Textual, Structural, Natural Originalist, Realist, Formalist How to include origins and thinking into our analysis?

When taking the perspective of one side? Representation-reinforcement? Pretext doctrine?

Structure - The Constitution and the Role of the Supreme Court o Origins Articles of Confederation (Compact or Agreement Model) Each state retainsevery power, jurisdiction, and right which is not by this confederation expressly delegated to the US Important shortcomings o Lack of enforcement power (collect taxes) and encroachments on federal power o Lack of cooperation, especially economic, eg, regulate commerce o No executive, judicial authority o Variable laws and lack of respect between states of laws No bill of rights (although many thought that bill of rights not necessary to Const.) Federalist 10 purpose of federalism was to inhibit politics; maintain the status quo; block majority from controlling faction minority or majority politically mobilized with interest against the common good or other minority Mainly concerned abt the balance b/t creditors and debtors. the most common and durable source of factions has been the various and unequal distribution of property Large republic with many interests neutralize factions; delegates filter factions Federalist 51

 Checks and balances to protect from concentration of power in the same department. Mainly concerned with Congress gaining too much Ambition must be made to counteract ambition Constitutional Values Limited Government o Separation of Power, Checks and Balances o Federalism Supremacy o Constitution Unlike Virginia Const. (deep Const agreement establishes a new govt by act by people who are regarded as free but must obey new govt), Const. has no explicit political theory Expands and consolidates national power into 3 branches Impediment to mobilization of public will Supreme Law of the Land Art I Congressional Powers Sec 8 Enumerates Sec 9 Restricts Sec 10 State Power Limitations Power reserved to Congress Art II Executive Powers Art III Judicial Power Vested in SupC and inferior courts as Congress may create Jurisdiction (provided by Const. but limited as Congress wants) o Federal question, diversity Sec 2, Cases and controversy Amend 1 -10 Bill of Rights Amend 14 for first 70+ years Const was only applicable on federal level imposed a general review of any acts state/local govt violated the federally protected rights o Basic Framework: Judicial Review: Marbury v. Madison Holding: Judiciary Act was invalid, ie, not constitutional. Also, SupC without power to direct the President to deliver. How can SupC invalidate laws?

 Constitutional Supremacy (Art VI, Sec 2) - it is not just an agreement, it is a special initial act that binds all subsequent acts. Govt action or laws invalid if not in accordance Judicial Review Why judges? should judges interpet? o Relies on the Constitutions structure Written constitution: (1) Binds fed govt, (2) courts authorized to enforce o Judicial Role interpret laws Protect individual rts Cannot interfere politically, in discretionary decisions Grant of Juris. to all cases arising under the Const. Judges Oath Should SupC be able to invalidate co-equal branchs interpretation? o Congress can do its own interpreting and is elected by people o Judiciary is insulated and has expertise o Sources of Judicial Decision Interpretation McCulloch v Maryland (Realist) Sets up Fed v State power Issue: Can US operate a bank? o Maryland: Fed govt is subordinate to the States bc ratified by States Const. emanates from the people and is supreme law. Binds state sovereignty although limited in power, superior in sphere o Amend 10 reserves all other power to the states (Textual Arg) Constitution is only an outline with major objects designated and minor objects to be filled in later (Struct Arg) o Bank is not necessary or proper, merely convenient (Textual Arg) A govt entrusted in ample powers must also be granted the ample means

 A const intended to endure for ages must be adaptable. Cannot become legal code. (Struct Arg) Necessary and proper extends, not constrains Cong Can States tax that bank? o Yes, no constitutional prohibition (Textual Arg) No, every state will levy a tax that taxes citizens not represented in it. Federal govt has universal representation so taxes by states acts on federal govt are invalid becase they have limited representation (Struct Arg) Representation-Reinforcement judicial role is to make up for defects in the ordinary operation of representative govt that tend to come from the breakdown of political processes Calder v. Bull Conn. Legislature orderd a new trial in a will contest, setting aside judicial decree. What is the role of natural law? Such a state intrusion contradicts very nature of a constitution. Text - follow the words of the document otherwise document is meaningless and null. Look to the intent of the founders. Critique: Words have different meanings and gaps exist so govt must fill in through time and update the meaning Structural Government must work and adapt to societys needs, so power granting provisions should be construed broadly. Pragmatic approach. The document implies many powers and values (representation-reinforcement) Critique: No real boundaries to govt. power. Susceptible to moments of expediency Natural Law (Moral) first there was the unwritten constitution or the purpose of social compact. There are acts which the govt cannot do. There are rights that cannot be infringed upon. Critique: The ideas of natural justice are regulated by no fixed standard. Assumes that there are right answers. Defies the purpose of written Const. o Case or Controversy Requirements and the Passive Virtues

 Forbids SupC from invalidating legislatute or executive action merely for unconstitutionality, can only do so in context of a case. Therefore, SupC cannot make Advisory Opinions & Decide political questions (What can be litigated?) Requires standing (Who can litigate?) o A personal stake in the outcome at to ensure concrete adverseness which sharpens the presentation of issues o Statutory Must identify the injury it seeks to vindicate and relate the injury to a class of people entitled to bring suit Does not have to meet all the requirements Must be ripe and not moot (When can they litigate?) This encourages judicial restraint, ensures disputes are concrete and not abstract (at someones behest), cushions conflict between SupC and other branches (see how it plays out), prevents judiciary from becoming a monitor (Allen) Standing Modern Standard (Lujan) Injury in fact o Concrete and Particularized - Injury must distinguish you Asserted right to have govt obey law is not sufficient standing alone (Allen) Stigmatic injury suffered by all blacks will not satisfy it must be those who are personally denied equal treatment (Allen) Aesthetic, stigmatic, economic, environmental can all be legitimate injuries o Actual or imminent, not conjectural Cannot be in unknown future date (Lujan) Causal connection o Fairly traceable to the D, not the result of 3rd party not before court Line of causation from IRS charity exemptions to private schools refusing blacks is through 3rd party and attenuated (Allen v Wright)

 Remedy o Must be likely as opposed to speculative that redress will occur Judgments that will not bind 3rd parties or only marginally affect outcome are speculative (Lujan) Allen v Wright Parents of black children attending public schools in districts undergoing desegregation brought nationwide class action alleging that Internal Revenue Service had not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools o 1) harmed by mere fact of financial aid to private schools. o 2) impairs the ability to have public schools desegregated Lujan v Defenders of Wildlife Environmental groups brought action challenging regulation of the Secretary of the Interior which required other agencies to confer with him under the Endangered Species Act only with respect to federally funded projects in the United States and on the high seas. P believes it applies to actions within foreign govts and should therefore obey law of consultation Congress cannot create standing by convert a general public interest in the Executives compliance with the law into an individual right o Majority: primary role is to protect individual rts. Congress and Exectuive vindicate public interest o Dissent: judicial role is to interpret laws. We are within our bounds to decide whether executive is out of line. Massachussets v EPA MA is suing EPA for abdicating its responsibility under the Clean Air act. MA wants EPA to regulate motor vehicle emissions. MA asserted the statutorily created right to challenge agency action unlawfully withheld on behalf of its citizens.

