I.

Outline of the Curriculum

a. Focus on 3 sets of things
i. Respective powers of state, federal, and local governments – structures in here in the body of
the constitution
ii. Liberties individuals can assert against these branches, protect against intervention by the
governments – bill of rights
iii. Issues of equality among members of the American polity
b. Opening questions
i. Who has the right to decide an issue among various government actors?
ii. How should Courts reason on substantive issues
1. Text
2. History
3. Foundational Commitment
4. Contemporary Practice

II. Opening Thoughts on Examining Hypotheticals for Constitutionality

a. Structure/Power Analysis – Does the Federal Government have the power to promulgate the statute
according to the body of the Constitution?
i. Federal government is one of enumerated powers arising from the enumeration of delegated
powers and the tenth amendment which, in reserving to the states powers not delegated to the
federal government, provides an implicit limit.
ii. Text seem to point to extra-textual powers
1. Necessary and Proper Clause
2. 9th Amendment other powers retained
b. Substantive Analysis – Does the statute infringe upon the external limits in the Bill of Rights?
i. Due process (substantive or procedural)
ii. 1st Amendment
iii. 5th Amendment
iv. 8th Amendment
c. Difference between analysis of state vs. federal statute
i. Federal statute
1. Internal limits, delegation of power
2. External limits, enumerated powers and the bill of rights
3. Extra-textual measures
ii. State statute
1. Less substantive and structural limitations
2. Questions of delegated authority drops out of the analysis
3. Still has to jive with state constitutions
4. 14th Amendment:
a. Equal protection, due process previously applied to federal now as applied to
states
b. Privileges and immunities mirror
c. Incorporation of several amendments to the states
5. 13th Amendment:
a. Applies to both state and federal governments against involuntary servitude
d. Review:
i. Bulk of the Constitution sets out government structures, institutions, ways in which decisions
are made, lists of powers, but does not provide outcomes.

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 ii. Allocates powers to federal government but the 10th Amendment states that the powers not
delegated to the federal government are retained by the states and people.
iii. Example of powers delegated to Congress:
1. Power to tax and spend (Art. 1 Sec 8, Cl. 1)
2. Power to regulate interstate commerce (Art I. Sec. 8 Cl. 3)

III. The Supremacy of the Federal Judiciary over the meaning of the Constitution

Historical Context for Marbury v. Madison:

1776: Declaration of Independence
1777: Articles of Confederation Proposed
1781: Repealed
1787: Constitution Proposed
1788: Washington Elected President
1789: Judiciary Act from Congress
1792: Washington Re-Elected; beginning of international issues like French Revolution
1796: Adams elected
1798: Alien and Sedition Act; leads to very bad blood between federalists and Jeffersonian Republicans
since the Act, intended to stem French revolutionary thought, targets legitimate Jeffersonian opinions.
1799: Jeffersonians Retain Control of State Governments; KY/VA decide their Courts can decide the
constitutionality of a Federal Statute.
1800: Jefferson Elected, pardons all convicted under the sedition act

a. Marbury v. Madison: Constitutional Supremacy over Congressional law and basis of judicial
review; “It is emphatically the province of the judicial department to say what the law is.”
i. Federalist Marshall dealing with a case arising out of a peaceful transition of power from
Federalists to Republicans. Adams appointed Marbury to justice of the peace for DC.
Commission was sealed by the Secretary of States, confirmed by Congress, but never delivered.
Republicans (Madison) refuse a mandate to show cause and refuse to deliver the commission.
Marbury petitioned SCOTUS for a writ of mandamus to compel Madison to deliver the
commission, arguing that the Judiciary Act of 1789 confers SCOTUS the power to compel
action.
1. Does Mr. Marbury have a right to his commission? Yes, act was signed, sealed,
consented by Senate and the commission has a firm basis in statute.
2. Does this right have a remedy in law?
a. Yes, it must. A law mandating/preventing some action that doesn’t compensate it
with a remedy is no law at all.
b. Since the U.S. is a government of laws and not men, the President cannot simply
do what he wants in the name of the public.
c. Not entitled to the political exception: some wrongs, like questionable foreign
policy decisions by Presidents, have political remedies.
3. Does the Court have authority to offer a legal remedy? No
a. Under the Judiciary Act of 1789, SCOTUS can issue a writ of mandamus to
persons holding office. It purports to modify original jurisdiction of the Courts by
providing a remedy in original action.
b. Article III divides authority of the Supreme Court into two categories, original
and appellate jurisdiction. Original jurisdiction given to “ambassadors, consular,
state as a party” and all others are appellate. The words of appellate jurisdiction

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 negate the possibility of modifying original jurisdiction, there are fixed
boundaries.
c. According to Marshall’s interpretation, there is a conflict between the federal
statute (Judiciary Act of 1789) and Article III of the Constitution.
i. SFK – This is not a foregone conclusion. The const. can be read as
describing the minimum jurisdiction subject to changes by congress OR
the Judiciary Act can also be read as not extending to this situation.
d. What result in a conflict between federal statute and text of Constitution?
i. This is a written constitution, adopted by the people and ordained and
established to provide sovereignty in the people. Intended to be a
fundamental and paramount law even against fundamental statutes.
ii. The constitution, as an instrument of the people, is supposed to bind the
legislature and be understood as law, not mere pretense.
4. Note: Judicial review was not a novelty- presupposed by Federalist papers
a. Alien and Sedition Acts were nullified by Kentucky and Virginia- determining
that the A and S Acts were unconstitutional
b. 6 states that responded by saying that statutes can be unconstitutional but it is a
job of the judiciary rather than a state legislature to do so
5. What is the role of the Court in Constitutionality inquiries?
a. Executive branch and legislature bound by the Constitution and the Court is
obliged to give effect to the Constitution.
b. Court has the last word, “emphatically the province of the judiciary to say what
law is.” And maintain a government of laws and of men. To confer this
discretion to the legislature would be to give “the legislature a practical and real
omnipotence”.
i. Cooper v. Aaron: held that states were bound by the Court’s decisions
and had to enforce them even if they disagreed.
ii. Martin v. Hunter’s Lessee: Article III grants US Supreme Court
jurisdiction and authority over state courts on matters involving federal
law despite supposition of Judiciary Act that state courts can make rulings
on constitutionality.

Historical Context for McCulloch v. Maryland:

Articles of Confederation provided a limited set of powers to the Confederation and were considered
inadequate to the challenges of governing a country that had to raise funds, prevent interior and exterior
wars. Every power not “expressly” delegated to the United States is left to the states.
Constitutional Convention delegated broader powers to the Central Government.
1791: Debate of broad authority narrowed on the incorporation of the First Bank of the United
States.
Hamiltonians: More liquidity, faster economy, facilitate interstate commerce, emergency funds
Jeffersonians: Outside authority of Congress since no provision expressly allows for it.
1811: Bank of US charter expires.
1812: War with England exposes difficulties of funding national emergencies without national bank.
Congress authorizes second bank of the United States. Madison signs.
States not happy about the bank for competition with state banks
States start levying massive taxes against the U.S. bank within their states
1817: Monroe elected president

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b. McCulloch v. Maryland: Looking to the structure and text of the Constitution, we can see that the
powers of the Constitution go beyond words. A power is granted by the necessary and proper
clause so long as “let the ends be legitimate and the means are plainly adapted to the end.”
i. Second Bank of the U.S. has an active branch in MD. MD issues taxes on the bank and sues to
collect them from McCulloch, the cashier. McCulloch challenges MD’s ability to do this. Since
many states have taxed banks, the question of the case is the capacity of the states to interferer
with federal banks.
1. Maryland: (1) There is no federal authority to create bank; (2) Even if the bank is
legitimate, taxing by the states is allowed.
ii. Held: Federal Government may establish a bank, and Maryland may not tax it.
1. This is a power Congress has despite no express banking clause in Article I, and the
convention rejected an incorporation clause.
a. Where is sovereign authority located?
i. MD: sovereign authority of the federal government is located in the states
such that the Constitution should be interpreted to maximize the interests
of the states. Constitution as a contract between states and central
government.
ii. Marshall: Constitution is a document emanating from the people, not
a contract among states, and should be read to achieve the ends the
people have installed in it.
iii. Thus, we read the Constitution as defaulting to the interests of the people
as a whole, not to the interests of the states, as a group.
b. Interpretation of text:
i. Despite no banking clause, the Constitution was written in a way to
provide additional powers if needed. It is not a legal code, but “a
constitution we are expounding.”
ii. Drafters removed “Expressly” from the 10th amendment to allow
flexibility in federal powers.
iii. It is a short document meant to be generally understood. Not meant to
exhaustively describe every power, but grant general authority.
iv. It is not within the interest of the people to construe the constitution to
raise challenges to means that would effectuate the people’s interest (such
as creating a bank to help the war effort.)
c. Given this interpretive framework, is there support for incorporation in the
necessary and proper clause (Article II, Sec. 8. Cl. 18)?
i. MD: a bank is not necessary, it is only useful to achieve national defense
for the people. Necessary is meant to imply a restraint on aggressive
federal activity and must only mean absolute necessity
ii. Marshall: Degrees of necessity exist, and since the Const. should be
read to enhance individual interests, usefulness will suffice. The
clause is not a restraint, but a granted power:
1. Appears in the Art. I, Sec. 8 list of powers, not in the Art. I,
Sec. 9 limitations on powers, so it is meant to provide an
expansion.
2. Drafters knew “absolutely” would qualify necessary as
absolutely necessary if that was intended (Art I. Sec. 10).
iii. Limits: “let the ends be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter
and the sprit of the constitution, are constitutional.”
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 1. The degree of necessity is to be determined by Congress in
their role as expositors of policy and law.
2. Court’s inquiry into Constitutionality turns on the logical
connection between the end (the delegated power) and the means
(the Congressional action). The means must be plainly adapted
and the ends must not be mere pretense.
3. For the court to determine the degrees of necessity would be to
overarch its limits, so this belongs to the legislature
4. Courts must inquire into if the enumerated power is a pretext but
not ask about degree of necessity
d. Applied: Congress has determined how necessary a national bank is. Creation of
the bank is useful to carry out the power to tax and spend, and plainly adapted to
reach that legitimate end.
2. Maryland cannot tax the Bank since the power to tax involves the power to destroy
a. State cannot make laws that contradict laws of the U.S.
b. Since the constitution gives the US the power to create and preserve a bank,
allowing the state to tax and destroy the bank is at odds with this Constitutional
grant.
c. MD: taxing does not destroy and it is a right of the states.
d. Marshall: there was no right to tax the U.S. bank because states can tax
people, but not the operations of the supreme laws.
i. Following MD’s argument would allow each state to manipulate and
control the entities of the federal government through the abuse of
taxation (this was already beginning to happen).

Historical Context for Dred Scott v. Sandford:

1787: Northwest Ordinance prohibits slavery over the Northwest Territory; Constitution Adopted
1788: First Congress re-adopts the Northwest Ordinance
1803: Louisiana Purchase raises questions about extending slavery
1808: Federal statute prohibits importation of slaves
1820: Missouri Compromise–Maine as free, Missouri as slave to preserve balance; federal statute
declares slave trade to be piracy, punishable by death
1854: Kansas Nebraska Act repeals the Mason-Dixon line, popular sovereignty allows slavery north
1857: Dred Scott owned by someone who lives in Missouri, where slavery is legal. Owner had
voluntarily brought them to Illinois, free state, and when returned to Missouri he maintained his
liberty. Also brought them throughout areas in the Louisiana Purchase which were free. Again,
when returned maintained liberty. Scott files diversity action in Federal Court claiming that the
owner (Mr. Sanford) has assaulted him and his family (likely a legal fiction to assert a claim of
liberty). If an individual is a slave, then they have no right to resist or object to any bodily
imposition by those who own them. Vis et arms cannot be brought against a master by a slave, so
case turns on whether he is a free citizen or still a slave.

c. Dred Scott v. Sandford: Slaves and former slaves cannot be citizens.

i. Scott is not a citizen and cannot sue in Court, meaning the Court has no jurisdiction
1. Article II, Sec. II diversity jurisdiction is available to “citizens of different states.” Scott
must be a citizen of a state in order to bring the case and confer jurisdiction to the Court.
a. Important to resolve the issue of black citizenship because the Constitution
guarantees several rights to citizenship generally. Art. I, Sec. II  citizens can
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 hold office, Art. IV, Sec. II,  privileges and immunities clause would allow
African Americans to import their citizenship freedoms to slave states (and travel
freely) and produce slave revolts.
b. Issue
i. Jurisdiction- Because you cannot assault a slave because slavery is
inherently assault and slaves are not given rights to bodily integrity, it is
necessary to determine if the Scots are free people
1. Whether even if they are free, they can be considered citizens of a
state under the US Constitution and claim diversity of citizenship
to sue in court
ii. Privileges and immunities clause would allow free African-Americans to
be exempted from discriminatory laws that would give them full rights-
Taney is afraid of a security threat
2. Const. does not define a citizen, but Taney examines historical/original intent to
find blacks excluded
a. Not the province of the Court to construe in light of justice but merely to read the
Const. to find the true intent.
b. “We the people…” seems to embrace the whole human family, but the framers
lived in a world where blacks were slaves, the text of the constitution references
slaves, and slaveholding states wouldn’t have signed the document if they
thought blacks could be citizens. Smart men not hypocrites.
3. Textual support that blacks excluded
a. Art I, Sec. 9: Congress may not prohibit slave trade until 1808, indicates a
separation of races and support of originalist intent for no citizenship.
i. SFK We can read this date as implying that the framers viewed slavery as
potentially evolving to suit different sensibilities. Protecting the
institution for a limited amount of time.
b. Art. IV, Sec. 2: Fugitive slave clause; “no person held in service going into
another state can be made free.”
i. SFK would not apply to Dred Scott. Circumlocution of not using “slave”
evinces embarrassment rather than endorsement of slavery. Art I. census
clause suggests a construction where black people could be free, whole
people.
c. Declaration of Independents obviously did not intend “all men created equal” to
include slaves, or there would have been debate about its use.
d. Naturalization laws define citizens as aliens being free white persons.
e. Militia is composed of available free able bodies, not slaves.
f. Southerners would not have enacted IV, privileges and immunities if slaves
would be considered citizens.
ii. The Missouri Compromise violates the 5th Amendment
1. The 5th Amendment does not allow Congress to make a law that would deprive a state
citizen of his property without due process. Merely transporting your slave into a free
state “could hardly be dignified with the name due process of law.”
2. Plenty of process, early articulation of substantive due process.
iii. Taney’s Jurisprudence:
1. Taney: the role of the Court is to grasp the meaning of the Constitution at the time it was
adopted.
a. Result; imbedding the constitution with racism while conceding that racism may
no longer be the dominant feeling of the country. “All men created equal” would
contemporaneously include the entire human family.
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 2. Counterattacks: (1) originalist intent has no place in the judicial process; (2) he
misapprehended the original intent.
a. Inquiry into originalist intent reads the Constitution with the prolixity of legal
code, something which Marshall dismissed.
i. Constitution should reflect the moral aspirations of the day, and the felt
needs of society
ii. Constitution is designed to endure and allow the country to evolve
towards its best self.
iii. Constitution is ordained by the people and if the people begin to bend
toward justice, the Constitution should follow. Not a contract with states.
b. Original intent was sorely divided over slavery
i. First Congress prohibited slavery in the Northwest Territories.
ii. Const. has provisions that protect slavery for limited duration and does
not mention the word.
iii. Overall, one can interpret the Constitution as handling an unfortunate fact
with a nod toward the impermanence of the institution.
iv. Extrinsic evidence is of limited value; limitation of naturalization to free
persons suggest that those persons could be black; exclusion of black
citizens from militia could be read as recognizing both black and white
citizens. This evidence points to a division between freedom and slave
but does not presuppose that blacks can never be made free.
iv. Amendments:
1. 13th amendment outlaws slavery and Congress can enforce. End of claim that the
Constitution protects slavery.
2. 14th amendment redefines citizenship to include what Taney rejected; “all persons born
in the United States=citizen of the United states”
3. Notion that African Americans are a subordinate class to be viewed outside the body
politic? 15th amendment right to vote should not be abridged under race, color, or
condition of servitude.

IV. The Commerce Clause

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and
with the Indian tribes; Art. I, Sec. 8, Cl. 3
a. Evolution of Interstate Commerce Clause doctrine
i. Gibbons v. Ogden (1824) – extensive interpretation of commerce clause. Congress doesn’t
begin regulating in the name of the commerce clause until the late 19th century.
ii. 1880-1937 – Court adopted narrower construction and invalidated many federal laws as
exceeding the scope of the commerce power.
iii. 1937-1995 – Not one federal law declared unconstitutional as exceeding commerce clause
power.
iv. 1995-2000 – Court in Lopez and Morrison declared two federal laws unconstitutional as
exceeding the scope of commerce clause in order to prevent a national police power.
b. Questions presented
i. What is commerce?
ii. What does “among the several states” mean? Interstate?
iii. Where are external limits? 10th amendment as truism or cap on power with which Court can
declare law unconstitutional.
c. Local autonomy v. national power?

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 i. Benefits of local–
1. States as laboratories for best practice regulation
2. More responsive to local needs, interests, better able to tailor policies and be held
politically accountable
3. Federalist 51: division of government between branches and then federalism creates a
dual security
4. Federalist 45: states as checks on federal government have a large role in operation and
organization of federal government
ii. Benefits of national–
1. Easier for a faction to capture and rule a local government
2. Local autonomy was good when states were diverse but a national uniform identity has
emerged and people have freedom to travel and migrate among the states.
d. Gibbons v. Ogden: Congressional commerce power is plenary, but not limitless; commerce broadly
means intercourse, among states means involving states.
i. New York grants monopoly to Ogden to run his boats between NY and NJ. Gibbons has federal
license to steamboat anywhere along the coast. Ogden sues Gibbons for infringing the
monopoly-seeking injunction to stop him. Ordinarily, the federal license will trump the state,
but Ogden is challenging the constitutionality of federal government to grant Gibbons license to
operate his ship. Does federal gov’t have authority under commerce clause to issue this license?
ii. Marshall:
1. What is “Commerce”?
a. Ogden: not commerce; commerce means buying and selling goods, traffic, barter,
commodities, traveling back and forth is not commerce.
b. Court: commerce includes all phases of business, including navigation and
transport, which was the issue in the case.
2. What is “among the states”?
a. Ogden: Not among the several states; only involves New York
b. Crt: Congress could regulate intrastate commerce if it had an impact on interstate
activities.
c. Necessitates that the Court decide how direct or substantial the effects must be.
3. What are the limits?
a. Congress has complete authority to regulate all commerce among the states.
When acting under its commerce clause authority, Congress can regulate in the
same way as it could if no state government existed.
i. Within federal sphere of power there is still a check: political process,
voting, can ensure wise regulation.
b. Internal commerce of the states that do not affect interstate commerce is
exempt from federal regulation. Internal commerce subject to local control is
the norm where interstate commerce is a small sphere of federal power.
i. Federal statute licensing barbers? No, not interstate, matter of internal
concern
ii. Federal statute prohibiting spousal abuse? Not commerce
iii. But, there is no area of interstate commerce reserved for state control
e. Ogden–1880 Evolution
i. Interstate commerce clause cases dealt with states imposing limitations that had an impact on
interstate commerce.
ii. Just as state in control of their sphere of internal commerce, the federal government has control
over interstate commerce. A particular set of state regulations could not offend interstate
commerce.

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 iii. Paul v. Virginia (1865): since insurance policies are not commerce, state law forbidding out of
state insurance agency from making insurance contracts in the state of Virginia is a proper
exercise of state authority to deal with activities that are neither commerce nor interstate.
iv. Kidd v. Pearson (1888): since manufacture is not commerce, state prohibiting of manufacture
of liquors to be shipped out of state does not offend interstate commerce. This case is an
example of the direct vs indirect test
v. Advent of railroad makes hard distinction between interstate and intrastate commerce less clear.
Everything more interdependent, expansion of the type of commerce that the federal
government has control over. Local police power of the state is undercut.
f. 1887-1973
i. Court narrowly defined the meaning of commerce so as to leave a zone of power to the states.
1. Court held that commerce was one stage of business, distinct from earlier phases such as
mining, manufacturing, or production.
2. Congress could regulate commerce; the others were left for state regulation.
ii. Court restrictively defined among the states as allowing Congress to regulate only when there
was a substantial effect on interstate commerce.
1. In all other areas, regulation was left to the states.
iii. Tenth Amendment reserved a zone of activities to the states and that even federal laws within
the scope of the commerce clause were unconstitutional if they invaded the zone.
1. 10th amendment per the dual federalists.
iv. NB: Court was not consistent in applying these principles.
1. It followed these restrictive interpretations when considering federal economic
regulations (federal antitrust laws, employment regulation statutes).
2. It strayed when they concerned federal morals regulations. (prohibiting lotteries and
regulating sexual behavior.)
g. Post-1880 experimenting with bounds of commerce power
i. Congress begins regulating in the name of interstate commerce, flipping the inquiry.
ii. Interstate Commerce Commission established in 1887.
iii. ICC v. Brimson (1894): Upholding ICC rate regulation and compulsory service processes as a
constitutional application of the commerce power.
iv. In re Debs (1895): Upholding the injunction against the Pullman strike even though affecting
principally intrastate travel (local and noncommercial). This case is an example of the direct
vs indirect test
h. What is commerce?
i. Commerce was to be narrowly defined as one stage of business, separate and distinct from
earlier phases such as mining, manufacturing, and production.
ii. U.S. v. E.C. Knight (1895):
1. American Sugar Company attempts to acquire 98% of market share. Sherman Act of
1890 prohibits combinations in restraint of trade.
a. ASR’s monopoly occurred at the manufacturing stage, which is too distanced
from “commerce” to fall within the Sherman Act. Formalist distinction.
i. Federal law could not be applied because the monopoly was in the
production of sugar, not in its commerce. “Commerce succeeds to
manufacture, and is not a part of it.”
b. Effect on commerce – answering what does “among the states” mean
i. Manufacture’s effect on commerce was only “indirect”.
ii. Direct effects test: in an increasingly interdependent economy, there must
be a distinction between manufacture and commerce, indirect and direct
effects, national and local activities. Commerce clause regulation requires
that there be a direct effect on interstate commerce.
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 2. Concern that federal authority, with the advent of railroad, will completely overtake the
state enclave of authority and displace the local police power.
i. What does “among the states” mean?
i. Requirement that there be a direct effect on interstate commerce.
ii. Shreveport Rate Case (1914):
1. Local railroads manipulating intrastate rates to make interstate rail travel more expensive
than intrastate travel, which has major affect on interstate commerce because forces
railroads to carry cattle out of Galveston instead of Shreveport.
2. Upholds ability of ICC to set intrastate railroad rates because of substantial/direct
impact on interstate commerce.
3. Substantial/direct affects test: Congress can regulate purely intrastate activities
when impose a profound direct effect on interstate commerce. Departure from
formalistic distinction, accepting of practical economic effects of local activity.
Additionally, railroads are agents of interstate commerce and cannot be used to cripple,
retard, or destroy it.
4. But see, A.L.A. Schechter Poultry (1935): federal law regulating poultry handling in
New York City declared unconstitutional based on an insufficient effect on interstate
commerce.
iii. Southern R. Co. v. U.S. (1911): Upheld the imposition of the Federal Safety Compliance Act
on all railroad cars that use interstate tracks. Protecting interstate commerce extends to those
activities, even local, that pose a threat/endanger interstate commerce.
iv. Court interpreted “among the states” as requiring a direct effect on interstate commerce; yet
never formulated a consistent way to distinguish direct from indirect (intrastate railroad rates
have a direct effect on interstate commerce, while regulations designed to limit the shipment of
sick chickens in interstate commerce only have an indirect effect?)
j. Regulation of activities that have an impact at the end of interstate commerce in order to prevent moral
wrongs; should Congress’ motivation matter?
i. Champion v. Ames (1903): Moral (police-like) motivation behind regulation of interstate
commerce is allowed so long as it is a valid regulation of interstate commercial activity.
1. Federal Lottery Act prohibited importing, mailing, or interstate transportation of lottery
tickets. If insurance policies are not commerce, local lottery tickets must similarly be
outside federal purview and reserved to state regulation.
2. Since Congress regulated only interstate traffic of these articles it was not interfering
with state police powers though it was enacting the federal law to rid of the evil of
lotteries, traditionally reserve to states. Perceived as infringing on traditional police role
of states.
3. Inspired Congress to exercise its plenary authority in interstate commerce, and to use
that authority to prevent moral harms reaching local consumption through banning their
traffic in interstate travel.
a. Hippolite Egg (1911): FDA prohibits shipment of foods with adulterants without
labels. Consumption is local, but as a way of preventing local consumption,
Congress can prohibit the shipment of the eggs pursuant to its interstate
commerce power.
b. Hoke v. US (1913): Though Congress could not regulate prostitution per se
(reserved to the states), it could regulate/prohibit the interstate travel of women
(Mann Act) for immoral purposes pursuant to commerce power.
c. Webber v. Freed (1915): “Prize Fight Films”; Upholds federal statute against
importing of prize fights through interstate commerce for their disruptive nature.
d. Goals: Protecting against evils at the local level from their transmission in
interstate commerce.
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 ii. Hammer v. Dagenhart (1918): The motivation must be legitimate and not one that attempts to
exert a moral police power over the states.
1. Congress excludes products of child labor from interstate commerce. We have seen
prohibition on moral grounds in plenty of cases.
2. An act forbidding the interstate commerce of goods made by children regulates
labor, not commerce. Congress cannot require the states to exercise their police
power. How to distinguish from other police cases?
a. Items in previous cases were inherently deleterious whereas these products are
not, just manufactured in a morally bad way. The item transported is not a
“legitimate” end to be regulated. So Congress is attempting to do indirectly what
it cannot do directly (regulate local production/labor laws).
i. Or, conservative Court more willing to defere to morals laws rather than
economic regulations.
b. States support and want child labor undercut by federal provision (inverse of
Champion v. Ames).
c. Motivation of Congress matters–trying to use interstate commerce as a lever to
affect what has taken place before commerce occurs (local production
conditions), and prohibiting goods that are not harmful but just made in a way
deemed wrong.
i. The Court concluded that the 10th amendment reserved control of
activities such as mining, manufacturing, and production to the states.
Even federal laws regulating commerce among the states were
unconstitutional if they sought to control production, which was a
processes to be controlled by states.
d. Court careful not to allow the national government to prohibit transportation of
anything it chooses, which would effectively grant Congress unbounded
authority. Uncomfortable with fed government interfering with state authority on
a matter with the lever of interstate commerce. Control of wages is a peculiarly
local responsibility.
iii. Contrasting Lottery and Child Labor?
1. In both, the federal law prohibited the shipment of a specified item – goods made by
child labor or lottery tickets – in interstate commerce. In both, Congress obviously was
seeking to stop intrastate activities: the use of child labor and gambling in lotteries. Yet,
in the former the Court declared the federal law unconstitutional, whereas in the latter
the Court upheld the federal law.

