis then court leaves it alone.

b.     burden on challenger to law to prove no rational relationship (presumption of validity)


c.     An exclusionary scheme not directed at any individual or category of persons, but rather representing a policy choice made by gov’t is constitutional because it does not circumscribe a class of persons characterized by some unpopular trait or affiliation

-       employment discrimination against methadone users was rationally related to government’s interests in protecting public safety; b/c methadone users don’t have the characteristics of a suspect class, all that must be shown to validate the rule is rational basis (New York City Transit Authority v. Beazer).

-       over-inclusive statute does not make it invalid


d.     Legislation does not have to regulate entire problem, can attack one facet at a time (Railway Express Agency v. New York)

1.     regulation eliminating all but owner-advertising on delivery vehicles

2.     deference granted to city to meet rational basis test

3.     under-inclusive statute does not make it invalid


e.     Law regulating business and industrial conditions will not be struck down because it is unwise, up to legislature to balance advantages and disadvantages in decisions and not the courts.  (Williamson v. Lee Optical)

Rule: Legislative may enact one phase at a time in a field.


f.      Minnesota v. Clover Leaf Creamery:

        Rule: If it is at least debatable that there is a rational basis, defer to legislature.

        Issue is whether the legislative classification between plastic and non-plastic, non-returnable milk containers was “rationally related” to achievement of conservation. State can enact statute not discriminatory on its face but that does cause a shift in an industry from a predominant out of state location to a predominant in-state location

1.     Ban on sale of milk in plastic non-returnable, non-refillable containers but allowed sale in cardboard containers

2.     Rationally related to conservation interests

3.     Incidental burden on interstate commerce is not “clearly excessive”

4.     Deference given to state legislature and their purpose

-State does not have to convince the court of correctness of legal judgment.


g.     City of Cleburne v. Cleburne Living Center:

        Rule: Fear of a group of people is not a reasonble ground for treating them differently under the law.

        Mental retardation is NOT a quasi-suspect class, and therefore subject to rational basis test

1.     Permit requirement for mentally retarded is not rationally related to any government interest

2.     Law does not apply to nursing homes, sanitariums, or boarding houses and therefore is not related to protection of a class (retards)

3.     Issues require a variety of solutions best addressed by legislature

4.     Dissent – burden on challenger of law, deference should be given to legislature in the purpose for their enactment of the law


h.     Unpopular groups : Rational Basis with a Bite

1.     The "unrelated person" provision was irrelevant to the state purpose of the Food Stamp Act and did not operate to rationally further the prevention of fraud. The classification acted to exclude not only those who were likely to abuse the program, but also those who were in need of the aid but could not afford to alter their living arrangements so as to retain their eligibility. (US Dept. of Agriculture v. Moreno)

a.     Purpose of statute is to raise nutrition and strengthen economy

b.     Not rationally related to non-relative containing households and therefore unconstitutional under rational basis

c.     Desire to harm a unpopular political group is not a legit. gov’t interest


2.     Sexual Orientation - States cannot prohibit protection of homosexuals.  Law could not have been adopted for any other reason but to discriminate against mos.  (Romer v. Evans). Amendment 2 violated the Equal Protection clause because the classification was unrelated to any legitimate state interest.

a.     Homosexuals are not a suspect class; it classified homosexuals not to further a proper legislative end, but to make them unequal to everyone else.

b.     However statute bears no rational basis to purported reasons

c.     Makes it more difficult for one group than all others to get protection so violates EPC


3.     Social welfare (Geduldig v. Aiello)

a.     Action brought as sex-based, but statute applied to both men and non-pregnant women no longer based on sex

b.     If statute was based on ability to be pregnant then would be sex-based and under intermediate scrutiny

c.     Court reviewed social welfare under rational basis b/c applied to men and non-pregnant women.