 Maj: states have special standing doctrine parens patriae (esp., with regard to climate change) o Climate change is the epitome of general injury to the public MA had injury in fact. Causation existed. Remedy helpful o Given the statutory right and MAs quasisovereign interests, it has special standing. Min: Parens patriae still requires injury, causation, redressability o Injury to coastal lands not occurred yet. Traceability is impossible. Redressability is unsure. - Congressional Powers and Federalism o Values of Federalism/ Techniques Enumeration Art I, Sec 8 presupposes something not enumerated No inherent legislative powers but o McCulloch v Maryland if the ends be legit. and means consistent with letter and spirit of const. then its constitutional o Pretext test: If legislation is for something not entrusted to the govt, it is unconstitutional Amend 10 -All powers not delegated are retained by the people and states Values Const. rejects the notion of a collection of states and creates a direct link between the People and the US govt. Congress therefore is representative body of the People not delegates of the States Concerns: the limits of natl govt, mechanisms of enforcement, role of courts Benefits: Efficiency, Individual choice, experimentation, more democratic, prevent tyranny o History of Commerce Clause: shall have power to regulate commerce among the several states Gibbons establishes supremacy of natl regulation in commerce.

defines commerce clause power with organic definition of commerce Meandering economy more interstate, integrated by large corporations and Court meanders between limiting and empowering Congress Problems o direct v indirect controvery precluded any discussion of the magnitude of local transactions and need for natl regulation o stream definitions debate over where interstate commerce starts and ends o using commerce power for police ends Post 1930s Defiance No indirect effects. Stream has a start and end Capitulation People no longer believed in the Courts ability to objectively try cases. Formalist was just a disguise to decide however it likes Chose the realist approach Gave up the pretext test somewhat, not going to probe Congresss means/end, moved to a rational basis approach Civil Rights Cases Modern (1995) First time since New Deal the commerce power was inadequate to sustain a law SupC intends to protect the balance of power between natl and state govts but returns to uncertainty The Debate undefinable limiting principle (Rehnquist) v failure to indicate any limits (Breyer) Rehnquist o Must be a constitutional distinction o Bracket how far Wickard can be applied to noneconomic issue, otherwise enumeration is meaningless

o Accepts some legal ambiguity between commercial and noncommercial Breyer o Legal uncertainty is nonfunctional and impossible to maintain a constitutional distinction o Institutional competence is core issue. Judicial review is not a good tool to manage these problems o Representation-reinforcement is primary check to Cong power Kennedy o Tradl areas of state regulation should be respected o This is a more stable realm to distinguish roles (more history, content). It will look less political. Economic v noneconomic distincition will draw SupC into meandering again and loss of credibility Souter: No Fed power can always be argued to reach state issues and its supreme. Fed v state solution will not solve the problem Thomas: we should be committed to enumeration and limit expanding definition o Fundamentals Gibbons v Ogden (Realist) (1924) - Foundation State statute for exclusive right to operate steamboats in NY. Gibons operating competing steamboat service. NY statute invalid under supremacy clause and commerce clause Commerce among the states defined as commercial intercourse among between states and parts of states in all its branches Power to prescribe the rule by which commerce is to be governed Completely internal commerce is reserved to state Congresss power acknowledges no limits, ie, Congress > States o Representation is one limit on commerce clause, const. limits apply as well o Conflicts of commercial regulations was a primary reason the Art of Conf were abolished

 States police power is operative within the state Hammer v Dagenhart (1918) Police Ends Child Labor Act: prohibited transportation of goods made by kids between states (background: Congress trying to police morality through commerce clause) Commerce clause not intended to equalize competition or improve social conditions. Congress trying to coerce states to exercise police power. (Realist Arg) o Not legitimate use of commerce powers: transcends federal authority of commerce clause to exert local control o Regulating indirect effects not OKd Dissent: First, congress acting within the scope of the commerce clause. Its indirect effects cannot void the legislation just because indirect effects are obvious and of moral nature. OVERRULED in Darby. Can use the Commerce power for police ends. Wickard v Filburn (1942) Affectation Doctrine Sec of Agr sets quotas for wheat prod. Filburn exceeded quota and is now protesting the penalty. Home grown wheat should not be considered in quota bc its for personal use o Home grown wheat competes with wheat in commerce. Therefore, it can be regulated bc it exerts an economic effect Direct/indirect distinction no longer meaningful. Production, mfg/commerce distinction no longer meaningful Aggregation (affectation) doctrine is initiated o The aggregate or cumulative impact of all individual producers that provided the bases for regulation MODIFIED in US v Lopez and US v Morrison. Political Constraints versus Judicial Enforcement o Meandering of Commerce Clause US v EC Knight Co (1895)

 US tried stopping Sugar refining company from gaining a monopoly over mfg of sugar. (Sherman Act antitrust). SupC said Sherman act did not reach the company bc mfg is not commerce. Commerce succeeds mfg. (Formalist Arg) Interstate commerce has a beginning and an end West Texas Railway v US (1914) Railway had prejudicial (higher) rate against Shrevport LA. Congress enacted a rule eliminating discriminating price against Shrevport. SupC held that authority did extend to interstate carriers as instruments of interstate commerce Champion v Ames (1903) Prohibited interstate travel of lottery tickets SupC upheld a clear usurpation of the state police power because Congress power is plenary and can Expands commerce power to practically everything Contradicts Hammer only 15 years before o Defiance Period New Deal Crisis - Congress begins to legislate generally to repair economy and interefered with prerogatives of private property and domain of the state ALA Schechter Poultry Corp v US (1935) Invalidated the National Industrial Recovery Act the conceptual centerpiece of the New Deal which authorized creations of codes of fair competition for industries including the poultry industry Crises do not enlarge the power of govt Stream or flow of commerce ceases when it arrives in a state Direct effects on commerce within scope of comm clause, indirect effects not within scope Codes interfere with police power of state o Chickens go between periods of intra and interstate power Courts are not judging on the merits of a natlized system Carter v Carter Coal Co (1936) (Formalist) Congress enacted regulations for prices, minimum wages, maximum hours, and "fair practices" of the coal

o Capitulation FDR fights back and appoints new judges NLRB v Jones &Laughlin Steel Corp (1937) (Realist/Pragmatist) National Labor Relations Act established comprehensive system for labor/management relations. The National Labor Relations Board charged the Jones & Laughlin Steel Co. with discriminating against employees who were union members Contradicts Carter with new line of reasoning. Scope: Things that burden or impact interstate commerce can be regulated, like management disputes. o Aggregation and indirect effects can be cited as evidence to exercise com clause We should look at the concrete effects and ask if this power is sensible US v Darby (1941) In upholding a provision of the Fair Labor Standards Act prohibiting the shipment of goods in interstate commerce which had been produced by employees working for substandard wages

industry. Compliance was voluntary, tax refunds were established as incentives to abide by regulations. Invalidated act bc all the ends (although worthy) were not enumerated by commerce clause Extraction of coal is the aim and result of local activities, ie, production/mfg. No Aggregation: The distinction between a direct and an indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. If the production by one man of a single ton of coal intended for interstate sale and shipment, and actually so sold and shipped, affects interstate commerce indirectly, the effect does not become direct by multiplying the tonnage, or increasing the number of men employed, or adding to the expense or complexities of the business, or by all combined. OVERRULED by NLRB v Jones &Laughlin Steel Corp

 Congress following its own conception of public policy concerning its regulations is free to exclude from interstate commerce articles whose use may be injurious to the health, safety, morals even though the state hasnt Court should not probe the purpose or motive of Congress 10th amend is simply a truism. If you buy/participate in any way in interstate commerce then you full under commerce clause o Contradicts Hammer -Congress can use commerce power for police ends and can coerce o New Deal legacy Commerce Clause for Civil Rights Heart of Atlanta Motel v US (1964) Title II of Civil Rights acts all person should have equal enjoyment of goods. Accommodations were deemed integral to interstate travel. (The obstruction to commerce was a moral/social wrong) If racism burdens interstate commerce it can be regulated. How to remove obstructions to interstate commerce is within the exclusive discretion of Congress o Indirect effects are Okd o Police and social welfare motivations can be valid Rational basis: constitution requires no more than that means are reasonably adapted to the end permitted by the Const. Katzenbach v McClung (1964) Restaurant discriminated against blacks. It purchased a lot of its food from out of state. A lack of restaurants is impediment to interstate travel. Katzenbach argued that there must be case by case judgment but where a rational basis exists, SupC should not interfere Although only a very small impact of one restaurant, Congress can consider the aggregate impact in determining the burden o Modern Approaches US v Lopez (1995) (Formalist) Gun Free School Zone Act unconstitutional prohibition on possession of firearms.