Review of Commerce Clause Jurisprudence:

1. Within sphere of interstate commerce, so long as activity is commercial and involves two states,
then it is federal supremacy subject to political ramifications. (Ogden).
2. Must be a direct connection to interstate commerce. That an article is intended for interstate
commerce does not make its manufacture part of interstate commerce. Commerce succeeds to
manufacture and is not a part of it; therefore Congress has no power to regulate it. (E.C. Knight).
3. Congress cannot regulate the shipment of non-deleterious objects in interstate commerce to make
federal police powers in enclaves of traditional local concern. (Hamer).

k. Great Depression and Commerce Power Limitations

i. Onset of Great Depression:
1. Stock market drops 80%
2. GNP drops 50%
3. 25,000 banks total, 11,000 fail
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 4. Unemployment went from 3% in 1925 to 25% in 1933
5. Farm prices fell 50%, 5% of farms foreclosed each year
6. States and localities overwhelmed by scale of depression
ii. FDR decides to take bold federal action. Pushes Congress to adopt a series of strong legislation
to put a floor on the falling prices of goods and services. SCOTUS immediately imposes limits.
1. Schechter v. U.S. (1935): what does “among the states” mean?
a. NIRA authorizes president to set minimum wages, health standards for local
chicken slaughter companies. Part of larger legislative scheme to affect hours and
wages and prevent the continuing collapse of prices throughout the economy.
SCOTUS strikes down this piece of NIRA because, though wage setting would
affect people’s incomes and interstate commerce eventually, the connection to
interstate commerce is indirect and the regulation is local primary production, not
commerce.
i. Precedent suggests that the Federal Government may exercise authority
over intrastate commerce when it adversely affects interstate commerce,
but this is not (1) an instrumentality of interstate commerce (like a RR) or
(2) a local commercial activity with a direct effect on interstate
commerce. Sharpening the doctrine.
b. We are not worried about magnitude, but directness of effect
c. Cardozo’s Schechter concurrence- the question of directness is one of
foreseeability (proximate causation) and its degrees- “turns not on the magnitude
of either the cause or the effect, but entirely upon the manner in which the effect
has been brought about”
2. Carter v. Carter Coal (1936): what does commerce mean?
a. Coal industry act tries to set wages and hours. SCOTUS strikes because mining
is not commerce but production, and even though findings support that wages
have a substantial affect the prices at which coal is sold, the effect on interstate
commerce is too indirect to allow for federal regulation.
3. Railroad Retirement Board (1935): what does “among the states” mean?
a. Act requiring railroads to provide pensions is unconstitutional because not for
purpose of interstate commerce but for social welfare. Issue of motivation.
b. Inconsistent with Shreveport, Southern RR; local railroad activity obviously
implicated interstate commerce. Distinguished other cases as concerning the
safety or efficiency of the railroads. Congress could not use its commerce power
to require a pension program for railroad employees because the law was only to
help the social welfare of the worker, remote from any regulation of commerce.
l. Commerce Power Expansion: 1937-1995
i. Three decisions – NLRB v. Jones, U.S. v. Darby, Wickard v. Filburn – overruled the earlier
decisions and expansively defined the scope of Congress’s commerce power. Because of these
decision, from 1937 until 1995 not one federal law was declared unconstitutional as exceeding
the scope of Congress’s commerce power.
ii. NLRB v. Jones & Laughlin Steel Corp. (1937):
1. J&L (10,000 + employees) fire ten workers desiring to unionize. NLRB created to
oversee any unfair labor practices “affecting interstate commerce.” 10 out of 10,000
seems slight and indirect, but labor practices have inspired sit down strikes in factories,
riots, and industrial war. Question is whether or not the NLRB can force the company to
rehire its 10-fired employees pursuant to commerce power.
2. Congress can do what is necessary to protect interstate commerce from the
paralyzing consequences of industrial war.

12
 a. Although this is a small expression, Congress can provide a constructive
mechanism to heal labor relationships lest the Country end up with riots, a
crumbling economy, and an assault on capitalism.
b. Broad formulation of commerce power; the power is plenary and may be exerted
to protect interstate commerce no matter what the source of the dangers which
threaten it.
c. “The fact that the employees here concerned were engaged in production is
not determinative.” The question is simply whether the labor practice has an
effect upon interstate commerce. SCOTUS finds that the firing of ten workers
could cause the remaining union workers to engage in industrial war.
d. Question is one of degree- if there is a “close and substantial relationship”
between the statute and commerce regulated
iii. Movement from direct vs indirect test where degree referred to level of proximate cause to a
substantial effects where degree referred to the size of the effect
1. In Jones & Laughlin, majority begins to make this change
iv. United States v. Darby (1941): Denies that the 10th amendment poses an external limit on the
commerce power, dismissing it as a truism.
1. Fair Labor Standards Act of 1938 sought to regulate hours and wages of employees by
policing products shipped by workers paid low wages. Exact fact pattern of Hammer.
2. Even if goal is to regulate wages, if valid commerce power we do not investigate
motive. Since it is proper for Congress to regulate shipping, it can regulate wages
indirectly as its means to regulating the shipment of goods that were produced by
low wages. This looks at the effects on interstate commerce.
a. 10th amendment has nothing to say about this; all is retained which has not
been surrendered. Since this is an appropriate exercise of commerce power, the
10th amendment is silent. It is a truism.
i. Rejected view that production was left entirely to state regulation via 10th;
congress may control production by regulating shipments in intestate
commerce.
b. Denies that 10th amendment offers an extrinsic question about states’ retaining an
enclave of power. A law is constitutional so long as it is within the scope of
Congress’s power; the 10th amendment would not be used by the judiciary as a
basis for invalidating federal laws.
v. Wickard v. Filburn (1942): the aggregate affect of local activity on interstate commerce
may be used to determine proper exercise of federal regulation pursuant to commerce
clause. High water mark for expansive commerce clause.
1. To keep wheat prices stable, Agricultural Adjustment Act issues wheat quota for all
farms. Farmer Filburn violates quota but contends that it is for personal use and not for
sale. Challenges AAA as an invalid regulation of local activity.
2. The nature of the wheat market demonstrates that wheat production on a single
farm, in aggregate, will have substantial affects on interstate commerce.
a. Filburn grew six tons of wheat over the limit to feed cattle and avoid buying
wheat from the market.
b. Even wheat made to be kept competes with wheat in commerce, and if many
people disobey the quotas, massive effect on prices of wheat. The private
disobedience of one man can thus affect the market by 20%.
c. Rejection of the previously crucial distinctions between commerce and
production, direct and indirect effects on commerce. So long as substantial
aggregate effects on interstate commerce local, production-like activities can
be subject to regulation.
13
 d. Even though Filburn’s wheat only had a negligible impact on interstate
commerce, Congress could regulate his production because cumulatively
homegrown wheat had a substantial effect on interstate commerce.
vi. Review of Changes:
1. What is commerce? No longer did the Court distinguish between commerce and other
stages of business such as mining, manufacturing, and production; instead Congress
could exercise control over al phases of business.
2. What is “among the states”? No longer did the Court distinguish between direct and
indirect effects on interstate commerce; rather, Congress could regulate any activity that
taken cumulatively had an effect on interstate commerce.
3. What are the limits? No longer was the 10th amendment a limit on congressional power;
instead, a federal law would be upheld so long as it was within the scope of Congress’
power.
4. Under the new formulation, Congress could regulate any activity if there was a
substantial effect, in the aggregate, on interstate commerce.
a. Congress could regulate anything under the commerce clause so long as there
was a rational basis for believing that there was an effect, in aggregate, on
commerce.
vii. Katzenbach v. McClung, Heart of Atlanta Motel v. US (1964): Sufficient if Congress can
rationally conclude that regulating a local activity is necessary to protect interstate commerce.
1. Civil Rights Act of 1964 aims to prevent businesses from discriminating against black
customers pursuant to commerce clause power.
2. Ollie’s BBQ serves local patrons, purchases ribs from out of state, substantial portion of
food moves through interstate commerce.
3. Atlanta Motel serves interstate travelers.
4. For both, evidence of substantial adverse impact of segregation on interstate commerce
is unclear and unconvincing. If Ollie’s served blacks, there would be a decrease in the
flow of ribs through interstate commerce. Can Congress enforce integration through
commerce power?
a. Congress must have a “rational basis” on which to find an adverse effect on
commerce of a practice in order to regulate that practice.
b. The Court will defer to Congressional judgment--even without formal findings--
to conclude that regulating the local activity that serves interstate travelers
(Atlanta) or sells interstate products (Ollie’s) is necessary to protect interstate
commerce.
c. Court says Congress is the best body to determine the type and degree of power
that they need to reach legitimate ends. McCulloch, Courts not in the business of
assessing “degrees of necessity.”
viii. New commerce clause question emerges:
1. Whether Congress has a rational basis upon which to conclude that the activity sought to
be regulated will have a substantial affect, in aggregate, on interstate commerce.
a. Perez v. United States (1971): law criminalizing extortionate credit practices
was upheld on commerce power because intrastate loansharking has potential for
aggregate substantial affect on interstate commerce. Particular findings of the
connection not required.
b. U.S. v. Bass (1971): prohibition of firearms traveling in interstate commerce
though possession is local and not commerce is upheld as appropriate exercise of
commerce clause.
c. Hodel v. Virginia Strip Mining (1981): upholds application of strip mining rule
requiring replacement of land stripped notwithstanding the fact that it is local and
14
 production, not interstate commerce. Aggregate action would have substantial
affect.
2. Court has no place for empirical, degrees of necessity, policy decisions. Congress is
more suited as the expositor of policy, preferences, and national prerogatives, and the
Court will defer to this judgment.
m. As the pendulum swings
i. Textual conflict between federalism and the delegation to Congress to regulate interstate
commerce as supplemented by the necessary and proper clause to enact and enforce regulations.
Era Description Example Cases
1880s Congress’ authority in this matter is limited by the practical Ogden, Shreveport
impact on interstate commerce and Congress’ good judgment
Pre- Conceptual distinction between commerce (buying, selling) and E.C. Knight, Shreveport
ND primary activity (manufacturing, mining agriculture). Certain
kinds of primary activities, if they have direct effects on interstate
commerce, move into sphere of federal regulation.
Even in regulating interstate commerce congress cannot seek to Hamer v. Dagenhart
extend its authority into areas outside its national sphere by
leveraging commerce power to exert state police powers.
Post- Court rejects idea that difference between production and NLRB v. JL, NLRB v. Fainblatt
ND commerce is crucial. Local activities of small magnitude can be
regulated for substantial effect on interstate commerce.
Motive to improve production or enact police power behind U.S. v. Darby
th
regulation is irrelevant. 10 amendment a truism.
Whether there is rational basis to find that actions, in aggregate, Wickard v. Filburn
have an impact on the interstate market
1960- To regulate local activity, Congress must have a rational basis on Civil Rights Cases, Perez, Bass,
1995 which to find that the activity will, in aggregate, have adverse Hodel, Maryland v. Wirtz
impacts on interstate commerce.
n. Rehnquist Imposes Limits
i. U.S. v. Lopez (1995): Marks a departure from the traditionally broad deference granted to
Congress. Court strikes down gun possession regulation as outside commerce clause power.
1. Alfonso Lopez is a 12th grader that brings a gun on school property, against the Gun-
Free School Zones Act of 1990- federal crime to possess firearms or ammunition near a
school
2. Congress, acting on a history of liberal commerce clause jurisprudence, and believing
that so long as it has a rational basis to conclude a substantial affecting the aggregate,
decided to regulate gun possession. Gun-Free Schools Act prohibits gun possession
within 1000 feet of a school.
3. Gov’t: we are acting on a rational basis to protect against activity that, in aggregate,
affects interstate commerce (Wickard).
a. Guns on campuses  bad education  bad workers  bad economy. Federal
government spends $230 Billion on education, making that spending less
effective when guns in schools undermine the result.
4. Court strikes down gun possession regulation as outside commerce clause power.
a. Three types of commerce clause regulations:
i. 1) Channels of interstate commerce
1. Darby, Caminetti, Heart of ATL but not here because nothing in
statute requires the interstate transmission of the gun

15
 2. Regulation of thing that is a matter of interstate commerce-
regulation of the use of the thing transported in interstate
commerce
ii. 2) Instrumentalities of interstate commerce
1. Southern RR, Shreveport, not here
2. Prohibiting use of instrumentalities
3. Protection of instrumentalities
iii. 3) Activity that has substantial relation to interstate commerce
1. This is where the greatest commerce clause expansion has
occurred.
2. Precedent had allowed stretched and attenuated connections to
intrastate activities and interstate commerce; proper test requires
an analysis of whether the regulated activity substantially affects
interstate commerce.
3. Is there a connection here?
a. Requires piling of inferences; no findings economic effect
b. Possession of a gun is not an economic activity
c. The affect, if anything, is attenuated and the
connections are not visible to the naked eye.
d. End of deference and political process check; return to the
notion that Article I affirmatively limits Congress’
legislative powers to those that are express or implied in
the Constitution.
b. Federal Government must have limited powers.
i. In a modern interconnected country, almost anything could have an
impact on commerce allowing this logic to give Congress unlimited
police powers over localities (divorce, inheritance, family life).
ii. That cannot be a correct interpretation because it would be inconsistent
with the proposition that…
1. Federal government is one of enumerated, limited powers.
2. There is a constitutional expectation that certain areas of
governance are truly local; enclaves of state power.
c. Creates a distinction where effects of local commercial actions can be
aggregated but local non-commercial actions cannot
i. Degree of directness
ii. Connection to interstate commerce visible to naked eye- unless
Congress made findings pointing to this
iii. Since this is a local non-commercial activity, no aggregation of economic
effects
iv. No congressional findings on point
v. Education is historically a state policy area
d. Breyer Dissent
i. Goes with aggregate effects and upholds the law
ii. Violent crime from guns threatens the educational mission of schools and
the economic value of education
iii. Argues the majority’s opinion runs contrary to precedent like Wickard v.
Filburn and returns to something like the direct-indirect test
iv. Congress could have found a connection between education and
commerce

16
 ii. U.S. v. Morrison (2000): When seeking to regulate non-economic activity, such as violence,
Congress cannot import aggregation principle from New Deal to demonstrate a substantial
affect on interstate commerce so as to construe as within commerce clause power.
1. Facts
a. Morrison accused of rape by Christy Brzonkala under VAWA
b. VAWA 1994- a person who commits a gender-motivated crime of violence is
subject to federal damage action by the victim
c. She tried to prosecute under state law and that didn’t work
d. Body of research that shows that gender-based violence impacts interstate
commerce- data assembled by Congress
2. Taking cue from Court’s suspicion at lack of findings linking local activity to economic
effect, Congress provides substantial findings to support the Violence Against Women
Act. Act provides for private federal cause of action against all persons committing a
crime of violence motivated by gender.
3. Gov’t: Congressional findings of a substantial impact on interstate commerce of violent
crimes against women. Gender based crimes cost the US $3/year, limit traveling in
interstate commerce for fear of attack, “extensive findings” furnishing the link necessary
to allow for regulation by federal government.
4. Unconstitutional because it is a non-economic activity.
a. While there are congressional findings, they speak of extremely attenuated
effects on commerce, which would allow the Commerce Power to inflate federal
regulation of truly local issues. Findings alone are not enough to sustain
legislation
b. Like Lopez, non-economic activities have a default attenuated affect on interstate
commerce. Aggregate substantial affects doctrine cannot sustain the connection.
Commerce clause precedent, even broad (Wickard, Darby) treated regulations of
intrastate activity where that activity is economic in nature.
i. Congress may not regulate noneconomic conduct on the basis that the
conduct’s has an aggregate effect on interstate commerce.
c. Violent crimes are the province of states as a traditional police power.
i. Congress cannot get around this tradition through thorough findings.
ii. At least in areas that the Court regards as traditionally regulated by the
states, Congress cannot regulate noneconomic activity based on a
cumulative effect on interstate commerce..
iii. Subsequent cases evince less than whole-hearted commitment to directness or distinction
between “truly local” / “truly national” activities. In each instance, the Court did not declare the
federal statute unconstitutional, but instead used the restrictive interpretation of the commerce
power as a reason for limiting the scope of the federal laws – to avoid “constitutional doubts”
1. Reno v. Condon (2000): Regulation of sale of information on drivers license is proper
commerce clause regulation because the information is an article of interstate commerce.
Because economic actors and agencies regularly use information, it is therefore an
article.
2. Jones v. U.S. (1999): Arson statute can only apply to homes in active employment in
interstate commerce (business, home office) and not private homes. Read statute that
way because to allow for private arson would make almost any crime potentially federal.
3. Pierce County v. Guillen (2003): sustained a federal statute grantingan evidentiary
privilege against discovery in state court to information gathered by states to produce
reports to the federal government regarding a federal highway safety program.
Discovery of such reports in a state tort suit would make the states less likely to keep and
submit full reports, which would impair federal traffic safety efforts, which would in
17
 turn interfere with the protection of interstate commercial instrumentalities. Isn’t this the
attenuation the Commerce Clause cannot allow?
4. Sabri v. U.S. (2004): upheld a federal criminal prosecution of a Minneapolis real estate
developer for tendering a $5000 bribe to a member of the Minneapolis Community
Development Agency in exchange for regulatory approval of a local hotel, where the
Agency had received federal grants. Is this corruption “truly national” or “truly local”?
5. Solid Waste Case (2001): The migratory bird rule exceeds the scope of the Clean Water
Act. Because of this reading, the Court deemed it unnecessary to reach the constitutional
issue pressed: whether the EPA's interpretation of the CWA exceeded Congress' power
under the Commerce Clause
o. Upholding Federal Laws and Rejecting Commerce Clause Challenges under modern formulation
i. Gonzalez v. Raich (2005): Congress still enjoys deference when the regulation is economic in
nature. Attenuation logic of Wickard also applies when the product is economic in nature.
1. California statute allows for medical marijuana prescribed by a doctor. Named
defendants grow marijuana in backyard with permit, federal government imprisons
pursuant to Controlled Substances Act. CSA federally prohibits manufacture or
possession of biologically active substances which the federal gov has determined is
problematic. Possession of marijuana entirely prohibited. According to Morrison and
Lopez, this would be outside federal purview as a truly local and non-economic
regulation.
2. Constitutional:
a. Marijuana possession and growth is an economic activity that acts within an
established interstate market.
b. The effect on interstate commerce would, in line with Wickard, be in aggregate
substantial and visible to the naked eye. Though one individual involved here in
local manufacture, in aggregate it would undermine harmful drug prohibition.
i. Statutory scheme allowed for any individuals to possess as much as 3
pounds of marijuana. Such amounts, like wheat in Wickard, would affect
interstate commerce by creating a market for marijuana sale.
c. Unlike Lopez/Morrison, this is a broadly economic statute meant to affect
production, distribution, and consumption. Therefore, no strict jurisdictional
nexus required.
d. Substance has potential to enter interstate market, which goes against goals of
CSA
e. Mechanism of suppressing the interstate trade is making it illegal
3. Does not depart from Lopez; intrastate production of a commodity sold in interstate
commerce is economic activity and thus substantial effect can be based on cumulative
impact.
4.
ii. Gonzalez v. Oregon (2006): CSA does not give AG right to prohibit doctors from prescribing
regulated drugs for use in physician-assisted suicide under state law permitting the procedure.
Statutory interpretation.
iii. Gonzalez v. Carhart (2007): Partial Birth Abortion Ban Act prohibiting doctors from providing
such abortions upheld as a proper regulation of the medical industry.
iv. U.S. v. Comstock (2010): If the commerce power allows the federal regulation of child
pornography possession, then the Necessary and Proper clause allows imprisonment of
offenders, and preventing prisons from releasing sexual predators through civil commitment.
1. Federal statute authorized courts to order the indefinite confinement of individuals in the
custody of the BOP who are deemed to be “sexually dangerous.” Earlier, SCOTUS had
approved that such a practice did not violate a liberty interest of the individual. The
18
 question here was whether Congress had the affirmative constitutional authority to
provide for such indefinite detentions? Sexual violence is not an economic activity…
2. Constitutional exercise of necessary and proper clause to enforce an enumerated power –
the commerce clause.
a. Federal government has power, under the necessary and proper clause, to
prescribe the sanctions for the crimes it creates.
3. In order to make the regulation affective, there must be a prison, and in order to make
the prison effective, you prevent the prison from releasing sexual predators into the
environment where states have not had the opportunity to control them. Piling of
inferences it would seem.
a. (1) Necessary and proper clause grants this power
i. “Let the ends be legitimate” (McCulloch). Fed. Gov. can imprison people
affecting interstate commerce since they can regulate interstate
commerce.
ii. Congress has determined that the means is plainly adapted to this
legitimate end.
b. (2) Small, narrow, non-sweeping addition to an established framework of mental
health law.
i. Not usurping state prerogatives, or infringing on traditionally state
activities.
c. (3) Statute looks properly to state interest
i. State autonomy has a role to play.
ii. Supplements state interest, cannot handle these prisoners, like in lottery
cases.
iii. Helping to effectuate state goals
d. (4) Not too attenuated
i. Not too distanced from commerce power; if you can make mail fraud a
crime, you can support federal criminalization of child porn with civil
commitment scheme.
ii. Yes, one link removed, but attenuation turns on the strength of the chain,
not the amount of links in the chain necessary to demonstrate the nexus
between the regulated activity and the Constitutionally valid interstate
commerce expression. (Kennedy).
p. NFIB v. Sebelius (2012): Commerce Clause Interpretation falls
i. F: Affordable Care Act imposed an obligation on every individual who files a tax return to
certify that they are covered by insurance that meets federal minimum standards or pay a tax
that reaches that standard.
1. Healthcare accounts for 17% of the national economy
2. There is a large interrelated national market for healthcare; almost everyone participates
in the healthcare market in some fashion.
3. 60% of uninsured people visit the doctor or a hospital at some point during a given year.
4. About 85% of payments are covered by insurance. The cost to the healthcare market of a
large pool of uninsured Americans is $43 billion in unreimbursed coverage.
5. Federal regulations, norms, state regulations prohibit hospitals from turning those away
who cannot pay. So hospitals provide unreimbursed care, the costs of which are passed
on to those paying policies.
6. Cost increase of $1000 for those who do pay hospitals.
7. Additional problem of those being disincentivized to join the system until sick.
8. Individual mandate addresses these problems; inducing them to get care earlier, creating
balanced pool. Also addresses problem of those who do not have access to health
19
 insurance because of the way in which insurance companies refuse to cover certain
members.
9. Problem: if no individual mandate, people who will be sick will wait until the last
minute until they are sick to join the system. Then the people who are sick will opt into
the system, the average price of premiums will go up, cementing the higher incentive to
stay out of the system and wait until sick. Some states failed without the mandate,
driving insurance companies out of the system.
10. Mass saw individual mandate as addressing this issue, creating balanced community
pool. No adverse selection.
ii. Ginsburg Dissent: Proper regulation of interstate commerce together with necessary and proper
clause.
1. Healthcare insurance market implicates interstate commerce
a. Substantial findings that lack of health insurance has massive impact on interstate
commerce and the American economy ($1,000/family). Therefore, decision of
whether or not to buy insurance is an economic one (~Lopez/Morrison).
b. According to Wickard, if an economic activity, and if it has an impact on
regulation of interstate commerce in the aggregate, than deference to Congress to
rationally conclude this basis and regulate.
c. Impact on interstate commerce is visible to the naked eye, does not require the
piling of inferences.
2. The individual mandate is necessary and proper to uphold the regulatory program
a. Medical insurance reform has failed without individual mandates because
insurance pools will only be comprised of high-risk individuals.
b. The requirement that individuals buy insurance is absolutely necessary to the
efficacy of the broader program.
c. Just as we can prohibit Raich from possession of marijuana we can also prohibit
people from not buying insurance that would screw up the broader regulatory
scheme.
d. As a way of protecting the regulation of interstate commerce, we want to regulate
the economic activities that would other wise undercut the valid regulatory
scheme
e. Tighter connection that in Comstock.
3. Old fashioned dictionary- regulate means command
iii. Roberts Majority: Requiring economic activity is not a proper exercise of commerce power
1. There is a limit to federal power for Commerce Clause regulation
a. 10th amendment reserves power to the people
b. McCulloch this is a government of enumerated, limited powers
c. Marshall: this is a written constitution with limits
d. Constitutional cues:
i. Language gives Congress the power to regulate commerce, but has to be
regulation of an activity that already exists. Bringing commerce into
being is not a regulation of commerce but a creation of commerce.
1. The commerce of buying insurance does not exist before the
individual mandate purporting to regulate it.
2. SFK: It is not entirely clear that the power to regulate does not
involve the power to encourage.
a. Bank of US was precisely to encourage the commerce of
the Unite State
b. Contemporaneous dictionary equates regulate with
command. Roberts: obscure definition at the time.
20
 c. Article 1 Section 4, regulation of elections means bring
those elections into existence. So regulation has an
affirmative grant of power in this article.
d. Conclusion: not clear that regulation implies something
already being in existence. Constitutional language does
not answer the question. Does to regulate presuppose the
existence?
e. Lack of precedence
i. Mandating affirmative action is unprecedented
ii. Ginsburg: we require people to show up for jury duty, register for draft,
hand in gold for paper, file tax returns
iii. But none of these activities are done in the name of the commerce clause.
f. Slippery slope
i. Regulation of insurance market does not involve those uninvolved in
insurance. People who do not participate cannot be regulated as “part of
the insurance market.”
ii. If that were the case, you could require people to participate in all
kinds of markets, do all kinds of things in the name of the commerce
clause power, making the commence power an unlimited fount of
authority.
1. Ginsburg: Action and inaction is a poor distinction. These people
are, by there inaction, impacting a validly regulated industry.
2. Nor would the commerce power be unbridled. Congress would
remain unable to regulate noneconomic conduct that has only an
attenuated effect on interstate commerce and is traditionally left to
state law (citing Lopez/Morrison!)
3. So we do not have to worry about broccoli or divorce (non-
economic activities with attenuated connections, piling of
inferences)
4. Lopez and Morrison impose a limit on the degree of connection an
undertaking has to have on interstate commerce before the court
will uphold it.
5. (1) Economic/noneconomic distinction; (2) must be direct or not
requiring the piling of inference upon inference (broccoli), (3) if
we really have silly rules, there is a political process in place to
correct this.
g. Normative issue:
i. Queasiness of requiring someone to participate in a market against his or
her will. Why is this more offensive then requiring them to serve on a
jury, serve in an army, and call police when they see a federal crime?
ii. We perceive those as an American duty, part of the social contract
whereas commerce is a voluntary, discretionary capitalist, local act that
should not be compelled.
iii. But removing choice to pay for lump sum rather than insurance imposes a
losing transaction on some.
1. But Ginsburg remarks that disobeying the individual mandate is
not criminal, still allows those to pursue that option but at an
incidental cost.
h. Framers:
i. Original drafters would never allow this activity.
21
 ii. Rallied around limited, delegated powers. Constitution evinces caution,
not tyrannical ability to compel activity.
iii. Stupid argument; the framers would e astonished at the slew of
regulations enacted in the name of “their” commerce clause (SSA,
Medicaid, Medicare, Civil Rights Act).
i. My own thoughts- the problem with finding a difference between this case and
Wickard in the degree to which it forces someone to buy a product is that a
suggest that Wickard doesn’t force someone to buy unwanted wheat is that it
presents individual autonomy absent any outside forces. It’s a legal fiction
2. Necessary and Proper
a. Just as Congress can institute a prohibition of marijuana as a way to make
effective regulation of the marijuana market (or Comstock analog), it can use
individual mandate as a way to ensure that the regulation of the medical market
is effective.
b. McCulloch: necessary and proper clause can only function if the ends are
legitimate. While the means of an individual mandate may be necessary and
plainly adapted to an end, the end here has been ruled outside the scope of
Congressional powers, thus not legitimate.
iv. Implications of NFIB on commerce clause jurisprudence
1. Commerce clause cannot affirmatively require action.
2. Cements Lopez/Morrison attenuation doctrine for non-economic activities, since the
liberals invoke it.
3. Uphold ACA as a tax:
a. Roberts has to uphold a construction of the clause that is constitutional. Finds the
individual mandate is valid as a tax grounded in taxing and spending power.
i. (1) Gives people a choice rather than mandate; people can decide not to
engage in activity encouraged. Those noncompliant will pay a tax to
Congress, who can constitutionally raise revenue.
ii. (2) Not a penalty because no mens rea requirement. No stigma of
violating the law. Must be a tax.
iii. (3) Payment collected through IRS, federal taxation body.
iv. Scalia: this was not ever called a tax, and Congress wouldn’t have passed
a tax. This is ex-post ad hoc justification out of thin air!