D. Quasi-Strict ScrutinyNarrowly tailored and substantial governmental interest

1.     Applies to –

a)     lack of political power

b)    history of discrimination

c)     immutability of the basis for classification

d)    irrelevance to performance

e)     obviousness – (basis for classification acts as a badge)

2.     Alienage

a)     state laws discriminating against aliens are inherently suspect

b)    most laws discriminating against aliens are not upheld

c)     exception – situations involving state government functions (exclude aliens from police force)

d)    state cannot prohibit all aliens from all competitive state civil service positions (Sugerman v. Dougall)

1)     Narrowly Tailored and substantial government interest; Aliens have a history of being a discrete and insular minority, and therefore classifications based on alienage trigger strict scrutiny, which means the classification must advance a compelling interest and be narrowly drawn. 

2)     not all jobs require loyalty of that of a citizen (clerical workers)

e)     Illegal Aliens – see Plyler v. Doe pg. 31

f)     Federal regulation discriminating against aliens will carry greater deference because EP rights will be inferred under 5th Amend. and federal has the exclusive responsibility of supervising immigration

VIII. Due Process Clause 14th Amendment

EXAM TIPS          - taking away a group’s ability to do something

                                        - fundamental right? (right of privacy or autonomy)

                                                - marry, bear children, rear children

                                                - strict scrutiny

                                        - non fundamental – rational basis

                                        - distinguish between 5th Am. - Due Proc (federal) and 14th Am. (state)

                                        - involves ability to have sex (married – fund., non-married-non-fund.)            

A. Overview

1.     prevents deprivation of right of any person to life, liberty, or property without “due process” of law

2.        protection of individual rights

3.        one major function of 14th Due Process Clause is to make the Bill of Rights applicable to the states, because as originally drafted the BOR limited only the federal gov’t

4.        only major BOR guarantees NOT incorporated by 14th:  5th amend. Right not to be subject to criminal trial without a grand jury indictment and 7th amend. Right to jury trial in civil cases

B. Substantive Due Process

1.     Concept

a.     Ends or purposes

1)     objective must be – i) legitimate, ii) appropriate, iii) necessary

2)     promotion of i) health, ii) safety, iii) welfare, iv) morals of the people

b.     Means – reasonable and appropriate (real and substantial relationship to the legitimate end)

c.        Effect – effect on liberty and property of the parties, if too drastic violates due process

d.       Usually a regulation is stricken as a taking of “liberty” without due process of law, example:  state regulation found to be an undue interference with a private person’s “freedom of contract” or with his “right to privacy”


2.     Freedom to K - State cannot generally prohibit private agreements to work more than a specified number of hours (Lochner v. New York)


Lochner Test: 1) Close fit must be real and substantial relationship and

        2) Regulation of health and safety is permissable; readjustment of earning power is not permissable


a.        Lochner v. New York- violated liberty to contract

Facts:  employer arrested for violating state law which prohibited bakers from working more than 10 hrs/day or 60 hrs/week; D was convicted and fined for permitting baker to work past limit

Rule:  A law that infringes on freedom in market place and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate gov’t purpose.


b.     right to contract – subject to reasonable conditions established by the government under police powers


c.     under the state’s police powers they must regulate with regard to health, safety, morals or welfare of the public; here the public health was not affected by long working hours because baked goods were no less fit to eat

1)     was not possible to find connection between number of hours a baker worked and the healthful quality of bread made

2)     individual’s liberty imposes restraint on state’s police power


d.       legislation that infringes on individual right is valid only if it is fair, reasonable and an appropriate exercise of state’s police power


e.        this court refused to defer to the legislative fact findings of the state

f.         right to K is not a fundamental interest, this court treated it as such so that’s why it applied strict scrutiny

3.     Economic and Social Welfare Regulation- Substantial means-end relationship

a.        State can strictly control retail prices, even if such control inhibits the use of private property and the making of contracts (Nebbia v. New York)

Facts:  price of milk fell below cost of production; legislature determined milk was essential and low prices threatened contamination; Milk Control Board created to set min. and max. prices for milk; P was grocer selling milk below fixed price