 Any activity eventually falls under economic activity if given enough steps o Piling inferences upon inferences o Non economic-> Non economic-> Economic 3 broad categories o regulate the channels of commerce o protect the instrumentalities of interstate commerce, even though threat may be local activity o activities have a substantial relation to interstate commerce (debate centers on this point) accepts New Deal redefinition to entire economy but limits it to commercial activity Elevated rational basis review not a new standard and can choose to employ rational if it wishes o Relevant commercial basis o Substantial impact on commerce o Intrudes on state power Dissent: Congress can make exercise commerce power based on inferences. Guns around schools negatively impact education which impacts economy. Guns obtained through interstate sales o Rational basis is enough US v Morrison (2000) (Formalist) Violence against Women Act invalidated. Gender motivated crimes are not economic activity and mostly of intrastate criminal conduct. States police power needs to be respected Aggregation of but-for causes, no longer viable Although Congress had supportive findings, its still a matter of judicial determination if something is economic/commercial Thomas: Go back to original definition of commerce (trading) (Formalism/orginalism) o Anti-surplusage reasoning Dissent: Return to rational basis review giving Congress leeway

o Institutional competence Cong better positioned to decide o Now there is no definable line again o Dormant Commerce Clause (State Regulation of Interstate Commerce) 3 motives for dormant commerce clause All states are partners in a single national enterprise (primary goal) Efficient disposition of resources o Kassel impair efficient travel o Exxon bad economics but local choice No representative-reinforcement for burdens on out of state (dairy farmers) Overarching Principles: Fed govt has exclusive power to regulate interstate commerce Preemption: Ct strikes down where Congress has expressly supplanted state law, taken the field, or passed conflicting laws Issue: State Police Power v Fed Commerce Power? police nature and commercial nature natl and local nature Modern View: Where state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit Method of Review: 1) Discriminatory intent or effect o Per se invalid unless necessary Protectionist Ex: protective tariff or customs duty Necessary: Ex: environmental concens 2) Even-handed (only incidental interstate commerce effect) o Valid if: Legitimate state purpose But invalid if it fails sensitive consideration

o Burden imposed on commerce is great than local welfare benefit Levels comp.? o Justification is a pretext Clearly less burdensome alternative Law is ineffective for its police purpose o (But no clear line as to what kind/magnitude of burden) City of Philadelphia v New Jersey (Facially Discriminatory) Debate the constitutionality of a New Jersey statute prohibiting the importation of most solid or liquid waste which originated or was collected outside the territorial limits of the State. SupC outlined to method of review All objects of interstate trade merit commerce clause protection and none is excluded at the outset Commerce is open to control by states o crucial inquiry is to determine whether statute is basically a protectionist measure, or whether it can fairly be viewed as law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental Principle: No free-rider states (or protectionist). It cannot isolate itself from problem common to many by preventing interstate trade West Lynn Creamery v Healy A Massachusetts statute required all milk dealers in the state to pay a monthly premium payment into the MA Dairy Equalization Fund. (non-discriminatory tax) Every month the fund was distributed to MA milk producers so they could compete with lower cost dairy farmers from other states. (Subsidy: legit use of police power) o Two independently constitutional laws that combine to burden out of state commerce = Not constitutional

 Problems of representation-reinforcement. Dairy farmers are mollified from protesting tax. Out of state have no rep. Scalia/Thomas o Could be constitutional if the money goes into general coffer and competes for non-protectionist ends *Note: subsidy presumed constitutional but tax exemption is not. Turns on active accounting and passive accounting Dissent: o The commerce clause does not dictate how a subsidy (legit state end) should be carried out Hunt v Washington State Apple North Carolina adopted a statute requiring all containers of apples shipped into the state display no grade other than the applicable U.S. grade or standard. Washington state apple growers challenged the statute as an unreasonable burden on interstate commerce Although facially neutral, SupC can infer a Dormant Clause violation o Burdensome: increased cost to Washington apples by forcing them to alter marketing practices o Strips away competitive advantage of Washington apples grading system o Levels competition Non-discriminatory alternatives easily available Exxon Corp v Governor of Maryland The state of Maryland enacted a statute prohibiting producers or refiners of petroleum products from operating any retail service stations within the state. Not discriminatory against flow of goods or protectionist for local companies. Dormant clause protects the interstate market, not interstate firms. o Although burden of regulation falls on some interstate firms, does not establish a claim under Commerce Clause

 A policy may be unwise but comm clause does not protect the structure or operations of the market Dissent: o A slight burden is different than singling out a class of out of state firms. State should justify this with legitimate state interest- what was the interest? o In future, states can identify potent out of state firms and ban them by some commonality Kassel v Consolidated Freightways Iowa prohibits the use of 65 foot doubles (a certain type of truck) within its borders, but makes certain exceptions for the same trucks used for the benefit of Iowa residents. Burdensome: Iowas regulations out of step with all of its neighboring States regulations. Discriminatory: provides Iowans exemptions that are not extended to out-of-state interests Deference is greatest in traditionally local matters (where Congress has never regulated) States police power is invalid excuse when regulations o only marginally improve conditions making justification is illusory (could be done so more effectively other wise) o interfere with commerce substantially and disproportionately burden interstate comm. Dissent: o Ct should take a more deferential approach bc this is not judicial role to determine economic policy o Test: rational policy? Local benefits > out of state burdens? Should not take into consideration other states choices and force Iowa to comply with neighbors o Scope of Congresss Power Enforcement power under Sec. 5 of the 14th Amendment Purpose: Establish Fed dominance over States in regard to certain Fundl rights 14th, sec 5 - Congress shall have power to enforce the article by appropriate legislation

o Interpretive power appropriate o Preventative Power regulate stuff that the Court hasnt yet found to be violation o Remedial Provides causes of action and damages o Interpretative > Preventative > Remedial Ratchet Theory only works to enforce rights, not limit or dilute them Mode of Analysis: o Valid use of sec 5 power Look at the class and method of review owed What review did Congress give and done properly? o Congruent and Proportional Katzenbach v Morgan Sec 4e of Voting Rts Act designed to enfranchise Puerto Ricans in NY upon successful completion of the sixth grade. Contrary to state literacy laws. Valid sec 5 exercise of power bc Congress can decide whether something violates Equal Protection o Judicial review does not have to precede Congressional action. o Must have the ability to use its enforcement powers. Judicial review of Congresss exercise of enforcement powers is one of ratl basis Dissent: Judiciary decides the constitutionality of laws o Court has given Congress the power to define the substantive scope of the Amend. (and its own powers) o 14th amend swallows the States authority City of Boerne v Flores Archbishop brought suit being denied building permit to enlarge church. Congress had exceeded scope of its enforcement power under 5 of Fourteenth Amendment in enacting Religious Freedom Restoration Act. Congress does not enforce a rt by changing what the rt is. o It only has the power to enforce, not determine what constitutes a constl violation.