V. State Sovereignty and the 10th Amendment as External Constraints on Commerce

a. Since McCulloch, theory of state enclave protected by 10th amendment. Federal power, once it
occupies the state, will overrun any state laws via the supremacy clause. The question is whether the
state has any defenses over “integral” state functions.
i. Coyle v. Oklahoma (1911): Court invalidated a provision in federal law that specified the
location of the state capitol since it interfered with an essential, core element of state
sovereignty beyond control of Congress: the location of a government’s seat of power.
1. Those who believe in state immunity point to this case as authority on enclave of state
sovereignty over core elements protected by 10th amendment.
ii. U.S. v. California (1936): California owns its own state railroad and sues to free itself of
federal safety provisions on state railroads. Contends that it is a sovereign authority immune
from federal reach. Court upholds the federal safety provision on state railroads, arguing that
once you enter this type of activity, subject to Congressional power.
1. Those who believe in more extensive federal reach point to this case–if federal power is
legitimate, tenth amendment is satisfied.

22
 iii. U.S. v. New York (1946): Upheld the ability of federal government to tax a state owned spring
and water bottling facility.
1. Beyond Coyle, there appears to be little in the way of a sphere of state sovereignty; does
not include immunity from federal tax on state government facilities.

Fair Labor Standards Act Context:

 FLSA (1938) posed minimum federal wages on those who produced goods destined for interstate
commerce pursuant to commerce clause power. (Darby). Congress immediately began to expand reach of
FLSA.
 1961: FLSA imposed on every economic industry.
 1966: Extended to schools and hospitals on ground that though not making goods for commerce, the
enterprise had a significant nexus with interstate commerce.
 Maryland v. Wirtz (1968): Maryland contends that the expansion of the FLSA to include state hospital,
school employees infringes on sovereignty because these are “propriety” and “governmental” functions.
This power is within the scope of Commerce Power, no state defense, so Constitutional.
o Federal power, once granted, overrides “countervailing” state interests.
 1970: Economic stagnation spurs Nixon to extend FLSA
 1974: FLSA extends to all government activities.
 U.S. v. Fry (1975): Amendment to extend FLSA is upheld because temporary, compelling national
interest to defeat inflation, first articulation of balancing approach between federal and state interest.

b. Battle over “integral” state functions

i. National League of Cities v. Usery (1976): Congress, even in the exercise of an otherwise
valid use of the commerce power, may not control “integral” state functions.
1. Congress extends FLSA to state gov requiring them to pay state employees a certain
amount. Has power to do this by virtue of “substantial impact on” commerce power
prong. Question is whether state has residual sovereign defense against an otherwise
proper regulation.
2. NLC: California wants to have police officers who are well trained. If it has to pay
police officers 1.5x for overtime according to FLSA, it becomes too expensive to match
their budgetary needs suited to their locality. Interference with sovereign authority of
California to undertake responsibility of policing its citizens. Appellants did not
complain that the regulations are beyond the scope of the commerce power;
transgressing an affirmative limit (state sovereignty).
3. Unconstitutional: If Congress exercises authority under commerce clause to
interfere with integral state functions, it is violating the Constitution.
a. State and local governments have residual sovereignty limiting Congress’ power
to interfere with those functions crucial, integral to the independent
administration of states.
i. Islands in the sea of federal commerce power
ii. Overrules Wirtz, does not overrule U.S. v. California, or U.S. v. Fry.
b. Problems:
i. Words of 10th amendment do not seem to contemplate the existence of the
state as an independent entity.
1. Though body of Constitution does presuppose area of state
autonomy.
ii. Which entities does the ruling protect?
1. Historically integral? Functionally integral?
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 2. Asks the court to answer a normative question about what is
integral to the administration of states; what functions are
necessary to preserve federalism?
iii. Inconsistent
1. Between NLC and Garcia, lower courts divide as to which
undertakings fall within NLC
a. Airlines, solid waste disposal, drivers licenses to be part of
integral state functions and protected by NLC ––
telephones, mental health, traffic held not to be protected.
b. U.S. v. Fry upheld, so rampant inflation allows for
imposition of federal controls. Circumstantially non-
integral?
2. Poor guidance to Congress when debating constitutionality of
pending legislation.
iv. Blackmun: to preserve federalism, and allow for logical federal
regulation, use balancing test of federal interest in regulation vs. state
interest in sovereignty.
1. Massively difficult to do
a. McCulloch v. Maryland– judges are not good with
judging matters of degree. These discretionary policy
decisions are best reserved to the legislature.
b. Finally, Courts need to decide what is more important
federal v. state interest; but that should be undertaken by
Congress and judged by the people in elections/political
process.
ii. Garcia v. SAMTA (1985): Rejects Usery approach as “unworkable in practice and unsound in
principle.”
1. Mirror fact pattern to Usery. FLSA trying to control wage earning of public transit
workers.
2. Constitutional:
a. No state programs can be exempt from federal commerce clause power if
appropriately exercised.
b. Federalism concerns are mainly to be exercised through the political
process, court will only interfere when that process fails.
i. Balancing approach had unelected judiciary inquiring into integral or
traditionally sovereign functions; making policy choices.
ii. Sovereign interests more properly protected by procedural safeguards,
political process
1. More so than in the past, state actors can put pressure on federal
actors.
2. Through organizations like the NLC, they can make intrusive
legislation politically unacceptable and costly.
3. Example: after Garcia, Congress listened to states concerns and
revised the FLSA to remove the extension. Political process works
to protect this flexible line.
iii. South Carolina v. Baker (1988): Even if law is biased/state loses in political battle, only a
failure of the political process will construe a valid expression of commerce clause as infringing
federalism.

24
 1. Carolina argues that the political process failed them when Congress passed law
requiring registration of bearer bonds to keep tax-exempt status. South Carolina did not
register its bonds, claims that it affects them unfairly.
2. Constitutional:
a. Nothing here suggests that SC suffered from lack of political process such that
courts could intervene.
b. No gerrymandering to single out SC (paradigm deprivation) no alleged right to
participate. South Carolina is an outlier and loses in this political battle, but it had
a political remedy available.
c. Being a loser in the political process does not make it a failure of the political
process
iv. Preserving the political process with the Plain Statement Rule
1. Gregory v. Aschroft (1991): Plain statement rule used to narrowly construe a federal
statute that would have exerted federal control over state judges.
a. Missouri Constitution says its judges must retire at 70. Federal ADA, pursuant to
commerce clause, prohibits age discrimination.
b. ADA is constitutional, but does not apply to state judges.
i. ADA appropriate use of commerce clause?
1. Unquestionably, this is an appropriate expression of commerce
clause power.
2. Question is whether there is a state interest that overrides the
federal power. We have only seen intervention where political
process fails.
ii. Plain Statement Rule: If Congress wants to alter the constitutional
balance, at a minimum it has to say so clearly; make its intention “clear
and manifest” so as to allow the political process to play out.
1. Will not read the ADA to cover state judges unless Congress had
made it clear that judges are included. States need to know that
their rights are being infringed in order to allow the political
process to be carried out to protect sovereign interests.
v. South Dakota v. Dole (1987): Federal government may condition state receipt of fed funds
on compliance with a request that is (1) related to the fund; and (2) not coercive.
1. United States conditions a grant of federal money on a state’s raising drinking age to 21.
2. States argue that the 21st amendment makes clear that regulation of drinking age is a
core, integral state function. Federal quid pro quo is intrusive.
3. Constitutional
a. Congress is acting pursuant to the spending power, which lets it condition federal
grants even if it couldn’t legislate on the topic directly, so long as
i. Condition pursues general welfare
ii. Condition is unambiguous- a clear statement that Congress has
considered impact on local autonomy
iii. Condition is reasonably related to the federal expenditure
iv. Condition does not force unconstitutional action
b. Does this cross the line from encouragement to coercion? If so, commandeering
concerns (see below), concerns of intrusion on sovereign interests of state
without political remedy.
i. Only a 5% loss of highway funds. Not coercive. Could just turn down
money.
c. “Anti-Commandeering Doctrine” breathes life into federalism
i. Basics:
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 1. The Constitution presupposes some state core functions and activities outside of federal
purview. Actual recognition of federalism.
a. Contemplates an independent executive (enforce laws, keep order, return fleeing
felons), independent judiciary (adjudicate cases, apply law), independent
legislature (pass laws, functions – terms for elections, define scope of franchise,
establish the mechanisms for appointing electors for president, appoint senators,
part of the amendment process)
2. Doctrine recognizes states’ sovereign ability to make and apply law through legislative,
judicial, and administrative functions.
3. Accordingly, Federal Government may not compel
a. A state to enforce or enact a particular law. New York v. United States
b. A state/local official to perform federal administrative tasks. Printz v. United
States
c. Except for generally applicable laws regulating the state itself, and not forcing it
to regulate its citizens. Reno v. Condon
d.
ii. New York v. United States (1992): The structure and spirit of the Constitution and federalism
require the Court to intervene to prevent Congress from commandeering state legislature. Fed
gov may not “commandeer” the state legislature through spending power that leaves state
legislature no real choice but to follow program.
1. State of New York challenges “take title” provision as it commandeers state legislature
to administer Congressional program. Unlike first two provisions, does not incentivize
but compel the state to enact regulations and spend money.
2. Facts
a. Problem- disposal of low-level radioactive waste
b. States allow private entities to open up waste sites and these private sites have
problems
c. National council of governors comes up with plan to work this out- theory to
solve this national problem- this doesn’t work
d. 1985 act required states to provide for disposal of such waste generated within
their borders
e. 3 “incentives” as enforcement mechanism

i. Monetary incentives- One quarter of the surcharges collected by the sited

States must be transferred to an escrow account held by the Secretary of
Energy who then makes payments from this account to each State that has
complied with a series of deadlines

1. Basically, states that do not comply pay taxes that go to states in

compliance

ii. Access incentives- States that fail to meet the July 1986 deadline may be
charged twice the ordinary surcharge for the remainder of 1986 and may
be denied access to disposal facilities thereafter

1. States may deny access from non-compliant states that want to

send their waste there

iii. The take title provision- most severe, states unable to provide for the
disposal of all such waste generated within it shall take title to the waste,
26
 be obligated to take possession of the waste, and shall be liable for all
damages directly or indirectly incurred by such generator or owner as a
consequence of the failure of the State to take possession
3. Unconstitutional: the take title provision
a. Forcing New York to regulate waste within its boundaries, Congress has
commandeered the state legislature in ways that are unconstitutional.
i. It can encourage compliance via monetary conditioning, but cannot
impose a penalty on states that refuse to regulate in accordance with the
federal authority
ii. Incentives for compliance cannot be so great as to override anti-
commandeering doctrine.
iii. Here, Congress has given New York no meaningful choice: it can either
submit to take-title or follow federal regulation. That is the essence of
commandeering.
1. Congress cannot force state government exec action to take title
2. Congress cannot force a state legislature to spend its own money
on a federal regulatory program
iv. Take title provision crosses line separating encouragement from coercion,
removing any actual choice from the states
b. Why is commandeering a problem?
i. Historical foundation for anti-commandeering doctrine
1. 10th amendment installed for that reason
2. Framers debate; articles of confederation required states to
approve legislation from federal government. Virginia plan
allowed federal government to pass statutes that directly control
lives of citizens but did not include federal cooption of state
resources.
ii. Policy reasons
1. Federal government controlling state political resources reduced
political accountability. Lack of clarity of who is in control and
who is responsible for bad policy.
a. Congress to commandeer state governments would
undermine government accountability because Congress
could make a decision, but the states would take the
political heat and be held responsible for a decision that
was not theirs.
2. This accountability theory explains why Congress can impose law
directly on individuals, but cannot require states to make policy
decisions targeted at individuals.
3. Anti-commandeering doctrine does not prohibit generally
applicable exercises of federal commerce or spending authority.
a. Federal government  individuals; federal government 
states; but NOT federal government  states 
individuals.
iii. Printz v. United States (1997):
1. Congress amended Gun Control Act to require local law enforcement officers (CLEOs)
to conduct background checks on gun purchasers at the request of sellers.
2. Printz: Just like New York v. US except the federal government is using state actors in
their executive function, rather than legislative, to achieve federal administrative ends.

27
 3. Unconstitutional: federal government cannot force state local actors to administer
program.
a. This would affect a huge expansion of federal power; drafting state police
officers into federal service. Must allow states to opt out of federal programs.
i. Federal government creates own police forces to carry out federal
programs (DEA, ATF).
b. Two constitutional infringements:
i. Federalism – Congress cannot make states enforce its mandate
ii. Separation of Powers – Congress has no say in executory functions
4. Dissent
a. Framer’s intent: abandoning articles of confederation signals framer’s belief that
calling upon states to enforce federal policy is a good idea.
b. Historical: first Congress enacted legislation requiring state courts to serve as
regulatory agencies in certifying the seaworthiness of vessels.
iv. Reno v. Condon (2000):
1. Challenge to Driver’s Privacy Protection Act, a federal law that prohibited states from
disclosing personal information gained by departments of motor vehicles. Law is a
permissible exercise of commerce power, and is not a violation of the tenth amendment.
2. Plaintiff: like in Printz, an effort to conscript state actors into the service of a federal
regulatory program.
3. Upheld
a. It is not limited to state government; it also regulated private entities that possess
the divers’ license information; it does not force state to regulate people, just
regulates internal state activities of people.
i. Does not reach an anti-commandeering question.
b. It is a prohibition of conduct, not an affirmative mandate as in NY and Printz.
i. Congress can negatively prohibit a state government but cannot
affirmatively obligate a state government since it would
c. Cites South Carolina v. Baker. Requiring South Carolina to register its bonds
was not commandeering of state legislature because some commandeering is an
inevitable consequence of regulating state activity.
v. Murphy v. NCAA (2018)
1. Broader structures of governance are a more appropriate mechanism to maintain state
autonomy
a. But this does not require the state to exercise sovereign authority over its
citizens. Printz, New York.

Medicaid and the Affordable Care Act:

 Medicaid in 1965–States can op in to the program to obtain a part of a pool of federal funds so long as
the state contributes to the fund, enacts mechanisms, and allocate funds to pay for medical care for
disabled, mothers with children living in poverty. All states opt in, 20% of state budgets at stake.
 Medicaid bill includes clause that allows Congress to amend the parameters of the program. Evolution
of program:
o Expands to cover children up to 133% poverty. States continue to opt in.
o ACA: if a state wants to continue existing in program, it must participate in the additional
Congressional expansions to include childless adults with higher income. If states do not comply
with the federal amendments, Fed government will end funding for Medicaid in that state.
Federal government will pay 100% of additional funds for the first few years.

28
vi. NFIB v. Sebelius (2012): Expansion of Medicaid through Tax and Spend Clause
1. Can federal government require states to participate in the new program or lose
eligibility to participate in the old program? Or does this type of conditional funding
cross the line from encouragement to coercive considering the prospect of losing 10% of
state budget?
2. Ginsburg, Sotomayor Dissent:
a. Like SD v. Dole, this is proper exercise of federal funding to condition state
compliance. Congress is acting pursuant to the spending power, which lets it
condition federal grants even if it couldn’t legislate on the topic directly, so long
as
i. Condition pursues general welfare? Yes
ii. Condition is unambiguous? Yes
iii. Condition is reasonably related to the federal expenditure? Yes
iv. Condition does not force unconstitutional action? Yes
b. Does this cross the line from encouragement to coercion? If so, commandeering
concerns, concerns of intrusion on sovereign interests of state without political
remedy.
i. State can take money or not. Congress could just as easily end the
funding stream. Moreover, language of organic statute allows Congress to
alter, repeal, and amend the project at will.
3. Roberts Majority:
a. This is not encouragement but compulsion akin to a gun to the head.
i. Amount of funding is large in the abstract and as a percentage. Incredibly
difficult to turn down.
ii. States have come to rely on this program. It would be easy for states to
say no in 1965 to a program that has yet to be enacted, but once enacted
and relied upon for 50 years, existing without it is nearly impossible.
Program is so popular that state will be forced to raise taxes to satisfy
constituents.
iii. Provision that allows for amendment never anticipated such a
fundamental change; shift in degrees anticipated but not in kind.
4. Analytic problems:
a. Roberts’s majority finds that this is a commandeering issue. But, while it may be
more pressure than other programs, it is not requiring state officials to administer
any new program. Nothing has changed with Medicaid to construe the program
as violating the anti-commandeering doctrine.
b. Normative issue in measuring when incentives become so large that inducement
becomes coercion
i. Thresholds turn on the internal politics of the state. If SD really needs
roads and has a low budget, federal incentive program withholding 5%
would be coercive.
ii. This inquiry forces courts to engage in political punditry.
iii. The only reason there is no “choice” is because the program is so popular.
If the program is popular, states should maintain it as the representatives
of the people.
1. There is no legislative problem here to be fixed by a legal
challenge; just conservatives hating on Medicaid while their
constituents enjoy it. Using the monetary incentive as a straw-man
for coercion when really the people are coercing it.