Rule:  Law is unconstitutional only if it is arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt

1)     Test

a)     substantial relationship to proper legislative purpose

b)    not arbitrary, unreasonable, or capricious

c)     means are reasonably related to the ends sought

2)     no area is outside the province of state regulation for police power purposes, including the direct regulation of prices (state free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and enforce that policy by legislation)

3)     this case moves away from myth of market neutrality; liberty is taken away by market, not statute

4)  ****court moving towards giving greater deference to legislative intervention in economic affairs; gives greater deference to legislative fact findings


b.       state can impose minimum wage on employee-employer contracts (West Coast Hotel v. Parrish)

Facts:  state minimum wage law for women

Rule:  Regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process

1.     ct. gave substantial weight to redressing women’s inferior bargaining       power; minimum wage was a legitimate means to stop exploitation of women workers

2.     Rationale:  readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on that freedom of K

3.     court preserved substantial relationship to legitimate state objective, but later cases virtually abandoned this high degree of scrutiny


c.        Congress can prohibit interstate commerce in products it finds are injurious to the public health (US v. Carolene Products)

Facts:  Congress passed Filled Milk Act which prohibited interstate shipment of filled milk

Rule:  used rational basis test; means was rationally related to the end; act was constitutional

• ct. noted that Congress had acted upon findings of fact showing public health danger from filled milk, BUT even in the absence of legislative findings the ct held “the existence of facts supporting legislative finding is to be presumed, legislation not uncon. unless it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.; burden is on movant to show no rational relationship; presumption of constitutionality

1.     no state action so under 5th Amendment – no equal protection

2.     even 14th Amendment does not require states to prohibit all evils, (can pick and choose)


d.       14th Amendment does not prohibit all state business regulation that is not essential and directly related to the harm it intends to cure (Williamson v. Lee Optical)

Facts: statute that required an optician to have a prescription from ophthalmologist or optometrist to make glasses

Rule:  it is the duty of the legislature, not courts, to balance advantages and disadvantages of new requirements

1.     legislature must balance advantages and disadvantages of a new requirement

2.        courts will not strike down state laws regulating business merely because they are unwise

3.        there is an evil at hand for correction, and it might be thought that legislation measure was rational way to correct it

4.        gave great deference to the findings of Congress when enacting statute

5.        Ct hyposthesized reasons to enact legislation.

6.   The court may not review economic legislation on grounds that it is prohibitory and not regulatory (Ferguson v. Skrupa)

Facts:  statute declared it unlawful for any person to engage in business of debt adjusting except as incident to lawful practice of law; D was put out of business by statute b/c he was non-lawyer debt adjustor

Rule:  Up to legislature not courts to decide on wisdom and utility of legislature

1.     not within province of court to draw on their own morality, legitimacy, and usefulness

2.        courts do not decide whether a statute bears too heavily on that business and so violates due process

3.        states have power to legislate against injurious practices in their internal commercial and business affairs, so long as they do not run afoul of a specific federal con. Prohibition


e.        Summary of Modern Approach to Substantive Due Process- Economic

1.     Court has withdrawn almost completely from reviewing state legislative regulation for substantive due process violations; ct. has not struck down economic regulation for violating sub. Due process since 1937

2.     as long as objective falls within state’s police power (virtually any health, safety, or general welfare problem) and there is a minimal rational relation to means chosen and end pursued

IX.  Fundamental Rights and non-economic rightsexplicitly or implicitly guaranteed by the Constitution

A.  Fundamental Interests and Equal Protection

1.     Strict Scrutiny, narrowly tailored to compelling state interest, applied when fundamental rights involved (voting, access to the courts, and welfare)


2.        Procreation – state cannot sterilize habitual criminals if it distinguishes among the types of crimes that satisfy the definition of “habitual criminal” (Skinner v. Oklahoma)

Facts:  statute allowed atty general to initiate proceedings to render criminal sexually sterile; anyone designated a habitual offender could be made sterile if not detrimental to his health; D convicted of stealing chickens 3 times, therefore he was habitual offender

Issue:  Can a law that provides a very different punishment for those who have committed intrinsically the same quality of offense withstand judicial scrutiny?