 Re-establishes judiciarys role as interpreter. Congress can enact laws that have: o Congruency: b/w means used / ends achieved o Proportionality: b/w behavior / remedial objective MODIFIES Katzenbach - no longer can be used to cite for interpretative power now only preventative, remedial If Congress defines own powers, it reduces Const. to just another legislative act and alterable when Cong. Pleases Scalia Cts congruency/proportionality test is vehicle for individual judges preferences Board of Trustees v Garrett State employees brought separate actions under, Americans with Disabilities Act against trustees for state university and Alabama Department of Youth Services. Congress must use the appropriate method of review for state legislation o rational basis review for issues of age and disability discrimination Congress assembled only minimal evidence and did not prove history of irrational, discriminatory state behavior o It would use heightened scrutiny for gender, race Exceeds Cong/Prop test o Not congruent: Special accommodations for disabled far exceed what is EPC constitutionally requires. o Not proportional: abrogating state immunity for no constitutional violation Dissent: o SupC can only test the rational basis of Congress. Not impose Cts rational basis review for Congress. Treats Congress as inferior Ct o Enforcement powers cong/prop test is like the old Commerce clause analysis? The 10th Amendment as a limit on Congressional power Old Rule: Respect states traditional, integral sphere of operations. New: Congress can reach most areas with proper justification, but cannot commandeer:

o Cannot require States to enact legislature o Cannot require State officials to carry a program out o Question of accountability: National govt insulated from the political effects and costs of their decisions Missouri v Holland (Realist) Missouri wanted to prevent US game warden Holland from enforcing Migratory Bird Treaty Act of 1918. Natl govt has treaty power and they become supreme law of the land. o But what congress cannot do, a treaty cannot do. Do invisible radiation from 10th amend forbid treaties that expand congressional power to its limits without crossing prohibitions? o In times of emergency, a power must exist in the govt to do what needs to be done; o if reliance on states would be vain or insufficient, then national action is necessary Garcia v San Antonio Metro Court rejected old rule conception of traditional, integral governmental functions as protected spheres of state governments as unworkable Courts are not the guarantors of the Federalist boundary, rather the structure of the system and procedural safeguards are. Dissent: States have legitimate interests which the national govt must respect. Court must maintain compliance with this system otherwise rely on Congresss discretioon New York v US (Formalist!) NY challenged provisions of Low-Level Radioactive Waste Policy Act. Act's take title provision, requiring states to accept ownership of waste or regulate according to instructions of Congress, lies outside Congress' enumerated powers Const. does not grant Cong power to force States to govern according to their instructions. It can:

o Attach conditions on receipt of federal funds that have some relationship to the purpose of the spending o Under commerce clause, give choice of regulating according to federal standards or having state law pre-empted by fed regulation. Choose to have Fed or state govt bear the expense of program. Very important federal intersts can justify state submission but must do so directly and pre-empt States. In case of coercion, federal officials are politically unaccountable from their decision Constitution sets forth form of govt which cant be changed for convenience Dissent: How is federalism preserved if natl government can just directly command obedience? Printz v US Brady Act reqd Att. Gen. to est. a natl instant background check system for weapons and use local law enforcement to check. MO/AZ challenged constitutionality: Compelled enlistment of state officer for administration of fed programs. Increases power of natl govt at no cost and with no increased responsibility by shiting from Executive o take care law be executed to the local officers. Asks each state to make judgment calls on policy, ie, how to enforce Dissent: Fed was intended to have power to demand that local officials implement national policy programs. (Thats why we discarded the Art. Of Conf) o Congress is still accountable - Separation of Powers o Federalist 48: It is not enough to delineate each branchs role. Every dept will want more power. We should focus effort on controlling Congress o Separation of Power: autonomous entities with different functions o Checks and Balances: overlapping functions to intrude upon each other Pros: Offer efficiency (division of labor) and prevention of tyranny

 Cons: Intrabranch fragmentation already prevents concentration of power, stalemate, aggravates problem of factions o Debatable Issues: Non-delegation one branch cant delegate its authority to another. Ex: Congress giving FDA or IRS broad decision-making power. Or line item veto Quasi-constitutional statutes Cong improperly reasserting auth Ex: War Powers, Legislative Veto Power of execution/interpretation/legislation should not get too mixed together o Modes of Interpretation: Close Scrutiny Formalist enforcing textual boundaries, follow Framers intent, save us from expediency Too rigid for adapting to new govt functions, unpredictiable results Realist focus on function and flexibility Undermining the written Const., sacrifice underlying values encouraged by Const structure, no guidelines o Youngstown v Sawyer (Formalist) After the employees of steel companies threatened to strike, the President ordered the seizure of the Nations steel companies. Pres must issue order stemming from act of Congress or art. II power. Pres. is not lawmaker. Military power does not encompass seizing personal property Const explicitly outlines Ps role in lawmaking Concurrence: Frankfurter When Congress, conspicuously does not give P a power, it bans P from exercising the power. (occupy the field) If P had a history of exercising a nongranted power, then it may be valid. History defines executive Concurrence: Jackson Three planes of action: Implicit/Explicit authorization > zone of twilight (independent powers/congressional inaction > against the will of Cong Commander in chief v Congress occupied field, invading Congs power to raise armies, contrary DPC

 Moral: o Emergency powers should never be invested in Pres. (look at Germany) Dissent: Pres is not mere messenger boy. o Foreign Affairs Hamdi v Rumsfeld Congress passed AUMF empowering the President to use all necessary and appropriate force against nations, organizations, or persons that he determines planned, authorized, committed, or aided in September 11. Petitioner Hamdi, an American citizen whom the Government has classified as an enemy combatant AUMF allows for detention of citizen-enemy combatants so he is within the Pres art II powers o BUT he cannot be denied his DPC although these can be tailored to circumstances Executive must still respect DPC Concurrence: Souter o AUMF does not abrogate the Non-Detention act which has been violated and therefore hes outside art II powers o Should be given his DPC and Habeas Corpus rts. o Domestic Affairs (Must follow the structure that Const. (Framers) gave us Legislative Authority Nondelegation Doctrine and Quasi-constitutional Statutes INS v Chadha (Formalist) o One-house veto over executive orders for alien deportations. Veto provision gives Cong a shortcut from constl requirements of Bicameralism and Presentment. o Essential elements of constl design and separation of powers designed to: ensure proper balance of power avoid ill-considered legislature o If power is executive, Cong cannot use, if power is legislative, Cong must use bic. and pres. o Dissent: White Cong. cannot write enough laws to adequately regulate or organize govt.

 By getting rid of the veto-provision, losing a lot of functionality and efficiency Agencies decision doesnt comply with bicameralism Bowsher v Synar (Formalist) o Comptrolller is agent of Congr and is being given executive powers. o Pres. owns the power to oversee, Cong. can only impeach o Violation of separation of powers Mixes execution, interpretation, legislation too closely Reach across boundary into exec branch o Concurrence: If Comptroller is agent of Cong, then he must operate through bicameralism, presentment. o Dissent: Removal of Comptroller satisfies bicameralism/presentment Morrison v Olson (Functionalist/Realist) o Cong can embed an official w/in executive that is appointed by courts by restricting terms of dismissal to good cause or impeachment o Congress not actively supervising and executive retains power although modified o This does not pose a danger to usurpation. Satisfies a balancing test. o Dissent: Scalia (Formalist) Pres constly assigned duties include complete control over their execution not subject to modification And being held resp. by people not independent counsel Majority gave no content to the balancing test Individual Rights - Equal Protection o Slavery Dred Scott (Originalist)