29
 Review–Different Methods of Structural Federalism
1) Locating pockets of state sovereignty/immunity from federal government on the basis of integral state
functions.
a. NLC v. Usery: 10th Amendment recognizes state immunity from otherwise proper federal
regulation of core integral state functions.
b. Garcia v. SAMTA: Identifying integral state functions without textual/constitutional guidance is
not court’s job. Balancing of state and federal interests is for Congress, considering that states
have structural connections with federal legislature to provide a means of self-defense.
c. SC v. Baker: Where predictable failure in state representation, Court can intervene, but a state
losing in the battle against Congress does not indicate automatic failure.
d. Gregg v. Aschroft: When Congress intends to upset the federal-state balance, it must clearly
indicate that the alteration is intended so as to put states on notice.
2) Taxing and Spending Clause debate at framing whether it is meant to only provide for those purposes
delegated in the constitution (Madison), or broader so long as it is in favor of general welfare
(Hamilton).
a. There is authority to expend funds for general welfare without identifying a source of federal
power.
b. SC v. Dole: Uphold 5% reduction in funds on condition of state compliance with federal law.
Giving state money in exchange for compliance does not violate federalism as long as spending
is (1) for general welfare, (2) unambiguous; (3) some level of connection to national interest; (4)
not barred by some other limitation.
3) Anti-commandeering doctrine says Court can intervene to prevent Congress from commandeering state
legislative or executive functioning.
a. When Congress requires states to regulate individuals, it reduced political accountability.
b. New York v. United States: Congress requiring NY state legislature to regulate its people either
through spending on a contract or taking title of its waste is commandeering.
c. Printz v. United States: Congress requiring local state actors to administer federal program is
commandeering.
d. Reno v. Condon: statute that imposes an obligation on state officials to prevent the disclosure of
information connected with driver applications is not in conflict with anti-commandeering
principle. It is only those circumstances in which states act in sovereign capacity to regulate their
constituents that the anti-commandeering doctrine kicks in.

VI. Privileges and Immunities

a. Basics of Doctrine:
i. Constitution provides very few substantive individual rights.
1. Body of the Constitution provides structure, form, and powers of government as the
means by which people would be free from tyranny of government.
2. Side constraints on the exercise of powers in the bill of rights, which mostly protect
individual liberty and property.
3. Privileges and immunities in Article IV has most potential.
ii. If Constitution is silent on protecting people from legislative tyranny, how can SCOTUS
protect…
1. A cache of fundamental rights from arbitrary, discriminatory, violations of human rights,
denial of choice, violation of equal protection legislation.
iii. Timeline:
1. Pre-Civil War–Very few substantive limits placed on states

30
 a. Scott v. Sanford: Taking of property from someone just because transported
from state to state “could not be dignified with the name due process of law.”
Earliest articulation of substantive due process.
2. Post-Civil War amendments change calculus
a. Amendment XIII “involuntary servitude”
b. Amendment XIV
i. Citizenship clause rectifying Scott. Citizen of US and state in which you
live.
ii. No state can deny privileges and immunities of citizens of US
iii. Equal protection of the laws
iv. No state deprives of life, liberty, or property without Due Process of Law.
v. Enforcement clause
b. Pre-Civil War:
i. Calder v. Bull (1789): An act by government that deprives citizens of certain natural law rights
is not law at all.
1. Connecticut passed a statute setting aside a probate court order that had transferred a will
to the deceased wife rather than Mr. Bull. Wife raises challenge on the basis that the
Constitution prohibits ex-post facto laws.
2. The ex-post facto provision of the Constitution applies solely to criminal cases, not
civil cases.
3. Chase:
a. The people established government for a certain set of ends–justice, liberty, and
welfare. As long as the Government is carrying out these broad ends, its side of
the social compact/republican principles, it is appropriately adopting laws.
i. Natural law argument: the Constitution embodies certain natural law
rights that Government may not deny.
b. To the extent that a legislature tries to pass a law that violates these pre-
determined ends of Government, that act, like one that expressly violates the
Constitution’s text, is no law at all.
i. Since Government was established to protect property, taking property
from A and giving it to B is not within its authority.
ii. Limitations on the legislature arise out of the purposes for which
government was created (“social compact”).
c. To carry out this exercise, Judges have to go back to the first principles of
republican government; if the statute in question is inconsistent with the
underpinnings on which the Government was formed, it is void.
4. Iridell:
a. Only those actions of a state that explicitly violated a textual provision of the
Constitution could be declared void.
i. Chases’ reliance on natural rights leads to judicial manipulation. Nothing
in the Constitution signals basic commitments that must be protected.
ii. In American law, we codified the rights to be respected at all times in a
written Constitution. When a law goes beyond the limits of what’s
deliberately written, it can be struck down. Otherwise, arguments of
natural justice and proper republican principles are best left for legislature
to sort out.
5. Issues with a narrow approach to substantive inquiries:
a. Reading the Constitution with the prolixity of a legal code removes from
judiciary the power to interpret the law (Marbury v. Madison).
b. The 9th amendment suggests more rights retained by the people than those listed.
31
 c. There is frequently an absence of textual basis in cases where the law is at odds
with foundational commitments. Especially during this time period, Iredell’s
reading can lead to unfair, unsatisfying, discriminatory outcomes or give the
legislature real omnipotence.
ii. Barron v. Baltimore (1833):
1. City of Baltimore destroys wharf by diverting streams and depositing large sums of
earth. Barron accuses city of violating taking clause of 5th amendment.
2. 5th amendment protections govern relationship of citizens vis-a-vi federal
government; the bill of rights do not limit the actions of states.
a. “The limits of the Constitution are applicable to the government created by the
instrument.”
i. The revolt that drove the Constitution was against the tyranny of
centralized power, not local power.
b. States have their own Constitutions to govern relations with their citizens.
c. Art I, Sec. 9, Cl. 10 separates state and federal governments; passive sentence
structure suggests strongly that the bill of rights applies only to the federal
government.
iii. Article IV “Privileges and Immunities”:
1. The body of the Original constitution has limited personal protections in magnitude and
scope.
a. Apply only to federal government and generally treat property rights.
2. Potential of expansion through Article IV Privileges and Immunities clause, which
prohibits states from engaging in certain types of discrimination against citizens of other
states. Implicates protection of fundamental rights, Chase’s body of fundamental rights.
a. Corfield .v Coryell (1823): The Privileges and Immunities clause is triggered
only if a state discriminates against citizens of other states with respect to
interests that are sufficiently “fundamental” to come within the purview of the
clause. Protects ability of citizens of other states to come to other states and
exercise the privileges and immunities that are fundamental and belong to
citizens of all free governments; protection, acquire property, obtain
opportunities to work, to enter into contracts. Ability to take oysters is not a
fundamental rights therefore not a privilege and immunity of citizenship so it can
be restricted from out of staters. This is subject to restraints the government may
prescribe for the general good.
b. Scott v. Sanford (1857): Depriving an individual of property simply for
migration from slave to non-slave state could not be dignified with the name due
process of law.
c. Post-Civil War:
i. 14th Amendment meant to upset the federalism balance and expand access to states’ privileges
and immunities. Unlike Article IV, the Fourteenth amendment prohibits any abridgment of a
citizen’s privileges or immunities, whether or not there is discrimination against citizens of
other states. Potential to read this as protecting those fundamental privileges and immunities a
state owes to its own citizens (from Coryell – acquire property, obtain opportunities to work, to
enter into contracts, travel freely in the state, and taxation), and to incorporate the Bill of Rights.
ii. Paul v. Virginia (1869)
1. Question- can an out-of-state insurance company do business in VA without VA’s
permission?
2. Ruling- states do not violate the privileges and immunities clause by restricting
corporations because while they might be people, they are not CITIZENS and therefore
the privileges and immunities clause does not apply
32
 3. Article 4 is meant to establish a single national polity
iii. Slaughterhouse Cases (1873): Narrow reading of the Fourteenth Amendment’s Privileges and
Immunities clause; meant to provide rights to African Americans, not meant to give “any
additional protection” to the privileges and immunities of state citizenship.
1. Louisiana passes statute vesting exclusive authority in one company to engage in the
holding and butchery of livestock in New Orleans. Part of police power to limit
pollution, contamination, and exercise control over one entity to see that it properly treat
its meat. Plaintiffs assert that the new 14th amendment protects a body of fundamental
rights (obtain opportunity to work) of citizens from deprivation by the state, even absent
citizenship discrimination; or, alternatively, 13th amendment voids a law that would force
butchers to work for one corporation.
2. Facts
a. Slaughterhouses are throwing carcasses in the river in New Orleans
b. LA passed law granting one corporation exclusive right to slaughterhouse but
other butchers could rent spot with the corporation
c. This is a monopoly on 1000 square miles
d. Issue- butchers argue that this is involuntary servitude and violation of privileges
and immunities under 14th amendment
3. Miller Majority: Statute is constitutional because the 13th and 14th amendment were
narrowly intended to cure inequalities toward African Americans; triumph of the Union
and the elimination of slavery through amendment of the Constitution. Additionally, this
is a proper expression of local police power to regulate harmful butchery practices.
a. 13th Amendment:
i. Argument was that the law forces butchers to work for this one
corporation which is “involuntary servitude.”
ii. Does not apply here: 13th amendment designed to embed the overturning
of slavery in the Constitutional structure. Slavery confined to being
owned with Dred Scott as the paradigm of traditional slavery. Does not
include involuntary working.
b. 14th Amendment:
i. Argument was that 14th amendment includes an absolute protection of
fundamental liberties from states to their citizens. The LA statute has
infringed the Coryell fundamental right of obtaining work, made
available to citizens through the 14th amendment.
ii. Distinguishes citizenship between citizenship of a state and citizenship of
the nation.
1. Article IV protects the privileges and immunities of state
citizenship, whereas the Fourteenth Amendment protects the
privileges and immunities of national citizenship.
a. The privileges and immunities of Article IV state
citizenship, which only apply to out of staters, include
rights to pursue a trade, to own property, and to travel
freely in the state, all on an equal basis with a state’s own
citizens.
b. On the other hand, the privileges or immunities of national
citizenship, which receive absolute protection under the
14th amendment, embrace the right to travel, the right to
protection while at sea, the right to petition the national
government, the right to habeas corpus, right to protection
of federal treaties.
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 i. The privileges and immunities clause only protects
the fundamental rights that belong to citizens of all
free governments- difficult to enumerate, but
include protection by the government, right to
property, right to happiness and safety, but
subjected to restriction for general good
ii. This does not include right to employment
2. Given the purpose of the amendment, Miller is uncomfortable
making the Federal Courts the ultimate arbiter of state police
powers in light of its impact on privileges and immunities. These
inquiries would upset the federalist balance by having local
decisions made by the federal government.
c. Issues with legal theory?
i. 14th amendment intended to upset the federalism balance; civil war
demonstrated the need of the federal government to intervene against
crazy state governments.
ii. Crandall v. Nevada (1868) pre-existed the 14th amendment so all
national rights could have been protected even without the privileges and
immunities clause. So the clause must add rights without going toward
full federal superintendence.
4. Field Dissent: Agrees that police powers are for the state to exercise, but this law is
abridging rights of some for the sake of others; “taking from A to give to B”
a. 13th Amendment should not be read so narrowly
i. Eliminating slavery by amendment was not just a matter of preventing
African slavery but of embedding the proposition that every individual is
a freeman in the United States.
ii. Ensure autonomy with the ability to seek independent profession. No
forced subordination of one person to another.
iii. This statute makes butchers’ autonomy subject to the one company vested
with power.
iv. In other words, construes 13th amendment to restrict involuntary
servitude, but also precluding people from having no options in
employment- demand for a job coming from need for money
v. Broccoli horrible  to limit slaughtering would allow the state to limit
baking, candle-stick making, eradicate the practice of any profession.
th
b. 14 Amendment Fourteenth amendment makes sure states can’t take away the
privileges and immunities we think people ought to keep, dependent not on what
state you live in, but on your being a citizen of the US.
i. Definition of privileges and immunities of citizenship in Article IV
defines the privileges and immunities that states now may not limit
because of XIV.
ii. What the Art. IV privs and immunes does for citizens of one state in
another state, this does for citizens of every state against laws made by
his home state.
iii. State statute advancing one group at the expense of others if a natural and
inalienable right that must be voided by the 14th amendment.
iv. 14th amendment- argues that privileges and immunities and rights
belonging to citizens of all free governments include a right to lawful
employment, which is a common calling

34
 v. 14th amendment does for people within the state what A4 did for
outsiders
iv. Hepburn v. Griswold (1870): Court invalidates statute making paper legal tender for debt.
Since compelling somebody to accept something other than what was contracted for was a
taking of property, the Court found that making notes legal tender was a taking without just
compensation; inconsistent with an underlying commitment in the constitution to a preservation
of property.
v. Legal Tender Cases (1871): Nothing in the text of the Constitution prohibits the requirement of
taking federal paper currency as legal tender. Constitution protects against taking property, not
making property less valuable.
d. Right to travel and Article IV
i. Presupposition of federalism that people can move to the states that match their tastes. If people
do not like the sovereign rule of the state, they have freedom of movement. Important as well to
economic development, human capital. National interest and structural commitment to free
interstate movement of people.
ii. Prevention from traveling cases:
1. Crandall v. Nevada (1868): A state cannot inhibit a person from leaving the state by
taxing them.
2. Edwards v. California (1941): Strikes down anti-Okie law that prohibiting the bringing
of indigent persons into California. Inconsistent with a unified country, and the special
right to travel from state to state.
3. U.S. v. Guest (1966): Right to travel is a privilege and immunity of citizenship that can
be enforced by the federal government against those seeking to violate it.
4. New Hampshire Supreme Court v. Piper (1985): The opportunity to practice law is a
“fundamental right.” There is no substantial reason for denying nonresidents admission
to the New Hampshire to and the discrimination does not bear a close relationship to the
State’s objectives.
iii. Article IV protects individuals of one state when they travel to another state from the prospect
of being disadvantaged by their non-citizenship of the state. “Right to travel without being
treated as an alien is recognized in the constitution.”
1. For the few exceptions, has to be a substantial reason for not providing to non-residents
2. Some rights can be limited to bona fide residents of the state
iv. Revival of 14th amendment privileges or immunities clause
1. Shapiro v. Thompson (1969): Strikes down state statute prohibiting new entrants from
recouping welfare. The fundamental right to travel and the Equal protection clause
forbid a state from reserving welfare benefits only for persons that have resided in the
state for at least a year. Penalizes exercise of the right to migrate, chilling effect on
travel.
2. Maricopa Hosp. v. Maricopa County (1974): A statute requiring one year residency as
a condition to an indigent’s receiving nonemergency medical care violates equal
protection clause and impinges on the right to interstate travel by denying newcomers
basic necessities of life.
3. Dunn v. Blumstein (1971): A TN law requiring one year residency as a condition for
voting is an unconstitutional infringement on the right to travel.
4. Vlandis v. Kline (1973): One year waiting period for lower tuition on public education
is acceptable discrimination on visitors.
5. Sosna v. Iowa (1975): One year waiting period for divorce in Iowa courts is acceptable
discrimination.
6. Saenz v. Roe (1999): Right to travel between states and privileges or immunities clause
means that a state cannot condition benefits on the duration of stay.
35
 a. California has set up a system of aid that treats long term residents in one fashion
($641/month/3 people), but for those who come from other states, during their
first year of residency they are only entitled to the benefit amount from their
origin state. Congress has passed a statute that allowed state participating in
federal welfare programs to enact discriminatory statutes. Has California violated
the right to migrate by denying a privilege/immunity of California residency to
travelers? Or has it validly protected itself from becoming a welfare magnet?
b. Unconstitutional; States cannot interfere with the right to travel or deny a
privilege and immunity to travelers so as to select their residents. Congress
cannot authorize a violation of the 14th amendment.
i. There is an assumed and fundamental “right to travel” ever since
Slaughterhouse Cases and is protected by the Privileges or Immunities
Clause of the 14th amendment.
ii. Aspect of that right is to become a bona fide citizen of that state with the
same privileges and immunities of the residents of the state.
iii. In some cases, the state may withhold privileges and immunities to
travelers where the legislature has reason to believe travelers are not
intending to become bona fide citizens, but rather take a benefit and run.
1. Sonsa, Vlandis in cases which involve portable benefits, state
may use a waiting period as a proxy for bona fide residency.
iv. Since California has not made a showing that travelers are coming to the
state for its welfare benefits and then leaving, there is no basis for
policing residency.
v. Right to become a citizen of a state where you reside is in the 14th
amendment- privilege and immunity of national citizenship
vi. Requires use of strict scrutiny
vii. States cannot make classes of citizens based on when they got there
viii. Congress also cannot authorize this
ix. Right to migrate comes from being a citizen of the US
v. Article 4 P/I clause
1. Doe v. Bolton (1973)- Stopping out of state residents from having abortions is a
violation of the P/I clause
2. Baldwin v. Montana (1978)- Charging out of staters higher prices for hunting licenses
does not violate privileges and immunities clause

3. Piper (1985)- "The Clause does not preclude discrimination against nonresidents where
(i) there is a substantial reason for the difference in treatment, and (ii) the discrimination
practiced against nonresidents bears a substantial relationship to the State's objective. In
deciding whether the discrimination bears a close or substantial relationship... the Court
has considered the availability of less restrictive means"
4. McBurney v. Young (2013)- Restricting FOIA filing to state citizens does not violate P/I
clause
5. Saenz v. Roe (1999)- also leaves open ability of state to question the actuality of state
citizenship
i.
VII. Substantive Due Process
a. Basics:
i. SCOTUS begins to entertain cases brought by economic actors that legislative interventions that
alter the terms of economic interactions constitute a deprivation of property without due process