Rule:  When the law lays an unequal hand on those who have committed intrinsically the same equality of offense and puts extra punishment on one and not the other, it has made an invidious discrimination

a)     stranger who takes $20 dollars from register is subject to sterilization however a clerk (embezzlement) taking the same amount is not

b)    no allowance for showing of no inheritable habitual tendencies

c)   law interfered with right to marry and procreate; deprivation of liberty

d)   strict scrutiny required because invidious discrimination made against certain groups

e)   state showed no biological differences between larson and embezzler; showed no evidence that criminal traits are inheritable

****PROCREATION IS FUNDAMENTAL RIGHT(violation of liberty, in textual basis of con. but it’s implied)


3.     Voting

a)     Support for Right to vote -

1)     14th Amendment – equal protection applied to right to vote

2)     15th Amendment – forbids denial or abridgment of right to vote based on race, color, or previous condition of servitude

3)     19th Amendment – granted right to vote to women

4)     24th Amendment – abolished poll tax for federal elections

5)     26th Amendment – granted right to vote to 18 year olds in state and federal elections


b)    Denial or Qualification of right to vote

1)     State may not exact a poll tax as a condition for exercise of the right to vote (Harper v. Virginia State Board of Elections)

Facts:  D charged all residents over 21 a $1.50 poll tax as precondition for voting; P sued alleging poll tax violated equal protection clause

Rule:  Voter wealth or the payment of any fee can’t be made a precondition for voting

a)     wealth or payment of a fee is an irrelevant factor in measuring voter qualifications

b)    however states may impose reasonable voter qualifications

****VOTING IS FUNDAMENTAL RIGHT(fundamental to structure of gov’t, implied as preservative of all democratic processes)


2)     State may not restrict the franchise for limited purpose elections merely on a showing of a rational basis for the restrictions (Kramer v. Union Free School District)

        Facts:  P challenged NY law limiting voting in certain school district elections to those who owned or leased property in the district or who had children enrolled in districts’ schools, challenged on Equal Protection grounds

        Rule:  It is a violation of EP to restrict the voting in school district elections to parents and property owners or lessors

a)     exclusions must be necessary to promote a compelling government interest; this wasn’t narrowly tailored because it allowed people with no interest at all to vote

b)    statute is not narrowly drawn  to affectuate its purpose to only include “primarily interested” or “primarily affected” parties and therefore not constitutional


c)     Dilution through apportionment: If vote is not weighed same as other people's then there is an EP claim.

1)     Federal v. State apportionment

a)     requires that representation reflect the total population as accurately as possible

b)    more flexibility allowed in apportionment of state legislatures

c)     grossly disproportionate districts are not allowed


2)     State must apportion its districts based on its population (Reynolds v. Sims)

        Facts:  SC struck down Alabama’s districting scheme because it did not apportion its district according to population which resulted in smaller districts having more representation in sate legislature than larger districts; districting scheme based on 1900 census to elect legislatures in 1960’s

        Rule:  A state must structure its elections and its state legislature so that its citizens are equally represented according to population

a)     right to vote is essential to democratic society

b)    votes cannot be weighted based on where the voters reside

c)     substantial equality of population must be the overriding objective

d)    periodic plan for reapportionment needed


3)     An at-large system of municipal elections not motivated by a discriminatory purpose does not violate the rights of a minority group consisting 1/3 of population (City of Mobile v. Bolden)

        Facts:  city commission consisting of 3 commissioners governed city of Mobile, 3 commissioners were chosen by residents of city at large and not by residents of 3 districts, Mobile had large black population but no back commissioners were chosen; P filed suit seeking change in voting system on grounds that at large system unconstitutionally diluted voting power of black residents

        Rule:  EPC does not require proportionate representation as an imperative of political organization

a)     neutral on its face so only violates 15th Amendment if discriminatory purpose shown by challenger

b)    when lack of equal representation violate 14th Amendment for equal protection:

1)     requires proof of official discrimination

2)     failure to elect proportional numbers of minority reps is not sufficient proof

3)       no right exists to representation of your choosing only a right to participate in the process

c)     P had to prove the disputed plan was conceived or operated as a purposeful device to further racial discrimination; law that impinges upon a fundamental right is presumptively uncon.