 Negroes were not properly considered federal citizens at the time of the founding. Otherwise there would be huge inconsistency in our laws Fed govt is constly bound to protect states rights to it Unwisely assumed it could resolve a divisive political issue by taking it out of politics State v. Mann Slavery is tended for profit of master o Therefore, only one way to impose this relationship uncontrolled authority of body of one over the other Frederick Douglass: Every man has a right for interpretation and convince the others about my interpretation o Reconstruction and Retreat United States went from plural to singular. Instead of Const as protection from Fed govt, it was the basis for thee assertion of Fed power to protect individuals from states 13th Amend Slavery shall not exist within US 14th Amend all persons are citizens (2 citizenships state and federal) abridge privileges and immunities deprive without due process equal protection of the law applies only to state and local. (EPC is same under 5th amend for Fed. Adarand) Plessy v Ferguson Laws cant change sociality/ attitudes Equality means symmetrical legal treatment Segregation does not imply inferiority 3 tiers of rights: social, civil, political o Social can be modified within reasonable exercise of police power Dissent: o Law affects attitudes. o Govt should be colorblind and supports no caste system o Brown I Public education unique very important state function

 Where a state has undertaken to provide it, is a right which must be made available on equal terms Segregation generates feeling of inferiority Separate facilities are inherently unequal Justifications and Explanations Brown conference and memoranda by Justices Douglas and Jackson, plus William Rehnquist memorandum to Justice Jackson Brown II Held: Solution was to remand o Balance local conditions with new judicial holding o Do it in all deliberate speed o Local courts in best place to judge local conditions Jackson disagrees w/ solution of remanding to lower courts o Puts lower courts in undue pressure of local conditions o Provides no standards o Puts courts in improper regulatory position Post Brown 54 71 Expansion o A right to attend an integrated school and for districts to effectuate a transition o Swann Remedy depends on underlying intentl discrimination which is the constl harm (What is the trigger for applying desegregation? Must be in policy, not environment) At some point schools will be unitary, then courts will sign-off the schools responsibility and leave the field 71 95 Contraction o No inter-district relief o No pro-active Milliken methods of integration o Equal Protection Methodology Guarantee of equal laws: plaintiff complains govt has drawn a line b/w groups in an impermissible place Principles of Equal Protection Qualifications unrelated to contribution/merits

Legal distinctions not based in choice/responses History of discrimination which continues Involves stereotypes Based on immutable characterstics The Means: How has the govt defined the group? Immutable Characteristics gender, race very suspect/ Facially Neutral The Ends: What is the goal the govt is pursuing? Legitimate state purpose The Nexus: Do means justify the ends? Rational Elevated o Triggers: Heightened Scrutiny o Triggers: Race/gender-specific classifications with discriminatory purpose, not impact Rational Basis Classification rationally related to a legitimate govt objective that transcends harm to the disfavored class o Institutional Competence- Is the Ct positioned to judge? o Actual purpose? Ct strongly presumes st legis. act within their power and generally doesnt probe intent Possible Disqualifications o No animus - Romer v Evans o Over/under-inclusion o Arbitrariness o Irrational Fears - City of Cleburne- Zoning ordinance permitted most structures but denied to mentally retarded o Administrative convenience Heightened Scrutiny Facial racial classifications subject to heightened scrutiny and must be necessary (narrowly tailored) to accomplish permissible state objective (compelling). o No: invidious forms of racial discrimination o Probably not: Affirmative Action o Probably yes: Diversity (military, education)

o Yes: natl security and remedy Rationale for heightened scrutiny o harms unpopular groups/reward own race o based on erroneous stereotypes and perpetuates them o even if legitimate, perpetuates division and creates badges of inferiority o denies person treatment as individual Strauder v West Virginia o W.VA statute limited jury service to white males. o The right to exemption from unfriendly legislation against them bc of color Korematsu v US o Pres. authorized military confine Japanese in Assembly centers o Racial classifications are always suspect subject to rigid scrutiny Discriminatory laws are in compelling circumstances if narrowly tailored Natl security qualifies as compelling o Deferral to discretion/competence of military o Dissent: Courts have greatest responsibility to protect disadvantaged in emergency Fails mere rational review (overinclusive) Validates the principle of discrimination Loving v Virginia o Miscegenation statutes adopted by Virginia to prevent marriages between persons solely on basis of racial classification o Equal application of racial classifications still subject to heightened scrutiny must be for o Purpose of 14th was to eliminate arbitrary and invidious forms of discrimination Facially Neutral: Discriminatory purpose versus discriminatory intent Two competing conceptions of EPC o Background Inequality/ Caste System Disc. real and pervasive Neutral policy can compound problem o Majority (Govts goal is colorblind)

 Treat people as individuals Race treatment is over/under inclusive Calls into question too many policies Discriminatory administration of neutral statutes o Yick Wo v Hopkins. An administration so directed against a class of persons as to warrant racist conclusion amounts to a denial of EqPro Washington v Davis o Black applicants not passing tests in same numbers as whites for police force o A law is not unconstl solely because it has a racially disproportionate impact Must show discriminatory intent and discrimination as the reason between those who pass and dont pass o Heightened not triggered, therefore a reasonable relationship between the test and training school performance satisfies rational basis o Dissent: unrealistic to require victims to uncover the intent. If a disproportion is dramatic, it doesnt matter if it was intended or not intended. It should be reviewed Treating two things that are significantly different the same amounts to the same thing as treating two things that are the same different McCleskey v Kemp o Black man claimed that GAs capital sentencing scheme was administered in racially discriminatory manner o P has burden of proving the existence of purposeful discrimination P offered statistical evidence of effects o Mass v Feeny: requires because of rather than in spite of discriminatory purpose. Enacted bc of an anticipated racially discriminatory effect o P claims that discretion allowed decision makers is unconstl bc of the proven bias. However,

discretion is fundamental to criminal justice system o Dissent: Review GA criminal justice system shows history of differential treatment. Discretion has lead to racially motivated decisions Abdicating judicial responsibility in face of racial discrimination Modern Application: Affirmative action Review for racial classifications designed for benefit of minorities o Maj. believes strict (no affirmative action) Compelling: remediation, natl security, diversity rationale (higher educat) Not using any racial classifications is the ultimate goal. Ct encourages other methods o Intermediate Reasonable means to eradicate the effects and prevent perpetuation Do not have to reach compelling o Applying strict scrutiny loosely When race is one of many factors, higher edu./voting districts Adarand Constructors v Pena o Race-based presumptions used in subcontractor contracting violates EPC. Ctapp used intermediate o 3 propositions: Skepticism (for racial classifications), consistency (standard of review is same for black and white), congruence (Fed = state) o All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by reviewing court under strict scrutiny o Affirmative action can exacerbate racial tension o Concurrence: Scalia - no creditor/debtor race Thomas: govt cant make us equal. Affirmative action undermines moral basis of EPC o Dissent:

 No const./moral equivalence b/w laws that perpetuate caste system and those that seek to eradicate it. One fosters equality Standards of review sacrifice common sense view of a situation We have not achieved unitary status Higher education Grutter v Bollinger o Use of race as a factor in admission to U of Mich law school. Bakke Diversity is a compelling state interest. o To be narrowly tailored- race as a plus factor is OK. Racial balancing with numerical weights is not OK. Requires serious consideration of raceneutral alternatives o Special deference given to higher education for developing leaders. o Sunset provisions would be nice o Dissent: Critical mass is better name for racial balancing and nothing special abt university to ensure it has critical mass compared to primary school Deference to school doesnt provide motivation to use race-neutral methods o Thomas: Doesnt solve stigma problem originally announced in Brown, elite law school is not compelling state interest Gatz v Bollinger 20 point addition to minorities applicants made race a decisive factor in minimally qualified o Mechanistic approach is not narrowly tailored Parents Involved v Seattle School Dist o Parents sued school district over student assignment plan that relied on racial classification to allocate slots in oversubscribed high schools o No remediation or discriminatory intent o Did not decide whether diversity is compelling o Narrowly tailored must have a more than minimal impact