36
 of law. Slaughterhouse cases neutralizes substantive guarantee of individual rights via privileges
and immunities clause; now non-procedural, substantive reading of due process to protect a
body of individual rights.
ii. Justification:
1. Constitution provided very few substantive guarantees of individual rights against state
power.
2. Searching 14th amendment for new protections against the state; the governmental body
most active in police legislation that directly impacts individuals.
3. By end of Warren Court in Duncan v. Louisiana (1968), the due process clause had
been used to apply many provisions of the bill of rights to interactions between states
and individuals (overturning Barron v. Baltimore).
iii. Interpretive modes:
1. Invoking the due process clause substantively to void a state law takes on the language
of the Slaughterhouse dissenters/chase natural rights
a. Lochner: Economic intervention by state legislature is viewed as “taking
property from A and giving to B” and void as inconsistent with republican
principles.
2. If law is to interfere with liberty and property, it must be directly related to a legitimate
end.
a. Police power ends (health, safety, morals, public welfare) were legitimate.
i. Choosing to redistribute some property from A to B because the
legislature prefers B is not acceptable.
b. The means need to be directly related to the end.
i. Tight nexus required between the deprivations legislated and the
legitimate end reached.
iv. Incorporation cases
1. Chicago Burlington v. Chicago (1897)- Takings Clause
2. Gitlow v. NY (1925), Fiske (1927)- Speech, press, religion
3. Palko v. Connecticut (1937)- No incorporation of double jeopardy
a. “Very essence of ordered liberty”
b. “So rooted as to be ranked as fundamental such that neither liberty nor justice
can be protected without it”
c. Overruled in Benton v. MD (1969)
4. Robinson v. California (1962)- Cruel/unusual punishment
5. Duncan v. LA (1968)- Jury
6. McDonald v. Chicago (2010)- Arms
7. Timbs v. Indiana (2019)- Excessive fines
b. Pre-Lochner History:
i. Between 1872 and the end of the 19th century, the Supreme Court begins to review cases
through the lens of substantive due process.
ii. Santa Clara County v. SRPR (1886): Corporations are to be regarded as persons for the sake
of invoking due process clause.
iii. But, SCOTUS often declines to strike down legislation, evincing a deference to state police
powers to protect the health, safety, welfare, and morals of its citizens against problematic
infringements on property and liberty.
1. Munn v. Illinois (1877): upholding state regulation of private business’ grain elevators
acting in the public interest.
2. Mugler v. Kansas (1887): upholding state prohibition of liquor production as a proper
exercise of state police powers to advance public health, safety, and morals.
3. Kidd v. Pearson (1888): upholding state prohibition of alcohol manufacture.
37
 4. Laughten v. Steel (1894): upholding a state prohibition against nets in managing the
fishing stock to give all a fair opportunity.
5. Holden v. Hardy (1898): uphold state legislation of maximum hours miners can work
as a legitimate exercise of the police power.
6. Deference abruptly changes with Lochner.
c. Lochner v. New York (1905): While states have authority to regulate in the public interest, they do not
have the authority to interfere with liberty and property through illegitimate ends pursued through
means not reasonably and substantially related.
i. NY law prohibiting bakery owners from employing people more than 60 hours a week. Bakery
owners argue that the statute limits the freedom of men to enter contracts for work, an
outgrowth of their property right that cannot be discharged without due process.
ii. Peckham Majority: Law is unconstitutional as violating substantive due process.
1. “The act must have a more direct relation, as a means to an end, and the end itself must
be appropriate and legitimate, before an act can be held to be valid which interferes with
the general right of an individual to be free in his person and in his power to contract in
relation to his own labor.”
a. End: public health (dirty bread); means: no nexus between limiting hours and
ensuring clean bread.
b. End: protecting baker’s health (Holden); means: no basis on which to find that
Baker’s collapse in their 10th hour of work.
c. The means only substantially related to one illegitimate end: labor law to
advantage baker employees at the expense of chief bakers.
2. Here, the simple re-distribution of economic advantage – taking from A to give to B – is
not allowed. Arbitrary deprivation of property without due process of law.
a. No reason to think that bakers need this legislative protection. More likely that
the legislature is simply preferring one group to another.
3. While the state has authority to regulate in the public interest, for public safety and
morals, they do not have authority to interfere with liberty and property in a manner that
is unreasonable, unnecessary, and arbitrary.
4. Opportunity to enter into commercial transactions is an element of liberty
iii. Harlan dissent: Where a conflict between two accounts of empirical reality, the legislature
should get deference when it can show a belief that there is room for debate.
1. So long as there is room for reasonable debate, the law should not be struck down. Court
should defer to the deliberated outcome of legislatures that as a general matter working
for more than 60 hours a week imperils bakers.
2. Room for debate is enough to for the legislature to show that it has adopted a rational
means to a legitimate end.
3. Legislatures are better at making substantive law that judges. Can gather evidence over
time, not bound by rules of evidence, not confined to making binary choices but can
canvass a range of options. Are more responsible to the people, laws can be changed in
legislatures.
iv. Holmes dissent:
1. The Constitution is not meant to embody a specific economic theory; Peckham’s
rationale is grounded in lasisez-faire economy theory. We cannot say that legitimate
ends are economic principles currently accepted by members of the court.
2. Sunday laws, usury laws, lottery laws; the Government infringes on property without
due process all the time.
3. Liberty: purpose of the constitution is to allow the legislature to identify appropriate
public ends. The word liberty is perverted when held to prevent a natural outcome of
dominant opinion, unless the action infringes fundamental principles, as they have
38
 been understood by our people and the law.  Holmes’ ground of invalidating in the
name of a substantive due process violation.
4. Holmes’ referenced side constraints supports the selective incorporation of those rights
in the bill of rights to the states; capture fundamental principles that are in the traditions
of our people and our law and are liberties that cannot be infringed upon by government.
a. Gitlow v. New York (1925): the right to free speech is a fundamental principle
that cannot be infringed by a state legislature even when acting in the furtherance
of public morals (police power).
v. Historical significance:
1. Synonymous with judicial activism, legislating from the bench
2. Fundamental disagreement about the Court’s scope of review of the appropriateness of a
government end
a. Holmes: deference to the legislature because it represents the people
b. Peckham: the judiciary can engage in substantive review of law b/c they are
bound by the Constitution.
d. Lochner Era:
i. Invoking the due process clause substantively to void a state law takes on the language of the
Slaughterhouse dissenters
1. Lochner: Economic intervention by state legislature is viewed as “taking property from
A and giving to B” and void as inconsistent with republican principles.
2. But, does not mean absolute laissez-faire dominance; still exceptions for public health
regulations that evince a tight means-ends fit. (Champion v. Ames, Hoke v. US, and
Holden v. Harden). Public health does not include rectifying labor relationships or
intervening to benefit workers under the thumb of employers.
ii. Adkins v. Children’s Hospital (1923): imposing a federal minimum wage on employers for
women was an unconstitutional infringement on liberty to contract without due process; taking
from A and giving to B without justification in the public interest.
iii. Adair v. United States (1908): struck down a federal labor law that prohibited “yellow-dog
contracts” on the basis that they infringed on a liberty to contract.
iv. Muller v. Oregon (1908): upholds labor law limiting women’s hours on the ground that a
“women’s physical structure” created a legitimate moral end in infringing on her freedom of
contract. This is not unreasonable, unnecessary, or arbitrary because healthy women are needed
for a healthy polity and the limit on hours reaches that legitimate goal in the name of public
welfare.
v. Coppage v. Kansas (1915): it is outside the scope of state police power to prohibit employment
contracts that bar workers from joining unions (like Adair, upheld yellow dog contracts).
e. The end of Lochner:
i. Bunting v. Oregon (1917): Uphold a 10-hour workday for both men and women. Attorney
Frankfurter presents data that shows the nexus of ten hour days and beneficial public health,
making the government have a legitimate interest in limiting work hours.
ii. Buck v. Bell (1927):
1. Virginia state statute permits Superintendent to force sterilization of “mental defectives”
in the interest of the patient an society (“three generations of idiots is enough.”) The
surgery occurs after notice, hearing, appeal, and involvement of state actors and courts,
in which it is concluded whether painless sterilization is proper.
2. Holmes: Constitutional. Reversing to an inquiry into procedural due process, this state
statute affords plenty of due process prior to the corporal deprivation.
a. As to the substantive review, not necessary; the people of Virginia have spoken
through their legislature that sterilization is a rational means to further legitimate
public goals.
39
 b. If we require soldiers to die, people to vaccinate, is it not also acceptable that we,
after substantial procedural due process, defer to the legislature in its belief that it
has adopted a rational means to a legitimate end.
c. Unfortunately, in defeating substantive due process, Holmes had allowed for a
deeply unsatisfying outcome. He needed a side constraint, a “fundamental right”
which could not be infringed on; a doctrine for protecting bodily integrity in
some fashion from assault.
iii. Nebbia v. New York (1934): Marked a significant shift from Lochner, suggesting a much-
reduced judicial role in scrutinizing the means employed in economic regulations.
1. New York law fixes prices for milk (it’s the Depression)
2. End: to preserve the financial stability of dairy farms, in order to ensure healthy milk.
Belief that without high profits, dairy farms will be lax in their anti-contamination
standards.
3. Reasonable connection: data shows that is unlikely the case that grocery store owners
will pass the profits reaped from fixed prices onto the farmers. So lack of an obvious
connection between fixed milk prices and financial stability of farms.
4. Majority: as long as the law has a reasonable relationship to a proper end, the court
defers to New York. There is a conceivable economic chain here; as long as there is
room for debate as to the methods and New York has spoken, New York will prevail.
5. This is a move towards Harlan’s approach in Lochner
iv. West Coast Hotel v. Parrish (1937): overrules Adkins reasoning that a minimum wage law
requires employers to subsidize their employees (“taking from A giving to B”).
1. The Constitution does not speak of freedom of contract. Legislation that is reasonable in
relation to its subject and is adopted in the interests of the community is due process.
a. An end of helping rectify relationship between women and employers is
legitimate. Legislature was clearly entitled to consider that women are in a weak
position of bargaining power and was entitled to adopt measures to reduce this
affect.
b. If women are not paid a living wage, they are going to go to the welfare office
and drain the system. Since the legislature could have found this, and there is no
substantive liberty to contract, it is a political decision that does not touch on a
constitutional right.
c. More on the proper legislative end: rather than viewing regulation as a taking of
property, the Court suggested that not regulating would be a subsidy to
employers; regulation is not “taking from A to give to B” but restoring the
balance of power between employer and employee.
f. New Doctrine––Minimum Rationality Review of Economic Legislation
i. United States v. Carolene Products Co (1938): Court rejected a due process challenge to a
federal prohibition of the interstate shipment of filled milk. No room to challenge the rational
basis of such economic legislation: the decision is for Congress.
1. Judicial review sometimes does, and may, but needn’t focus on legislative debate and
fact finding. The simple fact that an Act was debated in Congress lends credence to
the suggestion that there is a rational basis.
ii. Williams v. Lee Optical Co. (1955):
1. State statute prohibits opticians from making lenses without new prescriptions from
optometrists.
2. Upheld as constitutional:
a. Court does not probe the legislative ends deeply; enough that the legislature
believed there to be an evil at hand for correction, and employed this particular
measure to correct it.
40
 b. Whether or not there is a more plausible explanation for the regulation, whether
or not the legislature actually believed the basis offered by lawyers, as long as a
rational connection to a possible legislative goal is offered, that is enough.
c. Incredibly deferent…
i. “The law need not be in every aspect logically consistent with its aims
to be constitutional”
ii. No findings relied upon by court; post-hoc rationalization accepted. Court
willing to accept a conceivable rational relationship to any legitimate end
as sufficient.
1. Here: eye examinations are critical for the protection of ailments;
enforcing renewed restrictions forces eye examinations.
iii. The legislature MIGHT have concluded…
d. Leaves no room for substantive due process judicial review. Success of Holmes
in upholding a statute designed clearly to benefit optometrists at the expense of
opticians.
iii. Exceptions to the Minimum Rationality Review:
1. In most fields, Carolene Products and Williams Optical have set the baseline of general
deference: all that is required to meet the demands of due process is a rational
connection that can plausibly be believed to link the intervention with some
legitimate government end. Are there exceptions where the Court should intervene on a
traditional notion of substantive due process?
a. Punitive damages:
i. Court uses substantive due process to allow for caps on punitive damages.
ii. Why should the Court afford less deference to juries in their decision
making?
1. Juries have virtues as decision makers but they are not
representative of the democratically elected “legislature”
2. Their rulings are retrospective and permanent
3. Higher level of supervision allowed.
b. Carolene Products Footnote 4: the Court should adopt a higher level of scrutiny
into the means-ends fit, and be prepared to intervene akin to Lochner, in the
following categories of cases.
i. (1) In cases where legislation appears to be within the specific
prohibition of the Constitution (first ten amendments). These are
rights identified in the Constitutional text where previous substantive due
process rights (economic) were political.
1. Peculiarity – first ten amendments apply only to federal
government. U.S. v. Cruikshank rejected incorporation through
the privileges and immunities clause.
ii. (2) Cases where there are political shortfalls. Court has consistently relied
upon an unfettered political process as a remedy to bad legislation (rather
than substantive DP strikes). So the court must protect against laws
which might curtail the very political process that would bear the
responsibility of overturning the law.
1. Restrictions on right to vote, political organization, peaceful
assembly
iii. (3) Statutes directed at racial, religious minorities. Strong history of
prejudice against these groups may curtail political process, leading
majority to give inadequate weight to minority interests in the political
discussion.
41
 1. Insular and discrete minorities will not be able to make alliances
to temper majoritarian overreach (so we cannot trust the political
process to represent their interests adequately)
g. Substantive Due Process and Bodily Integrity
i. Court confronts a problem with its deference to legislatures, eradication of substantive due
process, limited categories for judicial intervention, and piecemeal incorporation of the bill of
rights when it comes to vicious government assault on bodily integrity. Category (1) of Carolene
Footnote 4 cannot support judicial intervention since the 4th amendment will not be incorporated
to the states yet.
ii. Rochin v. California (1952):
1. Police, suspecting drug sales, break into man’s house and force him to throw up,
uncovering illegal drugs. Charge him with possession of morphine.
2. Unconstitutional violation of due process
a. Minimum rational post-Lochner? Yes, legitimate interest in suppressing narcotics
achieved through a rationally adapted police practice.
b. Carolene Products exception?
i. Not a political representation issue
ii. Not a textual right applied to the states…yet
iii. Not a minority
c. Broad Holmesian side constraints void this practice!
i. Any rational person would see this as infringing the traditions and law of
people. Violation of a fundamental right to bodily integrity.
ii. Brutal assaults on the body, that so “shock the conscience,” even when
pursued to a legitimate end, are incompatible with those fundamental
rights presupposed by the Bill of Rights and within 14th amendment “due
process” protection.
iii. Bodily integrity seems fundamental to our society–
1. 4th amendment freedom from search and seizure
2. 8th amendment doesn’t allow for post-conviction torture, so
fundamental right to not allow torture to effect conviction.
3. 13th amendment speaks to bodily rights; right to not have one’s
body be at the disposal of the state.
iv. Distinguish from Lochner’s defeated substantive due process?
1. Bodily protection is embodied in our bill of rights in many places,
unlike economic liberties, which can be freely regulated post-
Lochner.
iii. Bodily Integrity Doctrinal Development
1. Two poles emerge when drawing side constraints from the constitution with regard to
bodily integrity:
a. Jacobson v. Massachusetts (1905): In scenarios where intrusion on bodily
integrity is relatively small compared to the benefit, court will defer to
legislature. Balancing approach construes forced small pox vaccinations as
permissible intrusions on bodily integrity in light of government’s compelling
interest in stopping the spread of communicable diseases.
b. Rochin v. California: Where the intervention is so extreme as to violate the
fundamental right to bodily integrity, or “shock the conscience”, the bodily
intervention is unconstitutional.
2. Post-Mapp v. Ohio incorporation of the 4th amendment to the states:
a. While IV amendment is limited textually to searches and seizures, Court
extrapolates a basic right to bodily integrity included the right to be free from
42
 force. Government interventions are unreasonable where they involve
disproportionate physical force.
b. Shmerber v. California (1966): A state may extract blood from a person
suspected of drunk driving without violating due process because the magnitude
of the bodily intervention is small.
c. Tennessee v. Gardner (1985): Balancing the magnitude of intervention (death)
with that of government interest (arrest), a law officer may only use deadly force
to prevent fleeing suspect if he has probable cause to believe that the suspect
poses a serious threat of death. Balancing demonstrates need for constraint
against the application of disproportionate force.
d. Winston v. Lee (1968): Where the government wants to remove a bullet to track
ballistics, the reasonableness is a question of balancing. Bullet has truth value,
but the intervention is disproportionate to the ends.
e. Riggins v. Nevada (1992): Government can impose anti-psychotic medication
on detainees if it can demonstrate a need/appropriateness, and no other, less
intrusive option.
f. U.S. v. Lanier (1997): Freedom from physical/sexual assault is a fundamental
right the violation of which “shocks the conscience”, construing the intervention
as a violating the 14th amendment due process and providing the basis for federal
prosecution.
g. Sacramento v. Lewis (1998): Police hitting a bystander rather than the intended
targets are not in violation of substantive due process of the 14th amendment
because a mistake does not shock the conscience.
iv. Post Robinson v. California incorporation of the 8th Amendment to the states:
1. Prohibition of cruel and unusual punishment not only includes judicial imposition of
torture as a penalty but requires that where the government commits individuals to its
custody, that the custodians act with minimum decency. Violations can arise from
deliberate indifference or intentional and malicious application of force by jailers to their
charges.
2. Estelle v. Gamble (1976): refusal of medical treatment to a prison constitutes cruel and
unusual punishment. Certain decencies of civilized conduct must be applicable to
prisoners.
3. Brown v. Plata (2011): California has to provide levels of decent amenities to prisoners.
An assault is not a valid penological tool.
4. Outside of custody cases:
a. O’Connor v. Donaldson (1975): A State cannot constitutionally confine a non-
dangerous individual who is capable of surviving safely in freedom by
themselves or with the help of willing and responsible family members or
friends. Treatment can be a basis for incarceration, but mere animosity cannot
justify a deprivation of constitutional liberty.
i. No basis for treating individuals adversely simply because the public
doesn’t like them.
ii. Hamdi v. Rumsfeld (2004): Since animosity cannot justify the
deprivation of liberty, association with Al Qaeda, without more, cannot
be a basis for incarceration.
b. Bell v. Wolfish (1979) evolving standards of decency and minimum level of
regard that applies to states in punishing prisoners applies to pre-trial detainees.
8th amendment is a floor.

43
 c. Youngsberg v. Romeo (1982): Involuntarily committed mentally retarded man
has a constitutionally protected liberty interest in safety. State has an obligation
to provide reasonable care for one who has done nothing wrong.
v. Cruzan v. Department of Health (1990):
1. After injury, Cruzan is in a permanent vegetative state. No living will. Missouri Law will
not allow a cessation of treatment since the Cruzan’s have not proving by “clear and
convincing evidence” that Cruzan would wish to refuse treatment.
2. (1) Competent adults have a constitutional right to refuse medical care under due
process and (2) a state may require clear and convincing evidence that person
wanted treatment terminated.
a. Court has recognized a due process right to refusal of medical treatment
i. Jacobson v. Massachusetts, Youngsberg v. Romeo
ii. Washington v. Harper (right to refuse anti-psychotic medication)
iii. Rochin, Shmerber, Winston all recognize a right to bodily autonomy
balanced against the interests of the intrusion.
iv. Scalia: Constitution, nor Framers, would recognize such a right.
b. States has an important interest in protecting life and in ensuring that a person
desired the end of treatment before it is suspended.
i. Preserve life, avoid abuse, prohibit assisted suicide
c. Conflict:
i. Right to refuse medical care and control over end of life process in an era
of prolonged age v. government interest in protecting autonomy (Rochin
line of cases)
ii. Resolution–Missouri may legitimate seek to safeguard the personal
element of this choice through imposition of a heightened evidentiary
standard.
vi. Washington v. Glucksberg (1997): Although there is a constitutional right to refuse treatment,
there is no such right to die. Proposes a framework for substantive due process claims.
1. Washington statute bans assisted suicides as homicide. Challenge that assisted suicide is
a liberty interest protected by due process.
2. Unconstitutional: state has demonstrated a rational basis (interest in preserving life) to
uphold the ban.
a. Conflict:
i. Patient autonomy and bodily integrity v. state interest in preservation of
human life.
b. Substantive due process analysis:
i. (1) Is the right here fundamental?
1. Rooted deeply in the nation’s history and traditions?
2. In determining fundamental rights we look to the legal tradition
and rights implicit in the concepts of ordered liberty.
ii. (2) If the right is fundamental…
1. Then it can only be infringed on through legislation narrowly
tailored to achieve a compelling state interest.
iii. (3) If the right is not fundamental…
1. The law challenged should be treated in the same fashion as an
economic/property liberty: government can intervene if there is a
rational basis to impose the limitation.
c. Applied:
i. There is no rooted right for assisted suicide.

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 ii. Because the asserted right to assistance in committing suicide is not a
fundamental liberty interest protected by the due process clause, the
Washington law was to be upheld so long as it met a rational basis test.
1. The ban reasonably serves many legitimate interests.
a. Interest in preserving life, interesting in avoiding
depressive suicides, interest in preserving ethics of
medical profession, in avoiding manipulative suicides.
d. Issues:
i. The analysis accepts as given the Cruzan fundamental right to the denial
of medical care. As Scalia explains, that right is not rooted in history and
traditional at all, just gleaned from some court precedent.
1. Maybe too high a standard for classifying rights which allow only
for government intervention upon a compelling interest. Screen
out rights we want to keep.
ii. In Sacramento v. Lewis, Court declined to follow the flowchart and use
the “shocks the conscience” subjective balancing test instead.
iii. Fractured opinion: O’Connor, Ginsburg, Breyer take position that if a
plaintiff could show agony that can be avoided by assisted suicide, the
Rochin holding of a right to avoid agony could render the law
unconstitutional.
iv. Souter: the inquiry of a fundamental right should not be confined to
history. The underlying commitment of due process is to avoid arbitrary
impositions at odds with broad and evolving tradition. Interest in dignity
is of fundamental import, rooted in tradition and concepts of personal
autonomy. Therefore, need to assure that the government interference is
not an arbitrary one.

Substantive Due Process–Noneconomic, fundamental rights

Three Tests:
1. “Shock the conscience”: substantive due process forbids laws that shock the conscience in their
violation of rights we value deeply.
a. Provided a distinction between economic regulations and interventions to bodily harm.
b. 4th Amendment: U.S. v. Lanier, Sacramento v. Lewis, Rochin
c. 8th Amendment: Bell v. Wolfish; Estelle v. Gamble
2. Balancing: balance the state interest against the magnitude of the right infringed to discern due process
a. 4th Amendment: Winston v. Lee
b. 8th Amendment: Youngsberg v. Romeo
3. Levels of scrutiny approach: rights deemed fundamental, rooted in the Constitution, history, or
traditions, are an aspect of the “liberty” protected in the due process clause.
a. (1) Is there a fundamental right?
i. Carolene Footnote 4: Judiciary will defer to the legislature unless there is discrimination
against (1) “discrete and insular” minority; (2) political process; (3) infringement of a
fundamental right.
ii. Originalists: fundamental rights are limited to those liberties explicitly stated in the text
or clearly intended by the framers.
iii. Holmes: Fundamental rights include those liberties that are deeply rooted in this Nation’s
history and tradition.
iv. Lochner, Chase: Natural law principles should decide what rights to protect as
fundamental.
b. (2) Is the right infringed?
c. (3) Is the government’s action justified by a sufficient purpose? 45
i. If fundamental, the government must present a compelling interest to justify an
infringement.
ii. If not fundamental, only a legitimate purpose is required for the law to be sustained.
h. Substantive Due Process and the Second Amendment Right to Bear Arms
i. As codified in the Bill of Rights, some form of gun ownership is, according to the Carolene
footnote, undeniably fundamental. The question has been one of interpretation: what
fundamental right does the Second Amendment protect? An individual right to possess firearms
or the collective right to possess firearms for purposes of service in the militia?
1. A well regulated militia being necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed.
ii. US v. Cruikshank (1875)
1. 2nd amendment not incorporated to the states with privileges and immunities clause
because they are not privileges and immunities of national citizenship
2. 2nd amendment was mere recognition of existing rights
3. Could be suggested that Cruikshank supports an individual right based on this
iii. D.C. v. Heller (2008): The 2nd Amendment confers an individual right to possess a gun in the
home for self-defense purposes. The D.C. absolute prohibition is unconstitutional, though some
regulation could be allowed.
1. D.C. law says it is illegal to have an unregistered handgun, and you may not have
registered handguns in the home. Legal to have a rifle and shotgun in the home so long
as dismantled or guarded by a trigger lock. Challenged as an infringement of the textual
second amendment right to private gun ownership. No lack of clarity about fundamental
nature of the right (not rooted in general notions of liberty, traditions, and history), but
what is protected by due process is unclear.
2. Unconstitutional: 2nd amendment grants a fundamental individual, not collective,
right to gun ownership which is a liberty protected by due process.
a. Common understanding of the text at the time
i. The prefatory clause cannot negate an operative clause. The former does
not limit the latter but rather announces a purpose.
ii. Supported by evidence of pre-existing right:
1. British law, which informs American law, included the right.
a. SFK: at stake in the British law was the right of parliament
not to have its militia disarmed by the King. Therefore, the
right supposed was actually collective rather than private.
2. 7/9 state constitutions mention a personal right to bear arms for
self-defense.
a. SFK: pre 1791, it was 2/4. Not so lopsided.
iii. “Keep and Bear arms” by definition includes the right to have a gun at the
door when someone is breaking in.
b. Postratification commentary refers to a right of self-defense.
c. In the English Declaration of Rights, they had a codified right to have guns
d. Part of the objection they had was the monarchy taking away guns
e. Some states had bills of rights that made reference to right to keep and bear arms
i. Some of these provisions use language referring to militias and arms for
common defense, others refer to arms for individual rights, some use both
ii. My thoughts about this- if an individual right is found in the common
defense language at a federal level, why did states feel a need to
separately state an individual right in addition to the common defense
language?
f. Pre-Civil War cases and post-Civil War legislation confirm that the Second
Amendment was not meant to be limited to militia service.
i. African Americans needed a right to protect them from subordination.

46
 ii. SFK: 19th century legislation should not shed much light on the meaning
of the amendment at the time of drafting.
iii. Freedman’s bureau act- constitutional right to bear arms included
iv. Suggests a public understanding at the time of an individual right,
perhaps an evolving historical tradition
1. Suggests living document, allowing US v. Miller’s militia
conception to make sense for the time
3. Dissent: text, history, precedent, scope tied to a collective right to keep arms as a
predicate to participation in the militia.
a. Majority ignores the first half of the Second Amendment.
i. “A militia being necessary to the free state…”
b. Reviews the same sources as Scalia–English history, experience in the states,
post-ratification commentary–lead to the opposite conclusion.
i. England: King v. Parliament re: a militia, US: central government v. state
government and militia. Additionally, the English tradition does not
support a natural right because it limited gun ownership to “Protestants
suited to purpose.”
ii. NH proposal that was shot down- “never disarm any Citizen”
iii. Post-legislative law doesn’t cast much light on framer’s intent.
iv. Precedence: all prior decisions of the court concerning the second
amendment found that it protected only a right to have guns for the
purpose of militia service.
1. U.S. v. Miller (1939): the right to obtain and travel with a sawn
off shotgun is not linked to a right to participate in the militia.
v. States have split between a collective right to self-defense and an
individual right suggesting that the source is at best neutral.
vi. In drafting the Constitution, Madison had proposals from 3 states; 2
contained a collective, 1 contained an individual and collective. Choosing
the collective draft should be read as choosing the collective while
rejecting the individual.
4. Why this is ideologically strange:
a. Scalia, believing in a dead constitution, could find the strongest evidence not at
the time of the framing (which supports the collective right) but as part of the
evolving understanding of the polity and states. If he was to pick up the living
constitution, he could happily invoke the evolving understanding to include
individual rights, but as an originalist he is stuck manipulating adverse data.
i. Scalia has also said that the Courts should not be involved in substantive
review. The SCOTUS, no more than any 9 random people from the
phonebook, can speak to fundamental rights. Cruzan.
ii. But, this speaks to an explicit Constitutional right so maybe no so
inconsistent.
b. Stevens, believing in a living constitution, has to deal with the eradication of the
collective right and the evolving belief that there is an individual right.
5. Lingering questions:
a. Assuming this is an individual fundamental right, what level of regulation is
allowed? What level of scrutiny?
i. Scalia admits that there is a problem of handgun violence in the United
States, and some regulation must be allowed.
ii. Doesn’t perform a test, only says that an outright ban from the home
would fail constitutional muster.
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 iii. But admits that like most rights, the right secured by the Second
Amendment is not unlimited. We can still limit more “dangerous” guns or
“concealed” weapons in sensitive places. “Nothing should be taken to
cast doubt on the longstanding prohibitions of the possession of firearms
by felons and the mentally ill or firearms in sensitive buildings.”
1. On what basis? No explanation given for varying degrees of
permissible regulation. If longstanding prohibitions is key, then
isn’t a DC ban of 34 years enough?
b. Which arms are protected?
i. U.S v. Miller shows the protection of common use weapons but not those
weapons not typically held by law abiding citizens (exceptionally
dangerous). Those arms typically possessed by law abiding citizens for
contemporary purposes are protected as a fundamental individual
right.
1. Sawn off shot guns, no – but handguns are the quintessential
weapons for modern self-defense in the home. “Aim the gun while
calling the police.”
2. SFK: why use the contemporary understanding of proper weapons
(common use standard) when the analysis relies on an originalist
understanding.
3. Additionally, if the standard is the degree to which people possess
weapons then, if the government cannot restrict use, suddenly a
sawn off shotgun becomes common use (infinite regress).
ii. Breyer: Handguns are a traditionally protected right because handguns are
the common standard. Therefore, rational basis review to the
interpretation of the second amendment would allow for more regulation
to achieve a legitimate state purpose.
iv. McDonald v. Chicago (2010): Incorporates Heller’s interpretation of the Second Amendment
as a “fundamental” private right to the states.
1. Chicago law banning licenses for handguns.
2. Law is unconstitutional since the interpretation of the second amendment as fundamental
is incorporated to govern relations between citizens and states, localities.
a. If the private right is found to be “fundamental” then it should be incorporated to
the states through the due process clause of the Fourteenth amendment.
i. The court has incorporated some of the Bill of Rights to the states on the
basis that they are fundamental.
ii. After consulting history the same way Scalia did in Heller, the plurality
concluded that the right should be found to apply to state and local
governments through the due process clause,
v. Breyer, dissenting:
1. Argues against incorporation on the grounds that this is not a commonly understood
right as held. Alito provides a limited treatment of history.
a. Every state has gun control laws and regulates possession
b. No state has struck down gun control as conflicting with the state constitution
c. The way we define fundamental rights, according to Glucksberg is through
deeply rooted tradition and history. History doesn’t show that this is a
fundamental right.
VIII. Equal Protection Clause

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 a. Nor shall any State deprive any person of life, liberty, or property, without due process of law;  nor
deny to any person within its jurisdiction the equal protection of the laws

Pre-Warren Court: single-tiered Warren Court: two-tiered Burger/Rehnquist Court:

rationality–rational relation to a approach–rational basis review
legitimate state objective. (light scrutiny, statue usually
upheld) OR strict scrutiny
(generally invalidated).
Rational Basis Review: generally applies to statutes that draw distinctions along economic/social lines.
Consistent with post-Lochner deference to legislature when reviewing economic legislation.
 Applies to all classifications that are not based on “suspect” classifications (race, national origin,
alienage), and do not impair a fundamental right.
o Socioeconomic, age, disability, and sexual orientation
 Classification/distinction along these lines in law will be upheld so long as the government comes
forward with proof that it bears a rational relation to a legitimate government objective.
 Broad reading of legitimate purposes (even Administrative convenience) and classified means upheld
even with post-hoc rationalizations.
Intermediate Level Scrutiny: used for “quasi-suspect” classifications like gender.
 Statute drawn on the basis of gender will only be upheld if the means chosen are substantially related to
an important governmental objective.