4)     A threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. (Davis v. Bandemer)

        Facts:  Republican controlled Indiana legis., passed reapportionment plan which provided for state legis. Of substantially equal population; Democrats claimed lines were gerrymandered and substantially understated Democratic voting strength

        Rule:  Court will review political gerrymandering controversies; In order to prove-up violation of EP both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group must be proved.

a)     challenger has burden of proving:

1)     intentional discrimination against identifiable political group &

a)     discrimination - inherent in legislative redistricting

b)    satisfied by district courts findings

2)     actual discriminatory effect on that group

a)     constitution does not require proportional representation

b)    test – whether electoral system is arranged so as to consistently degrade a voter’s or a group’s influence in the political process

c)       one election is not enough to show unconstitutional discrimination

b)   EP violation only where electoral system substantially disadvantages certain voters in their opportunity to influence political process effectively; lack of proportional representation alone is not sufficient to prove uncon. Discrimination


4.     Right to Travel

a.     Interstate mobility – “compelling” state interest required to impose restriction on citizens right to travel freely from state to state


b.     State cannot create a one-year residency requirement as a condition for receiving state welfare assistance (Shapiro v. Thompson)


Facts:  several states had laws which denied welfare to residents who had not lived within their jurisdictions for at least one year immediately prior to application for assistance.

Rule:  Under EP a state may not grant or deny welfare benefits to its residents based upon amount of time the resident lived within its borders.

1)     places burden on poor to travel to states seeking better opportunities            

2)     operation of the union and liberty is basis for fundamental right to free travel

3)     cannot hold welfare from short-term residents any more than you could hold police and fire protection

4) denying welfare may deprive person of the only means for them to subsist- food, shelter, and other necessities- therefore


5)  can’t deter people to assert their constitutional rights


c.     State may not limit the welfare benefits of new-citizens to the amount they would have received in their previous state of residency (Saenz v. Roe) not on exam

1)     Right to travel includes at least 3 components

i)      right to enter and leave another state

ii)     right to be treated as a welcome visitor

iii)    right to elect to become a permanent resident and to be treated like other citizens of the new state

2)     can have different treatment for citizen and non-citizen of state (college tuition) but not new and old citizens

3)     Privileges and Immunities – to be treated as citizen of state when residence within the state is achieved

**What you do to certain groups of citizens in your state, you must do to all citizens in your state.**


5.  NON-Fundamental Rights – Rational Basis Review

a.        Welfare - Imposition of a ceiling on welfare benefits does not deny equal protection to large families, which receive smaller benefits than do smaller families (Dandridge v. Williams)

Facts:  Maryland provision granted most eligible families a computed standard of need but imposed a monthly max of $250 per family regardless of size or need;  SC upheld provision

Rule:  Welfare is not a fundamental right

1)     welfare is not a fundamental right

2)     sufficient that states interest is rationally based and free of invidious discrimination

3)     statute is intended to encourage gainful employment


b.     Education

1)     State system of financing public education that closely correlates to spending per pupil and the value of local taxable property is subject to rational basis review (San Antonio ISD v. Rodriguez)

        Facts:  school district funds raised by property taxes, district that is not affluent can’t raise nearly as much as Alamo Heights School district, with low property tax base spent less on education per pupil than those districts with a higher property tax base