 Casts doubt on the use of racial classification if not for a significant goal How to Use Brown: o Roberts a colorblind govt is the goal. EQP protects people not groups. Must stop using racial discrimination at some point o Thomas Segregationists also asked for deference to locals. De jure segregation implies inferiority. De facto does not. o Kennedy middle ground of enduring hope race will not matter, but aware that it still does Const. doesnt require us to ignore de facto segregation o Stevens: Majority forgets that discrimination generally operates one way. So equal protection is not designed to protect whites o Breyer no castes is the goal. So govt can take positive means to achieve that Deference owed to locals: reasonable response to complicated situations Const. has always been interpreted to allow for positive means in the area of education o Gender: Road to Intermediate Scrutiny (Stereotypes and equality) 14th amend. Not intended to protect gender and other peoples. Society has evolved new roles for men/women o Extend race protections to gender Intermediate v Strict Important government objectives (intermediate) v. compelling government objectives (strict) substantially related (intermediate) v. narrowly tailored (strict) Substantially related means: NO: Artificial constraints, Rely on overbroad generalizations, Create legal social economic inferiority, Denigrate other sex YES: Physical differences are enduring, Promote equal opportunity, Compensate for econ disability, Promote full development capacity Bradwell v Illinois

 Myra Bradwell asserted her right to a license to practice law by virtue of her citizen. Separate spheres/family structure ideology allowed Illinois to prohibit women from practicing law. Admission to the bar is not protected by EPC. Reed v Reed The Idaho Probate Code specified that "males must be preferred to females" in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son's estate Gender trigger EPC but only rational basis o Therefore, policies that distinguish b/w men and women based on stereotypes are arbitrary o Administrative convenience not compelling purpose Especially based on certain gender role ideologies Frontiero v Richardson Benefits given by the United States military to the family of service members cannot be given out differently because of gender. Classification of gender subject to close scrutiny Gender classifications are subject bc history of paternalism which contradicts current cultural thinking Gender is an immutable characteristic o Qualifications should be based on relevant characteristic not arbitrary decision Person should have some choice in accepting the legal burdens Craig v Boren An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18 Intermediate scrutiny: must serve an important government objective and be substantially related to the achievement of such objective. o Important purpose: highway safety = Yes

o Substantially related: sex as an accurate proxy for the regulation of drinking and driving = No Also, over-inclusive (the sins of the few on the many) and better alternatives exist (not effective law) Dissent: Rational basis is appropriate for gender. Intermediate scrutiny is unclear and allows for too much judicial discretion Heightened Scrutiny of Gender Classifications Archaic and Overbroad Generalizations vs Real Differences Califano v Goldfarb - A widower denied social security survivor benefits after death of his wife. Struck down law that perpetuated a traditional notion of womens dependence on men Califano v Webster - A female wage earner could exclude from the computation of her average monthly wage three more lower earning years than a similarly situated male wage earner for SS benefits. Upheld law bc it was designed to protect from history of discrimination US v Virginia Struck down the VMIs long-standing male-only admission policy bc VMI failed to show "exceedingly persuasive justification" for its policy and VWIL was not an acceptable alternative Citizen soldiers is important govt objective Gender discrimination is not substantially related o Does not depend on the exclusion of women and moreover it should be pursued by including women too o Adversative approach is not entirely exclusive to men. Some woman could participate and should not be denied it Remedy: Doesnt fix Constl violation. The woman denied opportunity to go to VMI and VWIL is not equivalent Dissent: Rehnquist - exceedingly persuasive imprecise formulation. Exclusion not a EPC violation automatically. Virginia should have made genuine effort to devote comparable public resources to a facility for women.

 Scalia: (Negative Originalism) o Not intermediate scrutiny. This looks more like strict scrutiny o Majority embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society's lawtrained elite) into our Basic Law Real Differences and Formal Equality Benign Gender Classifications Sex Discrimination Law o Sexual Orientation Hybrid substantive due process and equal protection depends on how you frame the question Due process: Behavior, Desires, Relationships Equal Protection: Immutability (not a choice to be gay), species of gender discrimination, history of discrimin. Bowers v Hardwick Const does not confer a fundl rt to engage in sodomy o Not deeply rooted in or implicit in liberty o Against Western tradition Dissent: The rt is not to engage in the specific act of sodomy, it is the broader right of priacy and to engage in consensual relations that explore/define identity Romer v Evans Amendment to CO Constitution prohibits all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. Ratl basis o Amend. is motivated by animus o Classification bears no rational relationship to important legitimate end o Over-inclusive identifies a single trait and denies protection across board (too narrow => too broad) Overarching principle: govt must remain open on impartial terms to all who seek its assistance Dissent: o Homosexuality activity is not a protected right

o Majoritys animus reasoning is their personal, moral judgment of homosexuality and imposed it on the state o Moral disapproval of an act is different than animus toward a class Strict Scrutiny Lawrence v Texas TX statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional. OVERRULES Bowers bc Bowers failed to recognize the right at stake and construed the right too narrowly o A core liberty exists for self-realization o Govt is taking control of personal relationships, not just conduct o EPC protects similar personal decisions: marriage, procreation, contraception, family relationships, child rearing, education The trend of history is away from condemning nonprocreative acts History and tradition are the starting point, but not the ending power of substantive DPC inquiry Dissent: Sexual Liberty and Substantive Due Process o Same Sex Marriage Meaning of Romer Targeted Laws Goodridge v Department of Public Health - Fundamental Rights o Privileges and Immunities Clause Slaughter-House (Originalist) Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. When trying to understand the 14th amend. look to the pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race

 A distinction between citizenship of US and of a state; US citizenship guarantees protection by the government right to acquire and possess property It was not the purpose of the 14th amend to transfer to the Fed govt the security and protection of those rights Bill of Righst is not privileges and immunities thus not applicable to the states Dissent: 14th amend protects the citizens of the United States against the deprivation of their common rights by the States o Privileges and immunities designated are those which of right belong to the citizens of all free governments o Incorporation Debate (overturning Slaughter w/ the due process) Black total incorporation of Bill of Rights against the state bc this prevents judicial discretion in selecting which Bill of Rights to apply Frankfurter no total incorporation bc judges are bound to move within the limits of accepted notions of justice. Duncan v Louisiana held the sixth amendment right to jury trial applicable to the states via 14 amend. Fundamental principles of liberty and justice which lie at the base of all our civil and political institutions if a civilized system could be imagined that would not accord the particular protection Since Duncan only 2nd, 3rd, 5th (grand jury), and 7th amendment not incorporated o Substantive Due Process Lochner Era: Changing the procedural due process interpretation to substantive. Objection to Sub DPC Judicial activism: Cts are interfering in the realm of policymaking situated in the legislature and should defer to legislature rather than monitor Cts are vindicating their own personal conceptions (laissez-faire, homosexuality) Lochner v New York Law, which prohibited bakery employees from working for more than sixty hours per week or ten hours per day,

interferes with the right of contract between employer and employee Ct decided that this was not a legitimate exercise of police power bc it was an unreasonable interference with individual rts (freedom of contract) o Mere assertions that the subject relates to the public health does not necessarily render the enactment valid o Freedom of contract principle came from the notion of laissez faire Dissent: Harlan Whether or not this be wise legislature is not the province of the court. It has enough evidence to make rational connection and is open for debate Dissent Holmes based on an economic theory a large part of the country does not entertain o Const does not intend to embody a economic or social Darwinist theory. If so, it would institutionalize inequality and power disparities West Coast Hotel Co v Parrish - freedom of contract does not exist. Not fundl right Carolene Products starting point is assumption that state legislation acted rationally unless strong evidence proving otherwise Lee Optical the law need not be in every respect legally consistent w/ its aims to be constl. Not in the game of 2 ndguessing legisl/ judgments Ferguson there was a time DPC was used to strike down unreasonable, unwise or incompatible with economic theory. This doctrine was discarded. Ferguson almost culminates in no inquiry into rationality of means/ends. o Fundamental Rights/Equal Protection Statutory classification which affect fundamental rights will be held to deny equal protection unless justified by a compelling govt interest *Note: take into consideration the political leanings of the court after Marshall, Brennan the court was much less interested in expanding/channeling the spirit of the Great Society/Civil Rts Debate What rts are fundamental? When can they be abridged?