Strict Scrutiny: Applies to any statute that draws distinctions based on a “suspect classification” including race,
national origin, or alienage.
 Classification upheld only if it is necessary to achieve a compelling state interest (“strict in theory, fatal
in fact.”
 Applicable to suspect classes:
o 14th amendment marks race as an inherently “suspect classification”
o Some classifications have been added to a “suspect class” warranting strict scrutiny
o Class subjected to such history of purposefully unequal treatment or political powerlessness that it
commands extraordinary protection from the majority. Fear of re-subjugation/shadow population.
o Carolene Footnote 4: “discrete and insular minority.”
o Immutable characteristics.
o Alienage, national origin added.
 Applicable to statutes impacting “fundamental rights” including right to vote, right to access courts, right
to interstate travel.
o Carolene F4.
o No fundamental right to necessities of life – food, shelter, and medical care can be distributed
unevenly without being subject to strict scrutiny.

b. Federal v. State Challenges

i. Since Brown, Court has relied on the EPC as a key provision for combating invidious
discrimination odious to a free society and for safeguarding fundamental rights.
ii. State inquiry:
1. Located in the 14th amendment, EPC allows judicial review of laws that make
distinctions on the basis of characteristics.
iii. Federal inquiry:

49
 1. No provision in the Constitution that says the federal government cannot deny the equal
protection of the laws.
2. Bolling v. Sharpe, equal protection applies to the federal government through the due
process clause of the 5th amendment.
iv. It is now well settled that the requirements of equal protection are the same whether the
challenge is to the federal government under the 5th amendment or to the state and local actions
under the 14th amendment.
c. Basic framework:
i. Is the government’s classification justified by a sufficient purpose?
1. Many government laws draw distinctions among people, giving rise to allegations of
emails of equal protection.
2. What constitutes sufficient justifications turns entirely on the type of discrimination.
ii. (1) What is the classification?
1. Classification exists on the face of the law, that is the law draws a distinction on the
basis of a particular characteristics.
2. Facially neutral, but there is a discriminatory impact or effect.
iii. (2) What is the appropriate level of scrutiny?
1. Strict scrutiny for discrimination based on race, national origin, or alienage.
2. Intermediate scrutiny for gender, nonmarital children.
3. Rational basis review for everything else. Burden is on challenger.
4. How to decide level?
a. Immutable characteristics warrant heightened scrutiny.
b. Ability of group to protect itself through political process.
c. History of discrimination.
d. Concern that the likelihood that classification reflects prejudice. Race is virtually
never an acceptable justification so thumb on scale of not allowed while
biological differences between men and women mean that there are more likely
to be instances where sex is a justifiable basis for discrimination.
iv. (3) Does government action meet the level of scrutiny?
1. Supreme Court often focuses on the degree to which a law is under inclusive or over
inclusive.
2. A law is under inclusive if it does not apply to individuals who are similar to those to
whom the law applies.
3. Over inclusive if it applies to those who need not be included in order for the
government to achieve its purpose.
d. 4 conceptions of equality
i. Rule of law- similar cases should result in similar treatment
ii. Equal worth and equal respect- justification cannot be framed in terms of hostility towards
people
iii. Equal “protection”- cannot benefit the interests of a single class- requiring the powerful to live
with the rules of powerless
iv. Protection of equal citizenship- preventing the creation of a subordinate caste
e. Principal Cases and Standards:
i. Slaughterhouse Cases (1872): the history of the 14th amendment discloses a clear purpose and
is exhausted by racial discrimination.
1. Only state laws within the purview of the EPC are those that discriminate against
African Americans.
2. 14th amendment, and equal protection clause, cannot be read apart from its highly
particularized context.

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 3. “In light of the amendments, we doubt that any discrimination not against Negroes
would come within the Equal Protection Clause.”
ii. Reasons to believe the 14th EPC extend?
1. Concurrent language: written in general terms, unlike the 15th which is expressly targeted
at African slavery.
iii. What is the virtue of equal protection?
1. To deny arbitrary actions and distinctions among groups.
2. To deny distinctions that treat one group as less valuable than another.
3. To allow some distinctions that are justifiable to achieve a legitimate end; differentiation
made on the basis of relevant criteria.
4. To make sure that similarly situated individuals are treated in a similar fashion.
iv. Evolution of standards:
1. REA/Fritz: “rational basis” review – legitimate state end advanced by rationally related
means.
a. Post-hoc rationalization permitted
b. Initial justifications permitted
c. Low bar; challenges almost never succeed and burden is on the challenger.
d. 16 to have a license; rationally related to a legitimate state end.
2. Korematsu/Bolling: “strict scrutiny” – compelling state end advanced by a narrowly
tailored policy.
a. Strict in theory, fatal in fact; often will fall since the government will not be able
to satisfy its burden.
b. Why “suspect”
i. Not a chosen characteristic, immutable.
ii. Irrelevant to the moral worth of an individual.
iii. Discrete, insular minority lacking political clout to overcome
discrimination.
iv. Visible component of race is widely burdened by stereotypes;
classifications solidify those.
v. Feeds feelings of inferiority between the races (“when the gov’t take off
its color-blind glasses, so do its people).
vi. Concern that classifications based on race are presumptively based on a
political distaste for a group; grounded in “animus.”
c. Facially neutral?
i. These are bad because they may reflect racial hostility, selective
affirmative indifference, and subtle work-around of equal protection.
ii. Discriminatory impact is insufficient to prove a racial or gender
classification. If law is facially neutral, demonstrating a race or gender
classification requires proof that there is a discriminatory purpose behind
the law. (Arlington Heights, Washington v. Davis, Hunter v.
Underwood).
d. Strict scrutiny also applies to…
i. Alienage (Graham)
ii. Denial/infringement on fundamental rights (Skinner).
3. U.S. v. Virginia: “intermediate scrutiny”–substantial connection to an important state
end.
a. No post-hoc rationalizations.
b. No administrative efficiency justifications.
c. Why not strict?
i. Original intent of EPC:
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 1. Civil war fought for the freedom of African Americans, not for
women’s equality (Slaughterhouse reading).
2. Scalia: sex-based distinctions were not present in the 14th
amendment textually nor important to the framers.
a. Undercut by fact that 5th amendment doesn’t have an EPC
and he regards that it does.
b. He doesn’t have a problem applying strict scrutiny to race
in all cases, even when protecting white people was not the
original intent of the EPC.
ii. Women are less discrete and insular (legislators have contact with
women); not a minority deprived of political clout.
iii. There are real differences; biological differences leave room for justified
distinctions in law. To the extent that impermissible discrimination is to
treat similarly situated individuals in a dissimilar manner, women aren’t
always similarly situated.
1. Separate men’s rooms.
2. Social differences do not ascribe a “badge of inferiority.”
f. Rational Basis Review
i. Minimal level of scrutiny that all government actions challenge under equal protection must
meet. Unless the government action is the type of discrimination that warrants intermediate or
strict scrutiny, rational basis is used.
ii. Two basic tracks for rational basis review–
1. Lindsey v. Natural Carbonic Gas Co. (1911): when the classification in such a law is
called in to question, if any state of facts reasonably can be conceived that would sustain
it, the existence of that state of facts at the time the law was enacted must be assumed.
To overturn is to find no other justification than arbitrariness.
a. Very similar to Lee Optical minimum basis.
2. Royster Guano Co v. Virginia (1920): “reasonable differentiation fairly related to the
object of regulation.” Not conceivable, post-hoc rationalizations but reasonable grounds
having a fair and substantial relation to the object of legislation so that all persons
similarly situated shall be treated alike.
a. Fritz minority: Congress has to actually evaluate the classification and its relation
to the purported end.
b. Brennan: if the distinction is for a public purpose, Congress has to articulate that
purpose; Court then grants deference to congress’ belief that the distinction
advances.
iii. REA v. New York (1949):
1. NY law prohibits advertising on trucks unless you own the truck and advertise your own
product. Challenged on the basis that it violated equal protection.
2. Government has legitimate purpose if it advances a traditional “police purpose”:
protecting safety, public health, or public morals.
a. The stated end of reducing traffic hazard, ensuring safety is legitimate.
3. The means are rationally related because the New York legislature “may well have
concluded” or “conceivable” found that those trucks who advertise their own wares on
their trucks may pose a traffic hazard.
a. Very deferential; a conceivable legitimate purpose can be identified in virtually
any legislation.
b. This is an example of an unfair law; it is enacted to help a particular group at the
expense of another (arbitrary) but it will be upheld under rationale basis.

52
 4. Analogous to court approach to a due process challenge in Williamson v. Lee Optical
(1955): though law seemed to have a clearly protectionist purpose (helping optometrists
and ophthalmologists at the expense of opticians, the Court upheld as conceivably
advancing public health.
5. Jackson Concurrence:
a. Equal protection jurisprudence should require more scrutiny than substantive due
process. It must be an effective guarantee against arbitrary government
b. To provide the same standard of deference fails “to provide either equality or
protection” since the standard rarely strikes down laws.
c. Equal protection laws should force laws of broad applicability; the broader the
law, the more likely it is to affect people with political clout, and the more
confident the Court can be that the decision-making body has a robust
justification for the law. Rational basis test which allows targeted discrimination,
incentivizes the legislature to discriminate against those that lack political power.
d. Equal protection as a separate doctrine can have advantages over substantive due
process, mainly in terms of flexibility. Equal protection can allow society to deal
with problematic conduct within the guardrails that intervention cannot be
discriminatory; substantive due process liberty constrains leaves ungovernable
the conduct that is objectionable.
e. Rational basis test should be more rigorous.
iv. U.S. Railroad Retirement Board v. Fritz (1980): cements hypothetical rationality – what
congress could have concluded is sufficient when conducting rational basis review.
1. Federal law designed to prevent retired railroad workers from receiving benefits under
both SS and railroad retirement system. Law allowed those who were already retired and
receiving dual benefits to continue to get them, but those who were still employed could
not get dual benefits unless 25 years working. Lead to very disparate and unsatisfying
outcomes in which similarly situated people are treated differently.
2. Majority
a. Passes rational basis test because the ends are legitimate (preserving the railroad
retirement system) and regardless of the reasoning in fact underlying the
legislative decision, there is a conceivable reason for the distinction.
b. The court accepted the government’s claim that the Congress could have
believed that those who retired had a greater equitable claim to dual benefits.
c. Willingness to accept any conceivable legitimate purpose as sufficient, even if it
is not the government’s actual purpose.
i. “The actual purpose behind a law is irrelevant and the law must be upheld
if any state of facts reasonably may be conceived to justify its
discrimination.”
d. Equal protection applies to federal government
3. Dissent
a. Too deferential; a challenged classification may be sustained only if it is
rationally related to the achievement of an actual legitimate governmental
purpose. Would not accept a post facto explanation
b. The end against which the rationality is to be judged should be then end actually
taken by the legislature, not just the one a government lawyer proferred as
pretense (Royster Guano).
c. Here, the purpose of the bill is to benefit union workers with political clout, since
they wrote the bill. Since the purpose of Congress was to protect unions, that is
not the legitimate end if professes. We cannot defer to a decision Congress never
made.
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 4. Stevens concurrence
a. Doesn’t have to be actual justification, but the distinction has to be based on
something a reasonable observer would view as impartial
v. New Orleans v. Dukes (1976): upheld an ordinance that banned all pushcart food vendors in the
French Quarter, except those who had continuously operated there for eight or more years. The
Court said that the distinction among vendors based on their length of work was legitimate
because “the city could reasonably decide that newer businesses were less likely to have built up
substantial reliance interests in continued operation.”
vi. Normative analysis:
1. Court has chosen the Carbonic lens to conducting rational basis test rather than Royster
Guano.
2. Brennan’s uniform purpose doesn’t make much sense in light of the divisive way in
which legislatures function with competing needs. No requirement that congress need
articulate its reasoning.
3. Doesn’t automatically follow that articulation of purposes will cement equal protection;
just allow for more explicit discrimination.
vii. Sea of deference, any islands of rigor for economic regulations? Failures of rational basis
review?
1. Exceptions for classifications based on animus; if it can be shown that the only
purpose being considered was a desire to harm particular individuals.
a. USDA v. Moreno (1973): failure of rational basis review; equal protect must at
the very least bar a congressional desire to harm a politically unpopular group on
the basis that such an end cannot constitute a legitimate government purpose.
i. Declared unconstitutional a federal law that excluded from participation
in the food stamp program any household containing an individual
unrelated to any other member of the household  express purpose to
discriminate against “hippies”.
b. But see NYCTA v. Beazer (1979): upholds NYCTA policy excluding meth drug
users from jobs. Rational basis for distinction in pursuing legitimate end of
public safety.
2. Invalidation of economic regulation on rationality review in the absence of animus
toward a disfavored group?
a. Logan v. Zimmerman Brush Co. (1982): an employee claimed that he was
terminated from his job because of physical disability. Since no plausible account
for differentiation could be brought up, Court struck down on grounds of
arbitrariness.
b. Allegheny Pittsburgh Coal v. Webster County (1989): West Virginia establishes
a general principal of uniform taxation so that all property is to be taxed in
proportion to its value. Allegheny County deviated from the state plan and
assessed a company at roughly 35 times more than comparable neighboring
property. It was arbitrary even if the ends were legitimate. the court concluded
that there was virtually no connection between the statute and its purposes, even
under rational basis review
c. Willowbrook v. Olech (2000): Olech sued village because it demanded a 33-foot
easement where everyone else only needed 15-foot easement. Dismissed as
violating EPC because entirely arbitrary and could not satisfy rational basis
review.
g. Early Scrutiny for Race Classifications
i. 13th amendment prohibits slavery; but it would not by itself secure the rights of former slaves
because of systematic discrimination by the South.
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 ii. 14th amendment overrules Dred Scott guarantees equal protection. Should be conceived to
overturn the structure of slavery and the idea of hostility toward particular individuals cannot be
legitimate government interest.
iii. Why heightened scrutiny for race classifications?
1. 14th amendment explicitly provides a right of exemption from unfriendly legislation that
implies resubordination, “badge of inferiority.”
2. Long history of racial discrimination makes it very likely that racial classifications will
be based on stereotypes and prejudices.
3. Relative political powerlessness of these groups to fight discrimination (Carolene F4);
prejudice against discrete and insular minorities tends to curtail the operation of those
political processes ordinarily to be relied upon to protect minorities.
4. Race is an immutable trait; unfair to discriminate against people for a characteristic
acquired at birth.
iv. Strauder v. West Virginia (1880): Classifications based on race.
1. West Virginia limits jury service to “white male persons who are twenty-one years of
age and who are citizens of this states.”
2. This would survive rational basis test–
a. Legitimate end to have competent juries advanced by the rational means of
excluding blacks from juries since coming out of slavery, blacks are too ignorant.
These are not similarly situated individuals.
3. Majority: excluding blacks from jury violates equal protection
a. 14th amendment adopted with recognition of the hostility against African
Americans; animus is not a legitimate basis for proceeding in a democratic
republic.
b. Requires not just explicit limits on explicit actions but preventing laws that
ascribe a badge of inferiority that are steps back toward slavery.
c. The guarantee of an all-white jury is a brand of inferiority
i. Distinction based in animus
ii. Step toward reducing blacks to the condition of subject race-
resubordination
1. Implies that adverse treatment on the basis of race is legitimate
2. The jury is a fundamental unit of legal decision-making and, if
excluded, private animus will have free reign.
a. Practically, all-white juries will not convict KKK
members.
3. Jury is a member of peers and excluding blacks implies that they
are not worthy of peerage.
d. Even though the majority argues that newly-freed slaves do not have equivalent
decision-making capabilities that would justify the law under rational basis
review, this is a violation of equal protection b/c of the context of the 14th
Amendment as an attempt to protect newly freed slaves
e. Having a jury packed with white people opens the probability that it will be
tainted by racism
f. Juries were a part of social life at the time
g. Discusses a difference between legal equality- which must be provided, and
actual equality, which he does not believe in (belives in white superiority)
h. Court does not make find problematic limitations against aliens and women.
i. Not in 14th amendment context; do not carry the stigma of subordination
of a racial group; do not carry the same baggage of suspect by the Court.