        Rule:  Even though system of financing education by collecting taxes on property in the school district leads to some disparity in spending per pupil across districts, it is not an irrational way for a state to fund education

a)     people living in poorer districts are not a suspect class

b)  in this case, the poorest families were not in the poorest districts, and the children have not suffered deprivation of education

c)   Equal Protection does not require absolute equality

d)    fundamental rights must be explicitly or implicitly guaranteed by the Constitution- education is not exp. or imp. in the const. so therefore is not a fundamental right

e)     policy – courts should not interfere with state fiscal policies unless necessary


2)     Form of Heightened Scrutiny (Quasi-Strict)

a)     rationally related to a substantial government interest – applies to kids of illegal aliens

b)    States may not deny undocumented school-age children the free public education that it provides to citizens and legally admitted aliens (Plyler v. Doe)

Facts:  TX legis. Passed law allowing schools to deny enrollment in public schools to kids who were illegal immigrants; Tyler ISD required undocumented kids to pay full tuition fee in order to enroll in schools

Rule:  If the state is to deny a discrete group of innocent children the free public education that it offers other kids residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest

1)     14th - equal protection to ANY person within a state’s jurisdiction

2)     statute imposes a lifetime hardship on children who are not accountable for their disabling status

3)     “substantial” state purpose required

4)     substantial state interests are not furthered by statute – (protection against illegal immigration, avoidance of the special burden of educating these children, likelihood children will not remain in the state)


B. Modern Substantive Due Process- Fundamental Rights

Fundamental Right of Privacy--> under liberty- roots and traditions

1) Right to choose to terminate pregnancy

2) Sexual Intimacy

3) Contaceptives (Bedroom Activity)

Apply SS except to abortion apply Undue Burden Test


1.     In Substantive DP area fundamental rights recognized by SC have tended to be in the related areas of:

a.        sex

b.       marriage

c.        child-bearing

d.       child-rearing


2.     Generally these fundamental rights fall within the broad category of the “right to privacy,” perhaps a better term is personal autonomy


3.   Fundamental v. Non-Fundamental

a.        non-fundamental:  only a legitimate state objective and a rational relation between means chosen and the objective; court gives great deference to legislative judgment

b.       fundamental:  strict scrutiny applied, narrowly tailored to compelling state objective, and state must show it cannot be achieved in a less burdensome way

4.     most of these cases are viewed as being part of the “liberty” guaranteed against state action by 14th amend.


5.     Fundamental Privacy Rights

a.        Contraception – Violation of right of privacy for state to make it a crime for married couples to use contraceptives (Griswold v. Connecticut)

Facts: statute forbade use of contraceptives, and also forbade the aiding or counseling of others in their use.  D were convicted of counseling married persons; D contends that statute violates implied privacy provision of DP Clause of 14th amend.

Rule: A right of personal privacy emanates from the penumbras, a zone of privacy, of the Bill of Rights and it cannot be invaded absent a showing that the legislation is necessary to accomplish a compelling state interest

1.     Bill of Rights- create penumbra (body of rights)

a.     1st Amend – right of association with the related privacy

b.     3rd Amend – privacy of home from quartering of soldiers

c.     4th & 5th Amend – including sanctity of home

d.     9th Amend – protects rights attained by the people

2.     law criminalizing use of contraceptives acts to destruct association of marriage

3.   Right of privacy is fundamental right subject to strict judicial scrutiny requiring a “compelling” state interest

4.        a broad constitutional right of privacy protects intimate aspects of personal life from gov’t intrusion

5.        this law seeks to achieve its goals by means of having a maximum destructive impact on marital relationship; it sweeps unnecessarily broadly and invades a protected freedom



a.     State cannot constitutionally make it a crime to procure an abortion with the only exception being to save the mother’s life (Roe v. Wade)

        Facts:  TX law made it a crime to procure abortion except for the purpose of saving the life of the mother, P claimed it invaded the const. right of women to choose to terminate their pregnancies, D argued fetus was a person

        Rule:  14th amend supplies a broad right of privacy and personal autonomy, entitling a pregnant woman to terminate her pregnancy but also enabling state regulation of abortion at various stages of the pregnancy; came up with trimester framework