 Travel - Compelling-state-interest test triggered by any classification which serves to penalize the exercise of that right Shapiro v Thompson o Statute denies welfare assistance to residents who have not resided within their jurisdictions for at least one year. o Classifies indistinguishable needy families by residency. o Classification interferes with fundl rt (to travel b/w states) and therefore triggers strict scrutiny standard (doing elevated ratl review) Impermissible state purposes: inhibiting migration, save state money, administrative convenience o Setting out bases for judicial scrutiny for public benefits o Dissent: Rt to travel is not denied, only impacts decision making. One-year requirement is rational. o Court is just picking fundl rts based on its own discretion Saenz v Roe - reaffirms Shapiro but on different grounds that citizens should be treated like other citizens of the state Welfare State given ratl basis leeway in providing welfare benefits but once provided should not deny suspect classes it Dandridge v Williams - in the area of economic/social welfare, a state does not vilate EPC bc classification are imperfect This cuts Shapiro back from trying to implement stricter scrutiny for welfare and rational basis review prevailed for welfare Education not a fundl rt but education always has unique space. Ratl basis review San Antonio v Rodriguez o Poor families residing in school districts having low property tax base challenged reliance by Texas school-financing system on local property taxation o Education is not implicit/explicitly a rt in the Const o Even for fundl rts there is no guarantee for most effective free speech

o By accepting education as fundl, no limits to how far fundl rts can be extended No line to determine when it has been adequately provided o Taxation schemes are inherently/unavoidably discriminatory so they do not create suspect classes bc we give them less rigorous review o Dissent: Agree that does not qualify for strict but fails ratl bc means chosen are arbitrary and inappropriate o Marshall: Discrete categories for fundl rts defeats the purpose of the Cts decisions, eg, the rt of procreation The task in every case should be to determine the extent to which constly guaranteed rts depend on other non-constl interest Plyler v Doe (Realist) o Illegal alien mexican children in Texas sought relief against exclusion from public schools o Strict Scrutiny: Undocumented aliens are not suspect class; education not a fundl rt But law imposes legal burden on characteristic children have no control Education is not a fundl rt but it is fundl to society o Fails ratl basis by imposing penalties on innocent children and creating an underclass of citizens o Dissent: Quasi-suspect-class, quasi-fundamentalrights analysis, the Court spins out a theory custom-tailored EPC does not deny state to classify based on factors which a person doesnt have control or choice. Ex: mentally ill v healthy Voting Development: o Voting is fundamental rt => EPC says it should be given to all => All votes count the same

o Voting is integral in expressing pol. interest. Therefore all votes should be identical to be guarantee that intrests are effectively expressed Voting schemes can negate identical voting acting and completely submerge their expression Harper v Virginia State Board of Ed o Virginia's $1.50 poll tax invalid by making wealth classification a electoral standard o Rt to vote in state elections is implicit. Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with EPC o Notions of what constitute equal protection change, we are not bound by the beliefs of tradition o Dissent: Voting poll tax is not inherently invidious form of discrimination and has a rational basis o Using Lochner era natural law type reasoning Kramer v Union Free School District o New York statute limiting franchise in certain school district elections to property owners/parents o Close scrutiny necessary because voting is the foundation of our representative society o Limitation of voting to the one group is not sufficiently precise o Dissent: Passes rational basis. No reason to impose strict bc no suspect classification or constitutionally protected rt infringement Dilution Reynolds v Sims (One man, one vote) o Systems of apportionment in six states were held invalid bc they were not based on population o Strict scrutiny applies: Voting is fundamental rt (DPC) and EPC guarantees the opportunity for equal participation Dilution: Constl violation if population is submerged as the controlling consideration in the apportionment of seats o Dissent: Harlan

 EPC does not limit the power of the States to apportion their legislature States have many rational bases for not apportioning only by population o Stewart: this imposes one constl conception of the voting rt permanently on the nation City of Mobile v Bolden o Black citizens of Mobile challenged the constitutionality of city's at-large method of electing its commissioners. Winner take all system submerges minorities voice o Although disparate outcome, no proof that voting scheme was operated as a discriminatory device (similar to Washington v Davis) o EPC does not require proportional representation Reynolds requires equal numerical weight to individual not equal representation to groups o Dissent: Marshall Reynolds means equal effective voice, not numeral accting In bloc systems, the smaller bloc always loses which defeats the purpose of equal representation o Modern Substantive Due Process Right to reproduction Skinner v Oklahoma (Right to Offspring) o Oklahoma's Habitual Criminal Sterilization Act infringes on the right to have offspring o Marriage and procreation are fundamental to humankind o Strict scrutiny in a reproduction laws is essential bc in evil/reckless hands it can eliminate weak minority o Guaranty of equal protection of the laws is a pledge of the protection of equal laws crimes of larceny and embezzlement are only different in their penalty o Concurrence: Not EPC problem but a procedural due process. No chance to show he does not have inheritable traits Right to privacy

 Griswold v Conneticut o Connecticut law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy o We do not sit as a super-legislature. (We need a Constl basis for decisions) o Douglas: Penumbra and emanations Express rts depend on peripheral rts Freedom of Speech = freedom association Various guarantees create zones of privacy: (1st) conscience & (3rd, 4th, 5th) spatial o Critique: A const that explicity protects some rts and not others, suggests that it does not mean to protect those. o Concurrence: Goldburg Summum Mallum Language and history of 9th amend invites a broad reading of 14th 9th amend tells us there is more to fundl rts than the explicit ones (bill of rights) o Critique: 9th amend doesnt solve problem of revealing the unknown rights retained o Concurrence: Harlan DPC stands on it own bottom, not penumbras from BoR.. DPC protections are developed over the course of the Cts decisions that balance liberty and demands of organized society o Dissent: Govt has a right to invade privacy unless prohibited by some specific constitutional provision Judges will use their their personal and private notions to decide fundamental and traditions Roe v Wade o TX statute prohibits abortion except to save life of mother.

o Rt of Privacy established by case law and is in the 14th or 9th. o Govt has compelling interest in the life of the women and potential life Const does not define a fetus as a person Start of life is unknown and TX may not override womans rts w/ their conception Govt interest becomes compelling at viability o Trimester system graduates the state interest and womens privacy concern Ct switches b/w originalism in determining person but not for finding rt of privacy o Concurrence: Douglas the rts of liberty Autonomous control of development of ones interest, personality, intellect Freedom of choice of basic decisions: marriage, procreation, education Freedom of bodily control o Dissent: Announces a new rt w/out any reasoning or authority, merely cites relevant privacy cases and feels it is in the 14th/9th amend. Offers no constl methodology This is Lochner if privacy means the freedom from unwanted regulation of consensual transactions Debate over abortion is proof enough that it is not a fundl rt Planned Parenthood v Casey o Abortion clinics and physician challenged the Pennsylvania abortion statute o Abortion comes from DPC (substantive component) Right of the woman to choose, state cannot place undue burden in the way destiny of the woman must be shaped to a large extent on her own conception o Stare decisis Not proven unworkable, people have relied by organizing relations and availability of it