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 ii. But, 14th amendment phrased in universal terms; other populations can
have stigmas attached by discriminations not based on skin color.
v. Yick Wo v. Hopkins (1886): Facially neutral classifications based on alienage
1. City ordinance required that laundries be located in brick or stone buildings unless a
waiver was obtained from the board of supervisors. The plaintiff alleged that over 200
petitions by those of Chinese ancestry had been denied, but all but one of the petitions
filed by non-Chinese individuals were granted.
2. Rational basis?
a. On its face, this provision is neutral and rational. It achieves a legitimate state
end of public safety flowing from laundry fires in wood buildings.
3. (1) But, equal protection applies to non-citizens and they have right to bring 14th
amendment challenges
4. (2) The provision’s treatment of non-citizens, though not on the face of the provision,
violates equal protection.
a. In practice, all 200 Chinese nationals are turned down, 79/80 whites receive.
b. While the law is impartial on its face, its administration shows evidence of an
evil eye and uneven hand:
i. “Even if the law is impartial on its face, "if it is applied and administered
by public authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between persons in
similar circumstances.”
c. No reason the law exists except hostility, animus, toward a group on the basis of
national origin. Such hostility is odious to a free republic and not justifiable in
the eyes of the law.
d. Distinctions based on nothing but hostility towards a group (“invidious”) are
unjustifiable denials of equal protection.
vi. Plessy v. Ferguson (1896): Separate but equal
1. Louisiana law required railroad companies to provide separate but equal
accommodations for whites and blacks.
2. Held as constitutional and consistent with Strauder, Yick Wo
a. Unlike juries, this type of law is not a step toward re-subjecting African
Americans toward slavery.
i. In Strauder, “brand of inferiority’” reduces people to a status of servility
through exclusion.
ii. Here, white and black cars identical, no brand of inferiority, in fact
mandate equality.
iii. Statutes that imply a mere legal distinction between whites and blacks has
no tendency to destroy the legal equality of the two races or reestablish a
state of involuntary servitude
b. It is not rooted in hostility
i. State of Massachusetts acknowledges that racial distinctions are
appropriate.
ii. Congress that passed 14th allows segregation in schools in D.C.
iii. Northern segregation for the purposes of preserving public peace and
order; same rationale holds here–black and white citizens riding together
could result in skirmishes.
iv. Unlike Yick Wo, we have a legitimate justification (comparable treatment
in other northern segments, and practical interest in societal peace).
v. Legislation cannot cure natural affinities.
3. Problems
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 a. Court has normative misread the mandate of equal protection
i. It rested on undoing Dred Scott and the norm of racial distinctions in
total.
ii. Such distinctions are anathema to the 13th/14th/15th amendments. “The
Constitution is color-blind.” (Harlan Dissent). Racial distinctions are
impermissible as a matter of constitutional commitment.
iii. Enforcing social inequality with the law creates legal inequality.
b. Precedent is mischaracterized
i. Segregationist policies of the past that have evolved since.
c. No recognition of social impact of the exclusion
i. The real purpose is to exclude blacks from white, not whites from
entering cars.
ii. Hinges on equality, when exclusion can imply a badge of inferiority.
iii. Recognizes and facilitates racial hatred that is the presupposition of
slavery.
iv. Practical effect misjudged: historically, the doctrine of separate but equal
truly subordinated the black class. Propagated outwards to education,
hotels, courtrooms, theaters, parks, workplaces, voting, and armed
services.
4. Harlan Dissent:
a. The Constitution is color-blind and does not tolerate castes.
i. Bit problematic b/c racial distinctions to tear out subjugation “root and
branch” wouldn’t be allowed (CRA ’57, ’64 would be unconstitutional)
and maybe the 13th amendment too.
h. Race Specific Classifications that Disadvantage Racial Minorities
i. Korematsu v. United States (1944): classifications based on race are “immediately suspect”
and may be allowed only where there is a compelling government interest pursued by narrowly
tailored means.
1. Challenge to exclusion order requiring all west coast people of Japanese race to
detention camps for fear of a 5th column.
2. Japanese interment not a violation of equal protection, passes “strict scrutiny”
a. When racial distinctions are made, they must be viewed with the most “rigid
scrutiny.”
i. The means pursued must bear a “close and definite relationship” to the
government end.
ii. The gravest government interest must exist to justify the action since
racial classifications are odious to a free people.
b. Here, the government interest is truly compelling (according to the court)
i. Reflects a natural deference to military during times of war and risks to
national security.
ii. Army determined that this was a necessary action to protect.
iii. We all must accept a burden during times of war.
iv. Evidence of some disloyal Japanese and no expedient way to distinguish.
c. Arguably, the right test (and good moving forward) but administered poorly.
i. While national security is a compelling interest, the majority’s decision is
objectionable because the government used race alone as the proxy for
predicting who was a threat to national security and who would remain
free.
ii. Racial classification enormously over inclusive.
3. Murphy dissent:
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 a. When racial distinction is made, all that is needed is a “reasonable relationship”
and there is no such relationship here.
i. The ends are clearly racism and hatred of an insular community (farmers
pushed for it).
ii. The means are over-inclusive and not reasonably related. Cannot
discriminate against a whole group b/c of the guilt of a few.
b. Problems:
i. Allows for rational basis review of racial distinctions; Military could just
get better records to show a legitimate interest and rational reason to
detain them all.
ii. Such a standard will tolerate a lot of invidious discrimination.
iii. Not practical to dissent and stop the military machine; cannot second-
guess the military during this time of war.
4. Jackson Dissent:
a. Military will need to do things that are not strictly constitutional and court cannot
stand in the way with the stick of judicial review—too slow a process and
military needs deference.
b. But, we should not approve of their decision (though we cannot overturn it)
because such an approval will lead this invidious technique lying around as a
loaded gun to be used in the future.
5. Ex parte Endo (1944): continued detention of a citizen who is loyal is unconstitutional.
Military’s distinction is based on a proxy of loyalty, not on community hostility towards
race. Statutory construction not EPC
6. Hirabayashi: same thing for curfew
ii. The initial attack on “separate but equal”
1. Moving forward majority carries the day for half a century
a. Segregation in trains by “separate but equal” flows to the legitimacy of this
practice in schools.
b. Some success in litigation with respect to voting, property
c. Some successes attacking the equality component of separate but equal
d. By WWII, racial subordination is a permanent feature of the American landscape
i. Ironically, justification for the good war is that the Nazi system is based
on the notion of a system of race, where we are an “egalitarian” society.
2. Oyama v. California (1948): statue adopted by California that prevents individuals from
owning property if their parents cannot become American citizens (non-Caucasians)
violates the equal protection clause, citing strict scrutiny from Hirabayashi.
3. Shelly v. Kraemer (1948): strikes down exclusively white real estate covenants citing the
evolving aspirations of Americans.
4. Sipuel v. Board of Regents (1948): sending African Americans out of state for
segregated graduate education does not provide equality. Declaring unconstitutional
Oklahoma’s refusal to provide legal education for blacks while maintaining a law school
available only to whites.
5. Sweatt v. Painter (1950): instead of striking down Plessy, Court ordered a white
university to admit a black student on the basis that the schools were not obviously
equal.
6. McLauren v. Oklahoma State Regents (1950): once blacks were admitted to a previously
all white school, the university could not force them to sit in segregated areas.
iii. Brown v. Board of Education (1954): the nature of public education requires integrated
schools. Plessy was wrong because it was empirically problematic for the effects segregation
had on black children.
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 1. Separate but equal segregation is impermissible for its effect on public education in light
of its full development and its present place in American life throughout the nation.
a. Separate but equal is inherently inequal because of intangibles
b. Segregation generates a feeling of inferiority that is unlikely to be undone-
this is the social meaning of segregation
c. Historical study of 14th amendment is inconclusive to whether segregation in
education violates the EPC.
i. Could not anticipate the significance of education in modern society.
ii. Modern significant makes education as fundamental as voting
(Strauder).
d. State-mandated segregation inherently stamps black children as inferior and
impairs their educational opportunities.
i. Implies a badge of inferiority.
ii. Supported by psychology, literature, and academia.
iii. Importance of education to future development, and ensuring the “hearts
and minds” of children.
e. Problems?
i. A judgment that relies on social psychology relies on the whims of
academics who tend toward revision.
ii. Can find studies that refute such findings; reliance on them made the
decision vulnerable if future research came to opposite conclusions.
iii. Narrowly confined to schools.
f.
iv. Bolling v. Sharpe (1954): companion case to Brown that involved segregation in D.C. schools
controlled by federal government, not by states. Plessy was mistaken because it failed to
recognize the root evil in classifications based on race.
1. Unconstitutional as a violation of an implied Equal Protection Clause of 5th
amendment.
2. Unlike Brown, does not rely on social data, but instead employs a more universally
applicable strict scrutiny test from Korematsu.
a. Classifications based solely on race must be scrutinized with particular care
because they are contrary to the traditions of a free and liberal society.
b. The desire to accommodate invidious segregation and racial comfort is not a
strong enough government interest to justify legal discrimination.
i. Yick Wo: discrimination is rooted in hostility, imposes a brand of
inferiority, and constitutes a step towards resubordination of a group.
ii. Strouder: discrimination in education is analogous to an infringement on
political participation. When you root segregation deeper in the system of
civil life, it has political ramifications. The establishment of a system of
separation imposes a caste system.
v. Dawson-1956
1. No segregation in public resources like beaches and buses
2. These things are not important by themselves but as parts of a broader social meaning
3. Separate access to public services classifies individuals on the basis of race and the
community hostility is not a proper government objective
vi. Implementing Brown and Bolling “with all deliberate speed”.
1. Brown II: lower courts must proceed with ending segregation with all deliberate speed.
2. Demonstrates that true equality and integration won’t come about purely by removing
legal obstacles.
a. Local politicians stalled orders (wait until the beginning of school year)
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 b. End of de jure segregation by Courts does not end de facto in the south. Southern
politicians can meet Bolling, Brown requirements, but maintain segregation.
i. Allow kids to go where they want b/c none will transfer.
ii. Creative school districting since populations are stratified anyway.
c. Private racial hostility
3. Question is whether government should only cease odious discrimination, or has a duty
to effectuate integration in order to rectify the predictably unfair results of past
discrimination.
a. Bolling, Thomas, Scalia: 14th amendment only meant to invalidate government
discrimination, but cannot be used to force integration as that involves racial
distinctions. Constitution is color-blind.
b. Brown, Brennan, Marshall: separation, even in effect if not law, imposes a brand
of inferiority. The social reality does not change if de jure or de facto. Must
eliminate historical racial discrimination “root and branch.”
4. Between 1950-1960, number of desegregated school systems in the South is 0. Begin to
use non-racial decision-making to maintain the status quo.
5. Judicial power to impose remedies in school desegregation cases; where there has
been “de jure” segregation, school districts are not just required to cease
discrimination – because of the lasting effects of historical discrimination, they are
required to affirmatively remove segregation “root and branch.”
a. Griffin v. Prince Edward County (1964): declared unconstitutional a county’s
decision to close its public schools and to pay for children to attend segregated
white academies.
b. Green v. County New Kent (1968): free choice system not sufficient as it leads to
predictable segregation. We need articulated plans that espouse an affirmative
duty to take whatever steps necessary to create integration. Current system,
though de facto, has been scarred by racial segregation and functions as a
mechanism of inferiority. “Just schools.”
c. Swann v. Charlotte-Mecklenberg (1970): Undoing unconstitutional segregation
entitles district to take active steps (on the basis of racial distinctions), such as
gerrymanding, busing, or magnet schools where past segregation has caused a
current lack of integration. The court states that the obligation is to eliminate
de jure but not de facto segregation (address purposeful segregation rather than
segregation coming from facts which the government had no role)
d. Milliken v. Bradley (1974): limitation on affirmative remedies even for de jure.
i. A federal district court had imposed a multidistrict remedy for de jure
segregation;
ii. Struck down because imposing a cross-district remedy must be in
response to a cross-district constitutional violation.
iii. “Absent an inter-district violation there is no basis for an inter-
district remedy.”
iv. Marks the end of a push for full integration; de facto segregation has no
legal remedy.
6. Where segregation is not rooted in previous law…
a. In Northern systems, where segregated schools were not the product of state
laws, the issue arose as to what had to be proved in order to demonstrate an equal
protection violation and justify a federal court remedy.
i. Proof of racial separation is not enough; must be a constitutional
wrongdoing grounded in either laws mandating segregation (like above)
or evidence of intentional acts to segregate schools.
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 b. Keyes v. School District 1 (1973): absent laws requiring school segregation,
plaintiffs must prove intentional segregative acts affecting a substantial part of
the school system. Only a constitutional violation if there is proof of
discriminatory purpose.
i. Differen ce between de facto and de jure segregation is intent to
desegregate
ii. If plaintiffs can show segregative effect and intent to a one part of system,
burden to show lack of segregative intent on other parts rests on school.
They have to show this instead of showing a simple logically, racially
neutral explanation
iii. Therefore, facially neutral conduct may still be a constitutional violation
vii. Two approaches
1. Strauder/Brown: purpose of 14th amendment was to disestablish slavery manifested in
segregation. The aim of law should be to eliminate those policies whose OUTCOMES
have the effect of branding groups as inferior, generating racial hostility, or constitute
steps towards re-instilled subordination.
a. Segregation is a deep-rooted system who’s OUTCOMES are still present and
have the quality of reducing African Americans toward servility. Therefore,
government must be involved in affirmatively eliminating segregation “root and
branch.”
2. Yick Wo/Bolling: equal protection requires treating people in similar situations
similarly and not on the basis of racial classifications; the evil is not the outcome of the
DECISION but the METHOD in which it is made (“evil eye, unequal hand,”
Constitution is “color-blind”).
a. Segregation ceases to be a constitutional issue once Congress stops making
DECISIONS through the prism of race.
b. This allows for a maintenance of the status quo and de facto segregation in the
South.
c. Even in the absence of segregation in the North, a simple cessation boundary is
to leave untouched social structures that were generated. Integration will simply
never materialize.
i. Facially symmetrical race-based laws
i. Racial classification that exists on the face of the law but that burdens both whites and
minorities.
ii. Anderson v. Martin (1964): whether or not state of Louisiana can require that candidates to have
race characters on the ballot; applied equally to white and black. Struck down as impermissible
because it places the power of the state behind racial classifications that induce hostility; making
race a significant government factor a the precipice of voting.
1. Although it applies to both races, it is clearly motivated by race biases.
iii. Loving v. Virginia (1967):
1. Anti-miscegenation statute makes criminal inter-racial marriage.
a. State argues that the law does not deprive of equal protection since it affects both
whites and Negroes.
i. The fact of equal application does not immunize the statute from the very
heavy burden of justification for distinctions based on race.
b. Though the 14th amendment surely did not target interracial marriage, the history
of the 14th is not dispositive (Brown).
c. Strict scrutiny applies, custom is not a compelling interest when it rests upon
invidious racial discrimination.

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 iv. Palmore v. Sidoti (1984): deemed unconstitutional a state court’s denying a mother custody
because she had married a person of a different race.
1. The state court had concluded that the child’s best interest would be served by awarding
custody to the father b/c the child might be stigmatized for living in a biracial household.
2. Strict scrutiny failed
a. Compelling interest in the best interest of the child, and the state has come
forward with data supporting its means.
b. Burger does not set aside the findings as “clearly erroneous” (indeed the stigma
is a reality), but sets aside the conclusion as one that would perpetuate the very
racial hostility at work in society.
c. Compelling interest, but acceding to racial prejudice is impermissible as a basis
for making racial distinctions of this sort.
3. Classifications based on race are more likely to reflect racial prejudice than legitimate
public concerns
4. Private biases cannot be given direct or indirect effect by the law
v. Johnson v. California (2004):
1. Prison double-cell slotting policy based on race to avoid inter-gang cell housing during
initial 60-day detainment period while trying to make permanent assignments. African
American inmate challenges as a moral, rather than concrete, harm.
2. Strict scrutiny applies to every case of race distinction to “smoke out” invidious ones.
Especially needed where government power is “at its apex.”
a. Compelling state interest in limiting gang violence advanced by a narrowly
tailored policy that uses race as a proxy for gang affiliation.
b. Not motivated in any way by racial animus, or for arbitrary purposes of
discrimination.
c. Struck down as not narrowly tailored; there are other ways to achieve the state
interest that do not rely on racial classifications as a proxy for gang affiliation.
i. Even where no taint of racial subordination, where there is not hostility,
no cognizable harm, and a compelling state interest, still must choose
alternatives to race if they are available or else not sufficiently narrowly
tailored.
3. Compelling state interest and demonstration that the racial distinction is necessary to
achieve the state interest
4. The denial of prisoner’s rights under Turner does not apply to racial classification
j. 1964 Civil Rights Act
i. Title II- public accommodations
ii. Title IV- desegregation of schools
iii. Title VI- no exclusion for race, religion, or national origin
1. Lau test
iv. Title VII- no employment exclusion for race, religion, national origin, or sex
1. Griggs test
k. Facially neutral laws with a discriminatory impact or with discriminatory administration
i. How to deal with facially neutral laws that are administered in a manner that poses a disparate
impact and whether that violates equal protection.
ii. Pure application of impact analysis –– disparate impact infers discriminatory intent
1. Yick Wo: facially neutral law because the facts who establish an administration directed
so exclusively against a particular class as to warrant and require the conclusion that
whatever may have been the intent of the ordinances, they deprive equal protection.
2. Griffin v. Prince Edward: racially neutral but obvious purpose behind closing schools
was to prevent desegregation.
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3. Guinn & Beal v. United States (1915): because necessary effect of law is to discriminate
on the basis of race, the law violates the equal protection clause.
a. Oklahoma admitted to Union upon agreeing to 15th but amends its constitution
(by referendum) to provide a literary test. Grandfather clause excuses the
requirement if someone in your family was allowed to vote before 1866 (15th
amendment enacted).
b. Unconstitutional
i. Text facially neutral, but the requirement will have a discriminatory
impact and the clear import of the 1866 date is to purposely discriminate
on basis of race.
1. Year after 15th amendment and the 1866 Civil Rights act;
choosing this date incorporates the racist state of affairs pre 1866.
2. Purpose is to discriminate between illiterate whites and illiterate
blacks.
4. Hunter v. Erickson (1969):
a. Akron adopts a fair housing ordinance to protect against racial discrimination.
No housing ordinance can be adopted dealing with racial discrimination without
a public referendum. On its face, racially neutral.
i. Racial discrimination is “constitutionally suspect” (Bolling) and subject
to rigid scrutiny (Korematsu).
ii. This amendment makes it harder for people for people to get the law’s
protection from racial biases than it does from other threats.
iii. This process only impacts minorities, since a referendum can’t harm a
majority, and only minorities are looking for fair housing ordinances.
1. They maybe could have had all city ordinances subject to majority
vote, but they do not.
2. Adding this burden just for protections from racial biases adds a
hurdle just for those seeking protection from racial discrimination.
3. The 14th prevents a distinction whose reality falls upon the
minority.
5. Lau v. Nichols (1974): Denying non-English-speaking people access to English lessons
has a disparate impact, violates Civil Rights Act.
a. Non-English Speaking Chinese citizens in SF sue school system for not teaching
them English, saying it deprives them of equal access to education. Ct. of Apps.
said they have exactly the same access but fewer tools, and “every student brings
to the starting line” different tools.
b. Violates the Civil Rights Act; Constitutional question not reached.
i. Not teaching English in public education has the effect of discriminating
against those who don’t speak English, who are inevitably going to be
other races and aliens (national origins).
1. Rooted in historical animus and a rotten foundation.
2. Denial of equal opportunity implicates a denial of equal
protection.
ii. Unlawful discrim. can occur even when it is not intended, per Civ Rts
Act delegation to HEW Sec’y.
1. Equates affirmative discrimination with selective indifference to
disparate impacts.
2. Identical treatment can be considered deprivation of equality.
iii. Avoids answering 14th Amendment Question.
6. Normative issues with pure impact analysis–
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 a. Some distinctions are decidedly not unconstitutional
b. Equal protection clause is concerned with stopping discriminatory acts by
government (Bolling), not in bringing about equal results.
c. Countless laws might have some discriminatory impact given the enormous
inequalities (choosing bank bailouts over helping poor – disproportionately
minority – homeowners).
d. Laws benefitting minorities would have to be overturned–when constitution takes
off its colorblind glasses, so do people).
e. Civil Rights statutes can, and often do, allow violations to be proved based on
discriminatory impact without evidence of a discriminatory purpose. For
example, Title VII of the 1964 Civil Rights Act allows employment
discrimination to be established by proof of discriminatory impact.
f. Griggs v. Duke Power Co (1970): Burden on employer to show that a
distinction in hiring bears a “demonstrable relationship” to successful job
performance.
iii. Switch to requiring a discriminatory intent
1. Washington v. Davis (1976):
a. Applicants for the police force were required to take a test, and statistics revealed
that blacks failed the examination much more often than whites (57% to 13%).
b. Constitutional: proof of discriminatory impact is insufficient to show the
existence of a racial classification. Racially disparate impacts, standing alone, do
not trigger strict scrutiny.
i. 14th amendment equal protection is intended to prevent official conduct
discriminating on the basis of race which implies a racist intentional
motivation.
1. Basic equal protection principle that an invidious quality of law
must be traced to a racially discriminatory purpose.
ii. Precedent has shown that a law must be racially discriminatory not just
racially disproportionate in effect to warrant strict scrutiny.
1. Strauder: all white jury is const, but law guaranteeing
discrimination is.
2. Wright: gerrymandering case in which challengers lost because
couldn’t show intent to discriminate.
3. School Deseg: dividing remedies on the basis of former
discriminatory intent (Swann but See Keyes “root and branch”).
iii. Strict scrutiny is not available unless we see an invidious purpose behind
the racial distinction
1. Disparate impact is evidence, but not proof, of invidious
discrimination.
2. If no evidence, then rational basis is appropriate: “it is untenable
that the Const. prevent the government from seeking to upgrade
its employees.”
a. Without discriminatory impact, the legitimate interest is a
good police force pursued through a rational basis of an
exam.
iv. Concern about a pure disparate impact analysis- slippery slope because
most things have disparate impacts and defining what the interests of the
minority communities are
c. Stevens:
i. Impact and intent are in principle an appropriate distinction.
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 ii. But notes that proving intent is really hard to achieve in practice.
1. Often, impact is the best indicator; “normally the actor is
presumed to have intended the natural consequences of his
deeds.”
2. Arlington Heights v. Metro Housing (1977): two-step test is the current method for
determining invidious intent for facially neutral laws with disparate impact.
a. Challenge to a city’s refusal to rezone a parcel of land to allow construction of
low and moderate-income housing. The plaintiffs alleged that this had a
discriminatory effect in excluding blacks from the city. Court outlined the current
standard for determining invidious intent; but upholds the requirement of proof
of discriminatory intent.
b. Housing board decision Constitutional.
i. (1) Is the discrimination racially motivated, or, is racial
discrimination a substantial or motivating factor behind he law?
1. (A) First, the impact of the law may be so clearly discriminatory
as to allow no other explanation than that it was adopted for
impermissible purposes
a. Show a statistical pattern that can be explained only by a
discriminatory purpose…(Gomillion, Yick Wo)
b. This category is going to be limited; such cases are rare.
Absent a pattern as start as Gomillion or Yick Wo, impact
alone is not determinative and the Court has to search
elsewhere.
2. (B) History surrounding the government’s actions
a. Could reveal a history of official actions taken for
invidious purposes.
b. Shed light on purposes.
c. Guinn, Prince Edward County
3. (C) Legislative history
a. Contemporaneous statements by members of the body,
minutes of its meetings, or reports
b. SCALIA in Edward v. Aguillard (1987)  this is an
impossible task. Where do we draw from, how do we even
know this is the inquiry? Statues do not come equipped
with purposes.
ii. (2) If racially motivated, burden shifts to government to prove that it
would have taken the same action without the discriminatory
motivation.
1. Version of strict scrutiny; government must come forward with
proof of a compelling interest greeted by a narrowly tailored
means.
2. If the government does prove that it was not the but for cause,
than rational basis review
3. If they cannot disprove that it was a but for cause, than strict
scrutiny
3. Hunter v. Underwood (1985):
a. Alabama lie denied the right to vote to anyone convicted of a crime involving
“moral turpitude.” Effect disproportionately affects blacks 10x at first, then 1.7x.
Dist. Court found no invidious intent (substantial or motivating racism behind the
law) to trigger the burden shifting. In the face of overwhelming evidence that it
65
 was part of a racist history, declined to find intent. Appellate court set this aside
as clearly erroneous.
a. Unconstitutional; agrees that trial court erred in finding no racial motivation
i. Historical:
1. Testimony, historical experts, all showed that the Alabama
Constitutional Convention of 1901 was part of a movement that
swept the post-Reconstruction South to disenfranchise blacks.
ii. Legislative:
1. Delegates not secretive: “President of Convention” to establish
white supremacy in the state.
iii. Oral Argument:
1. Meant to discriminate against poor black and white people not just
blacks
2. First, this might not be ok
3. Second, an additional purpose to discriminate against poor whites
would not render nugatory the purpose to discriminate against all
blacks.
b. Since proof of intent was provided, the government has the opportunity to
demonstrate that it would have taken the same action regardless of race.
i. Oral argument demonstrated that race was a motivating factor and the bill
would not have been adopted in the absence of this racial motivation.
4. Castaneda v. Partida (1977): Local jurisdiction is 79% Mexican American and only 34%
chosen for jury on a state procedure that uses “good character” as a distinction. Facially
neutral. Gross statistical disparities constitute prima facie proof of discrimination,
resulting in the shift of the burden of proof to the state to rebut the but-for claim.
5. Batson v. Kentucky (1986): A discriminatory use of peremptory challenges by a
prosecutor denies equal protection. Jury exclusion through preemptory challenges;
problem is that this challenge by definition has no purpose to achieve and is facially race
neutral. But preemptions based on race or gender are motivated by discriminatory intent
and have a discriminatory impact. Applies a mini Arlington test…
a. In any jury selection procedure, once one party has engaged in a series of racially
disparate strikes, the burden passes to them to articulate a non-racial basis for
those strikes.
b. Presumption of evil eye and uneven hand unless persuasion of non-
discriminatory intent. Trial judge rules.
6. Massachusetts v. Feeney (1979): not enough that government took on an action with
knowledge that it would have discriminatory consequences; must choose a course of
action at least in part ecause of, not merely in spite of, its adverse effects upon an
identifiable group.
a. MA statute gave preference for jobs to veterans. Over 98% male veterans, so the
result was substantially discriminatory in its effect against women.
b. Not a gender classification because facially gender-neutral and there was no
proof that the state’s purpose in adopting the law was to disadvantage women.
c. Really looking into the invidious intent to determine whether it was a
“substantially motivating factor.”
7. Texas Department of Housing and Community Affairs v. The Inclusive Communities
Project, Inc. (2015): Allows disparate impact claims under FHA.
iv. Notes on disparate impact
1. One can infer racial hostility from degrees of disparate impact