1.     1st Trimester – state has no compelling interest so it cannot ban or even closely regulate abortions; state may require abortions be performed only by licensed physicians; mortality rate lower than rate for full-term pregnancy so no valid state interest

2.        2nd Trimester- states’ interest in mother’s health becomes compelling; state may regulate abortion procedure in ways reasonably related to her health, such regulations may include requirement that procedure take place in hospital rather than clinic; flat ban on 2nd trimester abortions not permitted, nor may the state regulate in any way to protect the fetus

3.        3rd trimester- court states fetus becomes viable; states’ interest in potential life and mother’s health are compelling; state may prohibit abortion during 3rd trimester, but abortion must be permitted where it’s necessary to preserve life or health of the mother

4.        decision was premised upon “right to privacy”, part of “liberty” guaranteed by 14th amend


b.     Government regulation on Abortion

1.     Elective Abortion – Citizen does not have an unqualified right to an abortion with which interference must pass strict scrutiny (Maher v. Roe)

Facts:  ct. upheld state regulation granting Medicaid benefits for child birth, but denying those benefits for non-therapeutic abortions (abortions not medically necessary)

Rule:  Denying welfare benefits for abortion does not impinge on fundamental right

a.        financial need alone is not a suspect class

b.       this law placed no obstacle on woman’s path to abortion, she has to depend on private sources of money as she always has

c.     no fundamental right to abortion, it’s the right to choose

d.     state’s interest in protecting potential life is clear, subsidizing costs of childbirth is a means of protecting that interest

e.     funding for only medically necessary abortions is state’s option, can make a value judgment that has nothing to do with mom’s health or potential life

2.        Public funding of medically necessary abortions – Congress can deny public funding for certain medically necessary abortions while funding substantially all other medical costs including costs of carrying pregnancy to term (Harris v. McRae)

Facts:  ct. upheld Hyde Amendment which prohibited use of federal Medicaid funds to perform abortions where life of the mother would be endangered, or for rape or incest victims

a.     no entitlement to funding to pursue the protected choice was recognized in Roe

b.     funding of other medically necessary expenses but not ones relating to abortion left woman not worse off than she would have been had there been no funding at all

c.        mere existence of const.- protected right did not obligate gov’t to grant funds needed to exercise that right

d.     wealth is not a suspect class


3.        Planned Parenthood v. Casey:  Permissible state regulation – State may impose notification and consent requirements as prerequisites for abortion

Facts:  Pennsylvania imposed several restrictions on abortion:

1.                    24 hour waiting period prior to abortion

2.                    woman had to give informed consent

3.                    minors had to have parental informed consent, or get it from a judge

4.                    married women had to tell their husbands

5.                    had reporting requirements on facilities that provided abortion services;

**act exempted compliance in case of medical emergency

Rule:  Roe reaffirmed, court does away with trimester framework and strict scrutiny and established “undue burden” test

a.        “undue burden” exists if the law’s purpose or effect has placed a substantial obstacle in the path of a woman seeking an abortion before fetus viability

b.       as long as it is not an undue burden, a state may take measure to ensure a woman’s choice is informed and may enact regulations to further health and safety of woman seeking abortion

c.        24 hour waiting period and informed consent requirements were not undue burdens because it facilitated a wise exercise of those rights

d.       husband notification requirement is an undue burden because it is repugnant to our present understanding of marriage(woman maintains rights after marriage):  places risk of spousal abuse on woman

e.        minor’s parental consent is not undue burden because it does include for a judicial bypass; reasoning: 1) parents will have best interests in mind, but 2) if girl does not want to tell or cannot get consent, courts can waive parental consent upon finding of girl’s capability of giving informed consent

f.         facility reporting requirement does not impose undue burden

g.       unless it has the effect or her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal

h.       basically, a state can regulate and restrict abortion from conception

i.    Roe holdings reaffirmed:

1.     woman’s right to choose before viability without undue burden

2.     state’s power to restrict abortions after fetal viability, with exceptions to protect health and life of mother

3.     state has legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the potential life (Roe forbade any regulation of abortion designed to advance state interest before viability)


4.     Stenberg v. Carhart: Ban on partial birth abortion – States may not regulate abortion by banning a specified procedure if the statute has no exception for the health of the woman and would also encompass an additional commonly performed procedure

        Facts:  statute banned partial birth abortion unless procedure was necessary to save the life of the mother; partial birth abortion defined as abortion in which the live fetus is partially delivered vaginally and then killed before the delivery is complete and then completing delivery

        Rule:  A law banning partial birth abortion creates an undue burden on a woman’s right to obtain an abortion


        a.  Statute was unconst. for 2 reasons:

1.        statute did not contain an exception allowing the procedure where it was necessary to protect the health of the mother; evidence showed D&X is sometimes safest procedure, so banning it forces her to use riskier methods of abortion, thereby endangering her health

2.        language of the statute was ambiguous; state’s intent may have been to prohibit D&X procedure but language of statute also allowed D&E procedure to fall within definition of partial birth abortion; statute may punish doctors who perform D&E’s so doctors may fear prosecution which in turn is an undue burden on woman’s right to choose


b.     subject to undue burden test – “substantial obstacles”


c.     did not provide for partial birth abortion when mothers health is at risk - court said you have to have a health exception


d.       statute eliminated both D&E and D&X procedure by court’s interpretation


e.        court will closely scrutinize state efforts to regulate abortion procedures, at least ones that are used pre-viability


7.     Privacy of unmarried individuals:  (Lawrence v. Texas)

        Facts:  TX statute made it a crime for 2 persons of same sex to engage in certain intimate sexual conduct

        Rule:  State cannot demean D’s existence or control their destiny by making their private sexual conduct a crime


a.        this case overturned Bowers v. Hardwick

b.       homosexuals may seek autonomy just as heterosexuals do, Bowers denied homosexuals this right

c.        this is a violation of 14th amend. DP Clause because homosexuals have right to privacy

d.       what level of review?  Court did not really say.  Think it is strict scrutiny, but ct. talks about legitimate state interest.  All court says is it does not pass legitimacy test so there’s no way it could be compelling


8.   Right to Die:  Cruzan v. Director of Missouri Dept. of Health

Facts:  Nancy was in persistent vegetative state and would not regain mental facilities, had artificial feeding and hydration tubes to keep her alive, parents asked hospital to terminate artificial techniques that would result in her death,  state law required proof of Nancy’s wishes by clear and convincing evidence,  parents did not prove evidence by “clear and convincing” means

Rule:  DP Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment, and a state may legitimately seek to safeguard the personal element of this choice for incompetent persons through the imposition of heightened evidentiary requirements

a.        this court did not announce a fundamental right - assumed the const. would grant competent person a const. protected right to refuse lifesaving techniques

b.       the court is NOT imposing clear and convincing evidence burden, just saying it’s ok to have heightened evidentiary standards for incompetent persons

c.        state has interest in protection and preservation of life, choice between life and death is personal and final, so state can legitimately seek to safeguard the personal element of choice

d.       14th amend. DP Clause protects an interest in life as well as interest in refusing life-sustaining medical treatment, but state is allowed to safeguard against potential abuses

e.        state has sought to advance interests through a clear and convincing std. of proof to govern such a proceeding, and this is ok

f.         a competent person has a const. protected liberty interest in refusing unwanted medical treatment

g.       Where the patient is incompetent to express present wishes (as Nancy was) ask: Has the patient previously expressed clear wishes either: (a) that she does not want medical treatment under circumstances like those now existing; or (b) that she wishes some designated other person to make such decisions for her in the event of incapacity?  If the answer is No (like in this case) then we now know state may refuse to discontinue the procedures even though all concerned agree that it would be best to terminate treatment.