 Factual underpinnings havent changed need for principled action shouldnt overrule watershed cases w/o compelling reason o Undue burden (abandons Roes trimester system) Look at purpose or effect of obstacle on womans decision State interest in life is legit at every stage Health/safety regulation are legit Womans choice remains touchstone until viability After viability: exception for womens health. A complete ban might be OK o Concurrence: Blackmun Two violations Bodily integrity and decision about reproduction and family EPC triggered bc women it enforces a traditional conception on women o Concurrence: Stevens - Must balance state interest in life with womans liberty States interest must be secular which can be justified o Dissent: Roe not correct and describes a fundl rt that doesnt exist. Unlike marriage, procreation, and contraception, abortion involves the purposeful termination of a potential life Emerging awareness or societal change does not create a fundl rt o Stare Decisis analysis West Coast and Brown, Court acknowledged and corrected an error Gonzalez v Carhart o Partial-birth Abortion Act Ban sustained o Focuses on Caseys premise that govt has a legit interest in fetal life and State may create mechanisms to educate/discourage abortion o Casey didnt eliminate need for moral arguments in order to balance life v womens choice Accepts fetus is a living organism (Moral)

o Not undue burden to eliminate one kind of D&E procedure; no constl rt to all forms of abortion State has interest in the dignity of life o Only using ratl basis review bc in the face of uncertainty and disagreement defer to legis Backing off strict scrutiny o Dissent: Not rational - banning just one form (the less safe one) of D&E doesnt accomplish anything. Not true to the spirit of earlier decisions Right to die Cruzan Guardians of patient in persistent vegetative state sought judicial sanction to terminate life support Assume a constly protected liberty interest in refusing unwanted medical treatment (freedom from invasion) o Common law has pervasive interest in protecting bodily integrity bodily integrity has always been considered a fundl rt to be protected State has interest in the preservation of human life o States procedural safeguards to protect against abuses for a surrogate exercising anothers rt to freedom from bodily invasion -OK Concurrence: Scalia no business in substantive DPC o suicide and the like are not constitutional rts. o Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me Dissent: Blakmun States abstract interest should not outweigh a concrete interest of a person Stevens- This debate is over the definition of life. It is not within the province of secular government to define life. Washington v Glucksburg statute banning assisted suicide violated due process clause New method of fundl rt review o Deeply rooted in history/tradition and implicit in ordered liberty

 Not fundl rt - traditionally a crime to commit suicide o A careful description of the rt Rt of personal autonomy does not warrant the sweeping conclusion that all personal decisions are so protected Casey used broad language but now interpreted merely to mean rt to choose an abortion; likewise Cruzan announces a rt to refuse medical treatment Washington's ban on assisted suicide was rational: preservation of life, health, protecting vulnerable groups Concurrence: Stevens states interest is only preventing abuse, not abstract preservation of life Souter: Put this back into procedural DPC. - The Right to Bear Arms (Orginalism) o District of Columbia v. Heller Operative Clause Right of the people exercised individually by all people Keep and Bear Arms (Weapons) to carry; not idiomatic, eg, to fill and kick the bucket A pre-exisiting rt understood in context of time to be natural rt to resistance and self-preservation Prefatory clause Well-regulated militia generally refers to all ablebodied men, not a militia but the militia Security of a Free state refers to the US state not particular state Prefatory does not limit or expand the scope of the operative clause. The threat of the new govt to destroy the militia was the reason to codify the rt but it doesnt limit it to that use 2nd amend doesnt guarantee the rt to use a gun in an org. that Congress controls Court cannot declare the 2nd amend extinct o Dissent of Justice Stevens 2nd guarantee arms for nonmilitary use? Miller we held that 2nd doesnt curtail Cong from regulating nonmilitary use o United States v. Miller (Supp.)

Congressional Bases for Exercising Power - Commerce o regulate states as market actors o general application, eg, anti discrimination applies to firms and states - 14.5 o expand protection to rts/liberties o makes states subject to suits for dmages (garret) - Spending power o Can use power to induce st legislatures as an offer they cant refuse o Spending and policy goal must be related Ex highway regulation for highway money - Treaty o Expand enumerated power? Yes o Override bans? NO (tenth amendment is not prohibitory) Perspectives on Determining Federalism Boundaries Constl Structure A) Enumerated / 10th Amend. ( A line exists) Aggressive B) Brevity / Flexibility ( No true line exists) Passive A) Limits/ Best intention ( Controls expediency) B) Problem solving (Powers always exist to deal with problem) Instl Legitimacy A) Principles (Courts have best position) B) Democratic (Representative govt is better) Instl Competence A) Principles (Courts decde upon principle, not pragmatically B) Legislature (Better at gathering information, closer to actual problem) Post Brown Brown 1963 Gloss 1 way transfer NO Griffen shutdown all public schools NO 1968 Green freedom of choice NO *** These cases lead to a right to attend an integrated school and for districts to effectuate a transition 1971 Swan Court orders bussing plan and drawing school zones

- Remedy depends on underlying intenl discrimination which is the constl harm (What is the trigger for applying desegregation? Must be in policy, not environment) - Schools need not be proportional with district population - At some point schools will be unitary - Then courts will sign-off the schools responsibility and leave the field 1977 Milliken I Court lacks power to impose interdistrict remedies one districts violation doesnt mean it is cause to use other district to remedy it 1979 Milliken II orderd remedial education and some years in integrated school this partly a return to separate but equal 1998 Missouri v Jenkins restricts Milliken II remedies Originalism - enforcing norms derived from the original meaning of the constitutional text o Hard: intent of framers or contemporary public meaning o Soft: not for particular answers but to get a sense of the general purpose and aspirations of Const. - Originalism becomes radicalism as society accepts more contemporary theories and conservatives then feel obligated to uphold them - Primary concern: Limit judicial discretion - Pro: o At least we know what we are looking for o If courts can change the meaning, they will to their own interpretations o Ensures the credibility of SupC by striking down laws for consistent reasons - Con o Whose intent is most important? Doesnt clear up the debate really o Inevitably must update the meaning to confront new challenges o Always creatively constructing the past. So just as much of a moving target - Nonorginalists o Natural Law const. didnt codify everything Natural law is too vague; can justify anything o Moral arguments make the system fair and fit it to the Const framework assumes there is a correct way of doing it. Cts are not necessarily the best ones to do it o Tradition history adds an important gloss on the Const

 Yesterdays majority controls today; perpetuates the same system for good or bad o Common law Const law is a common law process that builds over time Widely shared values are also vague; legis reflects it better o Representative-reinforcement Majority rule is the core but the tricky task is to protect the minority Fundamental Interests and the Equal Protection Clause 3 models of equal protection analysis 1) Classification based on race and other suspect criteria a. Strict scrutiny review 2) Classification in the economic and social realm that do not involve suspect criteria a. Highly deferential rational basis review 1) Fundamentality of the interest that is disturbed a. Const requirements differ on the state depending on the fundamentality of the rt at stake or service provided i. Strict Rational b. Force of the constraints increase as the importance of the thing increases i. Negative rts more important than positive rt ii. No constl duty to subsidize an activity merely bc it is constly protected, eg, abortion iii. Welfare < Education < Travel < Voting c. Const constrain the use of wealth as a classification system