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 2. Impact of disparate impact laws fall on minorities (among other reasons for having
disparate impact track)
3. Court in Griggs, Lau, and ICP and Congress in statute- requires that the disparate impact
be necessary to achieve legitimate interests and if it is, they must find a racially neutral
approach
a. Alternatively, legitimate purpose, necessary to further the purpose- intermediate
scrutiny
4. Griggs, Lau, and ICP dealt with statutes and allow disparate impact suits
5. Hunter v. Erickson had disparate impact analysis
6. Washington v. Davis
a. Requires discriminatory intent
b. Disparate impact may be the basis for concern but not the sole evidence for a suit
7. Once there is proof that race was a motivating factor, the burden shifts to the defendant
to show that the same law would have been enacted without this invidious purpose
8. Problem with this approach
a. The same statute could be constitutional in one place but unconstitutional in
another
b. What if the state passes the statute again after it gets struck down?
9. Batson uses similar burden shifting approach for jury pool racism
v. Generalized test
1. Is the distinction motivated by a desire to discriminate against a race or national origin?
a. Is the impact of the law so clearly discriminatory as to allow no other explanation
other than that it was adopted for impermissible purposes?
i. Yick Wo
ii. Gomillion
iii. Castaneda
iv. Rare; racism more subtle these days..
b. Is the history surrounding the government action evince invidious purpose?
i. Guinn
ii. Griffin v. Prince Edward
c. Does the legislative or administrative history evince invidious racial purpose?
2. If the plaintiff produces evidence of a discriminatory purpose, the burden shifts to the
government to prove that it would have taken the same action without the discriminatory
motivation.
a. If the Court accepts the government’s justification and rejects the claim of
discriminatory purpose, only rational basis review is used.
3. Virtues of the test
a. Identifies and punishes racist purposes
b. May eliminate stigma – facially neutral could be less stigmatic, though
advantageous to minorities.
c. Lets courts go after truly invidious discrimination while limiting judicial
intervention.
4. Issues with test
a. STEVENS: really hard to do; rarely will such a motivation be expressed, and
benign purposes can be articulated post hoc. One intends the outcomes of one’s
actions.
b. Evidentiary difficulties
c. Racism is often unconscious
i. Given the history of discrimination and current socioeconomic
circumstances that remain because of racial classifications, exclusion
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 without explicit classification may have same impact as the exclusion on
a racial basis.
ii. The aspirations of the 13th, 14th, 15th amendment cannot be achieved.
d. Equal protection should be concerned with the results of government actions (de
facto) and not just their underlying motivations.
e. Harder even now with Iqbal.
l. Affirmative Action; Eradicating the Lingering Effects of Racism.
i. Eliminating Discrimination “root and branch”
1. At first, racially conscious decision-making was ok (required) to root out discrimination
where it had existed previously de jure or de facto
a. N.C. v. Swann: disregarding race was unconstitutional in a system that needed to
eradicate previous legal discrimination.
b. Washington v Seattle School Board: a state initiative that prevented de-
segregation using race-based busing was deemed unconstitutional.
2. Regents v. Bakke (1978):
a. UC Davis set-aside 16 slots in the entering class of 100 for minority students
after it saw that its traditional selection process yielded a white class. Challenged
by a white student who says his denial was a violation of title VI and equal
protection.
b. Held: unconstitutional; race may be considered to pursue a “compelling
interest” of diversity but quota system was not narrowly tailored.
i. Title VI- only covers what the Constitution does
ii. UC Davis justifications
1. Educational value in diversity
2. Remedying past discrimination
a. Amorphous
3. Increased doctors in underserved minority communities (unlikely)
4. Reducing the historical deficit of traditionally disfavored
minorities in the field of medicine.
iii. Liberal justices held that intermediate scrutiny was the appropriate test
for racial classifications benefitting minorities and would uphold the
program as passing.
1. A series of legitimate justifications (above) rationally linked to
classifications based on race.
2. We have cases on the books which have used race as a basis for
advancement in eradicating discrimination “root and branch.”
3. This is not like Strauder, this is not branding, this is not
subversion, none of the evils associated with discrimination are at
work here with whites who have no history of discrimination.
4. Therefore, strict scrutiny would be an inappropriate test.
5. We have evidence that the purpose of the 14th amendment was to
achieve racial equality rather than prevent it; same Congress
established the freedman’s bureau over the veto of Johnson,
adopting benign racial classifications similar to affirmative action.
iv. Conservative justices did not reach constitutional issue but would argue
for strict scrutiny. They rejected intermediate.
1. The constitution is color-blind
2. Race is inherently suspect and even benign classifications
stigmatize blacks.
3. Cannot use discrimination to cure discrimination.
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 4. The equal protection clause protects against treating individuals as
groups on the basis of race. Will reinforce stereotypes.
5. Immutability
a. It is fine to draw distinctions for legacy, sports,
intelligence, that do not run afoul of EPC.
b. But, race is immutable and does not allow people to e
treated by content of their character.
6. Race may be used in 2 ways only
a. Repair specific harm and bring someone to where they
would be if race was not a factor (Palmore)
b. Extreme public necessity
v. Powell moderate argued that strict scrutiny should be used.
1. It is permissible for race to be used as one factor in admission
decisions to enhance a valid compelling interest of educational
diversity, but set-aside program was invalid.
a. Invalid ends are (1) reducing historic deficit of minorities
in med schools; (2) reducing deficit of doctors in poor
areas; (3) countering the effects of societal discrimination.
b. These are either factually invalid, or too amorphous an
issue for UC Davis to attack alone.
2. Consider race among a bunch of other qualities as plus factors
(Harvard plan) ensures that we are treating individuals as
individuals, not as members of groups where distinctions are
odious to a society that treats people as equal.
3. Applies strict scrutiny but allows compelling interests here
4. Reducing historic deficit of minorities is not a compelling interest
because it is classification for its own sake
5. He requires an identified discrimination by UC Davis rather than
societal discrimination to pass compelling interest
6. Diverse educational experience could be compelling, but here, UC
Davis has not shown that the quota is the only way to do so- not
narrowly tailored
a. Harvard achieves diversity in a less intrusive way
3. Fullilove v. Klutznick (1980): brief shift left
a. Congress makes findings of racial discrimination imbedded in current bid-
accepting decision in subcontractor industry. Between 15-18% of contractors
nationwide come from minority groups but are employed at a rate of .15%.
i. Implicit racism b/c contracting is awarded based on past performance.
If you want a bid you have to put up a bond, which needs to be insured.
Bonds are insured based on past performance.
ii. Upheld a federal law that required 10 percent of feral public works
monies given to local governments be set aside of minority-owned
businesses (set-aside!).
1. Unlike Bakke, this is rooted not in societal discrimination, but
identified racial hostility in the construction industry.
2. Unlike UC Davis, Congress can calibrate nationwide concerns,
respond to political pressure, and effectuate the equal protection
clause through a set aside program where necessary to “root out.”
iii. Federal government can allow a disparate impact suit at a national level
because it can find society-wide discrimination
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 ii. The shift right
1. We are one generation more divorced from “American Apartheid.”
2. Richmond v. J.A. Croson Co. (1989): strikes down City of Richmond set-aside program
declared valid in Fullilove. Richmond institutes set-aside on the basis that a 50% black
city had only .67% contracts to minority businesses. O’Connor notes that Congress can
identify and redress the effects of society-wide discrimination, but states, cities, and
universities cannot. Additionally, not firm basis in evidence that the exclusion itself is in
fact rooted in discrimination. Does not met strict scrutiny b/c a set-aside program is not
narrowly tailored.
a. Race-conscious decision making only ok where there has been a
constitutional violation against a race that permits no other solution.
3. Aderand Constructors, Inc. v. Pena (1995): adopted an incentive based system that
provided that highway construction contractors would receive a payment if they hired
minorities; more narrow than a set-aside.
a. Struck down; incorporated Richmond “strict scrutiny” for 14th amendment to 5th
amendment EPC.
b. Distinctions based on race are subject to strict scrutiny in federal or state laws.
But, strict scrutiny is not strict in theory, fatal in fact. States can undo the effects
of past discrimination if its laws are narrowly tailored to meet compelling
interests.
c. Reverses Fullilove
4. Bakke approved diversity in the classroom as a compelling interest, but found UC Davis
policy not narrowly tailored.
5. Croson and Adarand appeared to view only remedial justifications as sufficient in the
contracting context.
a. SCALIA would confine racial remedies to identified victims of specific past acts.
iii. Grutter v. Bollinger (2003): lineal descendants make same arguments as in Bakke
1. Michigan Law School factors race into its admissions for students among many other
factors. White applicant rejected.
2. Although subject to strict scrutiny, Michigan policy is narrowly tailored (individualized
assessment, not quota) to advance a compelling state interest (robust classroom
diversity).
a. Dissent (Thomas, Scalia, WHR): racial distinctions are at odds with the
aspirations of equality and must undergo “strict scrutiny.”
i. Classifications based on race breed stigma and demean us all. Justice for
blacks is removing race from decision making (Bolling).
ii. Diversity is not a compelling interest; it serves no goals. Nothing short of
imminent violence or anarchy can justify the government in adopting
pernicious expedient of treating people on the basis of race.
b. Concurrence (Ginsburg, Breyer): law targeted at racial inclusion need to be
justified but only under “intermediate scrutiny.”
i. The fears underlying racial decision-making are not found here
(~Bolling).
ii. The effort is to root out the modern vestiges of state-sponsored racism.
Protect equality from racial hostility, subordination, and stigma (Brown,
Yick Wo).
c. Majority (O’Connor): strict scrutiny applies requiring a compelling interest and
narrowly tailored means but not as limited nor impossible as the dissent would
have (“strict in theory, not fatal in fact”).

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 i. Compelling interest in diversity in high-level education; remedying past
discrimination targeted at education is compelling.
1. Educational benefits of minority/majority mixing, and important
to cultivate a set of leaders with legitimacy and leave a path of
leadership open to talented ad qualified individuals of every race.
2. Limits the applicability of compelling diversity interest; maybe
only great law schools where leadership is cultivated.
ii. Narrowly tailored
1. Race must be used in a flexible “individualized” manner, not a
dispositive racial balancing, or quota.
2. Here: evaluates each individual on merits by considering as an
individual not as a group identity.
3. Incentives, holistic measures ok; quotas, set-asides, balancing not.
4. Other race-neutral options unavailable.
5. Does not unduly burden disfavored groups.
iv. Gratz v. Bollinger (2003):
1. Michigan undergraduate program assigns specific point-value for race.
2. Fails strict scrutiny
a. Compelling interest of diversity in education is legitimate
i. Opens up the compelling interests a bit more beyond law schools.
b. Not narrowly tailored
i. Bakke and Grutter require an individualized assessment of candidates’
qualities.
ii. Here: racial minorities get a free 20 points while other relevant
characteristics only yield 5. Weeds out individualized evaluations.
c. Dissent:
i. This is plenty individualized.
ii. This distinction between quotas, set-asides, and point values
(group/individual) is an untenable distinction.
iii. UM undergrad is doing the same as the law school but being frank and
candid about it.
iv. “equal protection cannot become an exercise in hiding the ball.”
v. Parents Involved v. Seattle School District (2007): Groups of parents in Seattle and KY suing
school district slotting systems because of race-based affirmative action programs.
1. Louisville: history of explicit discrimination. Under federal court supervision and
decree, went through desegregation that constitutionally used racial-decision-making to
remedy prior de jure segregation.
a. Swann, McDaniel: the effort to achieve desegregation by virtue of conscious
racial distinction has always been legitimate (even dissenters Thomas and Scalia
would agree).
b. Jefferson school district complied with decree, achieved unitary status, and
oversight ended. Recognizing de facto segregation still exists, they adopted a
voluntary system that explicitly racially balances in ways that was allowed
before.
2. Seattle: free choice but tiebreak system in which race is a dispositive factor, especially if
proportions are unbalanced. Majority ignores the factual context, but Seattle had
experiences with racial segregation achieved subtly. School board went out of its way to
site schools to generate segregation. Sued by NAACP and settled but bussing needed to
root out segregation.

71
 a. Washington State adopts an initiative to deny forced bussing. Seattle sues
Washington for its interference in desegregation. SCOTUS sides with Seattle.
b. Seattle School board replaces bussing with student choice that focuses on racial
inclusion so as to attack vestiges of previous discrimination.
3. Thomas:
a. Constitution forbids distinctions based on race; only justifications are violence or
anarchy. Where is this narrow justification located?
i. 14th amendment? No, equal protection in broad terms and has been read to
call for affirmative equal opportunity.
ii. Original public meaning? Freedman’s bureau, not limited to “color-blind”
decision-making.
iii. Evolving understanding that distinctions on the basis of race are odious
(Hirabayashi, Korematsu). Tough argument as a textualist.
4. Roberts, Scalia, Alito majority:
a. Racial classifications require strict scrutiny regardless of the circumstances
(builds off of Aderand, Croson, Johnson).
b. Compelling interest include remedying particularized past discrimination to bring
world to a color-blind place (where we would be “but-for” Jim Crow). While
diversity is a compelling interest in higher education, it may not be in grade
schools.
c. Regardless of what we consider compelling interest here, there is no narrow
tailoring.
i. Not individualized. Racial overlay explicitly considered.
ii. Non-racial alternatives have not been considered.
5. Kennedy:
a. Strict scrutiny is the appropriate test for race classifications by state
b. Compelling interest is not only diversity; but ensuring equal opportunity for
children and avoiding racial isolation. More open than majority to consider
compelling interests that justify race classifications.
c. Not narrowly tailored:
i. Seattle–non-white/white categorization is problematic.
ii. Louisville–has not come forward with a showing that its racialized
scheme is necessary to achieve the compelling interest.
6. Breyer:
a. The promise of Brown per conservatives is that government will not classify on
the basis of race.
b. For liberals, Brown mandated racially integrated educations by any means
necessary.
c. Precedent supports:
i. Swann: positive authority that racial integration was acceptable.
d. Laws that exclude are subject to strict scrutiny, but laws that include are subject
to a proportionality test.
e. Compelling interests in integration
i. Remedial: righting past wrongs
1. Elimination of remnants of segregation even after the expiration
of a government decree.
2. More factual investigation: Seattle de facto segregation has arisen
from racist yet subtle forces.
ii. Education is different
1. Diverse points of view; “hearts and minds”
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 2. Kids do better in integrated schools.
iii. Democracy
1. Pluralistic society
vi. Ricci v. DeStefano (2007): Hartford decides to change its testing to yield more minority
candidates. It is only where the Court can show that there is a strong basis in evidence that the
failure to change the test would result in disparate impact that government may make a racial
classification.
vii. Schuette v. Coalition (2014): Voters can ban affirmative action in public universities without
violating equal protection
viii. Overview: the government has had a historical hand in discriminating against minorities, so it
should provide a remedy to those effected. Everyone agrees.
1. What level of scrutiny should be used for racial classifications benefiting
minorities?
a. Bakke: no majority opinion, but intermediate scrutiny rejected.
b. Fullilove: no decision on appropriate scrutiny.
c. Croson, Adarand, Grutter, Gratz: strict scrutiny for racial classifications whether
they be invidious or benign.
2. What purposes for affirmative actions program are sufficient to meet the level of
scrutiny?
a. Remedying past discrimination
i. Fullilove: field or industry where there is proved discrimination, even if
not demonstrated that the particular entity violated the law, or that the
particular person suffered, can be a compelling interest to remedy.
ii. Croson: cannot be an amorphous claim of past discrimination in a
particular industry that can justify racial quota.
iii. Adarand: poses the idea that benign classifications cannot be justified
where there is neither proof of discrimination by the entity nor proof that
the particular recipients’ rights were violated.
b. Enhancing diversity
i. Bakke: diversity in education is compelling
ii. Grutter: for colleges and universities, diversity is a compelling interest in
creating a diverse student body.
iii. Parents involved: plurality nixed diversity as a compelling interest in the
context of elementary and high schools.
c. Enhancing services provided to minority communities
i. Bakke: rejected argument as not based in fact.
3. What techniques of affirmative actions are sufficient to meet the level of scrutiny?
a. Numerical set asides
i. Bakke: quota not allowed
ii. Fullilove: quota allowed only if needed to remedy clearly proven past
discrimination.
iii. Croson: quota not narrowly tailored; non-racialized options not explored.
b. Race as one factor in decisions to help minorities
i. Bakke: race as one criterion
ii. Grutter: race as one factor, among many, to benefit minorities.
iii. Gratz: no explicit points system.
iv. Diversity is a compelling interest in education and universities may use
race as a factor to ensure diversity, but quotas or numerical quantification
of benefits is not narrowly tailored.

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 4. So is the reason why something like the FHA can allow a disparate impact suit and
have a race-conscious remedy because they can find society-wide discrimination
under Richmond and Adarand?
a. Where there is a strong basis in the evidence that there has been a demonstration
of disparate impact that Congress has determined to be illegal, Congress can take
action and demand not acting in a way
b. But you can avoid disparate impact in ways that are race-neutral
c. Adarand- requires federal government to demonstrate compelling state interest
for a race-conscious remedy
i. Discrimination must be identified
d. Court will allow disparate impact as a compelling state interest upon support
from the evidence that it comes from identified past discrimination
e. See Parents Involved Kennedy concurrence- compelling state interest in
integration and avoiding isolation
i. Programs fail because they classify on the basis of race
ii. Facially neutral race-conscious remedies can be deployed as long as
solely not about race
f. For remedies to racially disparate impact, if we find illegal racially disparate
impact and race-neutral options won’t work, we can use race-conscious remedies
because they are narrowly tailored in that regard (I think that’s what he is
saying?)
i. Allows taking race into account in ICP
ix. What should the remedy look like and can it include classifications based on race?
1. Liberals (Brennan, Marshall, Blackmun, modern liberals)– Intermediate scrutiny for
benign ends.
a. Racial distinctions rooted in hostility that tend to subordinate minority groups,
that have the quality of marking with stigmas, are subject to strict scrutiny and
can only be justified by extraordinary circumstances. Nothing new.
b. Government actions that distinguish on the basis of race, but do NOT have the
quality of subordinating, stigmatizing, and excluding, and are directed to a
legitimate and important goal (such as educational diversity) that has been
stymied by past discrimination should Not be subject to the same level of inquiry
and suspicion.
i. Since the basis of strict scrutiny is suspicion that minority groups cannot
protect themselves in the political process (F 4), such a fear no longer
exists when the legislative action is to include minority groups in ways
that burden the majority.
ii. Still some concern because it is based on immutable characteristic (race)
that may stigmatize.
iii. Test: distinctions based on race to achieve benign results should be
acceptable only where an important and articulated interest remedying
past discrimination resulting in underrepresentation.
2. Conservatives (Scalia, Alito, Roberts, WHR, Stewart) strict scrutiny for benign ends
and diversity is not compelling
a. Core meaning of the EPC is that the law should be the same for blacks as for
white; equal protection means that similarly situated individuals should be
treated in the same fashion.
b. The harm of the 50s and 60s was the use of distinctions grounded in race; to
prevent going back to that we focus on constitutional DECISIONS not
progressive OUTCOMES.
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 i. Race decisions are bad for the body politic.
ii. Gov. should be the role model of decision-making (once the Constitution
takes off its color-blind goggles, so do people).
iii. Discrimination, per se, is the root evil to be avoided (Thomas)
iv. The Constitution is “color-blind”
v. “The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.”
c. A white man denied a benefit b/c of the color of his kin is entitled to demand
nothing less than a compelling state interest to justify his differential treatment.
i. The only compelling interests to be entertained are (1) imminent chaos
(Korematsu); and (2) remedying targeted, identified intentional
discrimination (Brown, School Deseg cases.)
3. Moderates (Kennedy, Powell, O’Connor) strict scrutiny for benign ends but some
such ends (diversity) are compelling
a. Strict scrutiny for race-based classification.
b. Government may act on the basis of race to remedy past discrimination where
there is a “strong basis in evidence” that there has been past discrimination. But,
must be targeted, cannot be a remedy of amorphous discrimination.
c. Remedying past discrimination with diversity as a goal is compelling if pursued
narrowly. Diversity, robust exchange of ideas.
i. Narrowly tailored means viewing people of race as individuals and
treating race as one of a multitude of factors to be considered in weighing
an applicant.
ii. Cannot be a quota system.
iii. Formalist distinction.
4. Current state of play
a. Strict scrutiny is used to evaluate all government affirmative action plans.
(Conservative).
b. But, compelling government interests are not limited to imminent threat
i. Redress of clear, but no amorphous, past discrimination.
ii. Pursuit of diversity.
Racial Liberals Example Cases Conservatives
Distinctions
The aim of law should be to Brown Bolling Equal protection requires treating
eliminate those policies whose Strouder Yick Woh people in similar situations similarly;
OUTCOMES have the effect of the evil is not the outcome but the
Basics interp.
branding groups as inferior, METHOD in which decisions made.
of 14th
generating racial hostility, or Only time where race may be present
constitute steps towards re-instilled in a state
subordination.
Facially Racial distinctions must be Brown, Strouder, Yick Woh, Racial distinctions must be narrowly
discriminator narrowly tailored to achieve a Bolling tailored to achieve a compelling gov’t
y law on basis compelling gov’t interest (strict interest (strict scrutiny).
of race scrutiny).
“Root and branch” with affirmative Swann, Keyes, Parents “Root and branch” with affirmative
School race-based distinctions where de McDaniel, Involved race-based distinctions for de jure
Desegregatio jure or de facto segregation (north Parents (Seattle) segregation (with stopping point), not
n or south). Involved segregation arising from de facto
(Dissenters) forces.
Facially Strict scrutiny for racial distinctions Loving, Palmore, Johnson, Strict scrutiny for any racial
symmetrical even when facially symmetrical Anderson classification
race-based
laws

75
Facially Since EPC is concerned with the Griffen, Guinn, Washington, Since EPC is concerned with
neutral laws outcomes of government actions Hunter, Lau Arlington decision-making, not impacts,
with a and not just underlying motivations, Heights, Hunter purposeful discriminatory intent
discriminator disparate impact is sufficient to needed.
y impact warrant strict scrutiny.

Intermediate scrutiny for racial Bakke Liberals, Croson, Conserv: Moderates:

distinctions benefiting minorities Fullilove, Aderand, Strict scrutiny for all Strict
Grutter/Gratz Grutter/Gratz racial classifications be scrutiny but
Racial
liberals Conservatives they invidious or more
classifications
benign; only potential
that benefit
compelling interest (1) compelling
minorities
imminent chaos; (2) interests.
remedying identified
discrimination
c. Means must be necessary to achieve that interest.
i. Applicants as individuals not as race quotas.
d. Plus minus factors, not quotas
m. Classifications based on alienage
i. Distinctions on the basis of alienage are suspect as long as not made by federal government
and outside the public/private distinction from Sugarman.
ii. Dred Scott: only white people can be citizens of the United States.
iii. Federal immigration laws wholly occupy the field and preempt state efforts to regulate
immigration.
1. 1882: Chinese exclusion act
2. 1889: Chinese deportation
3. 1921: Quota system keyed to the population of the United States in 1880
4. 1965: Previous federal regulations of immigration struck down by LBJ
iv. Constitution treats citizens different from non-citizens
1. Membership in gov’t; Article IV privileges and immunities; 14th, 15th, 19th amendments
refer to “citizens.”
2. BUT, Constitution did not define citizenship
a. Dred Scott: acknowledged no specific definition in the body of the Constitution
and fashioned its own on the basis of race.
b. 14th amendment to explicitly overturn Dred Scott: “all persons born and
naturalized subject to the jurisdiction are citizens of the United States.”
v. What about distinctions based on alienage?
1. Strouder v. WV: we can exclude non-citizen aliens from jury service.
2. Yick Wo: “the Fourteenth Amendment to the Constitution is not confined to the
protection of citizens…its provision are universal (no ‘person’) in their application.”
3. Wong Wing v. United States (1896): The Constitution protects individuals within the
jurisdiction of the US against actions by the government, even if they are not citizens –
and even if they are illegally present
a. Law says that Chinese non-citizens can be forced to work in camp prior to
deportation.
b. Unconstitutional
i. Congress can make decisions as to which aliens to admit, expel, revoke
without due process.
ii. But, aliens are entitled to the rights enshrined in the Bill of Rights
1. Yick Wo: aliens entitled to 14th equal protection
2. Text: 14th applies to all “persons”, making 5th, 6th amendments
applicable to “person” non-citizens.
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 iii. 5th amendment’s implicit equal protection clause protects aliens from
unjustified discrimination.
4. U.S. v. Wong Kim Ark (1898): all persons born in the united states are citizens, even if
their parents are ineligible for citizenship
a. U.S. born Chinese person travels with his family to China twice. On first return
he is admitted b/c he is a citizen. On second, he is denied entry on the grounds
that he is not a citizen.
b. A child of aliens born in the United States is a citizen “within the jurisdiction.”
c. Interpretive modes
i. Harlan:
1. Expatriate children are precluded from citizenship—i.e. “real”
Americans—while those born here by birth are citizens. Unlike
England, our philosophy of citizenship is individual connection to
America. Accident of birth in American territory is not enough.
2. Ark’s parents have maintained their connection to the emperor of
China. The mistake of his birth in the US does not disconnect that
link and forge it to the United States.
ii. Majority:
1. Flowing from feudalism, citizenship turns on presence in the
polity (excluding invaders, diplomats not “subject to jurisdiction.)
But, otherwise, citizenship is by birth.
2. Yick Wo precedence
3. Legislative history
a. Civil Rights Act of 1866 enshrined in 14th.
b. Chinese included in legislative conversations explicitly.
c. 14th amendment adopted to solidify that 1866 CRA could
not be overturned. Citizenship cannot be imported with
racial distinctions.
vi. Initial Cases Generally Allowing Discrimination
1. Court had been deferential to discrimination against aliens so long as it related to a
“special public interest.”
a. “Special public interest” included allocation of resources; opportunity to hold
property; states could reserve such resources to those members of the polity.
2. Truax v. Reich (1915): struck down an AZ law that required employers with more than 5
employees to hire at least 80% qualified voters or native-born citizens. Court said the
law was arbitrary and that “no special public interest could be shown to support the
enactment.”
3. But, otherwise, upheld distinctions involving citizenship which involved access to
something that involved being part of the resources of the local public.
vii. Emergence of Strict Scrutiny
1. Graham v. Richardson (1971): strict scrutiny applies to discrimination against aliens
a. Pennsylvania law made noncitizens ineligible to receive public assistance; AZ
law limited receipt of benefits to those who are citizens or had resided in the state
for 15 years.
b. Aliens as a class are a discrete and insular minority warranting heightened
judicial protection.
i. Immutable characteristic
ii. Unrelated to capacity to contribute to society
iii. History of hostility, shadow class to be exploited likes slaves.
c. Federal government preemption allows for distinctions to be made.
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 2. Sugarman v. Dougall (1973): to the extent that an office of the state includes exercise of
civic duty, the government is entitled to exclude non-citizens.
a. We recognize a state’s interest in establishing its own form of government, and
in limiting participation in that government to those who are within the basis
conception of a political community.
b. But, the flat out ban did not survive strict scrutiny because it had little relation to
the state’s compelling interest.
c. Must be an actual justification rather than a theoretical one
viii. Exception for Self-Government and the Democratic Process
1. Although strict scrutiny is generally the rule when the government discriminates against
aliens, the Supreme Court has carved an important exception: only rational basis review
is used for alienage classifications related to politics and self-government.
2. Cabell v. Chavez –Salido (1982):
a. Three Spanish-speaking California residents but not citizens tried to become
probation officers but were precluded by CA law requiring “peace officers” to be
citizens.
b. Meets rational basis test
i. States have the authority to structure their decision-making processes
(Gregory v. Ashcroft). Important component of federalism that states
structure their core political processes.
ii. Legitimate interest in defining the contours of their political community.
But Sugarman test helps construe the statutory means…
1. Is the regulation proper in scope, not over/under inclusive of
political positions? Arbitrarily small? Too broad (notaries
public, janitors)?
2. In this case, does it apply to a sufficiently important position
of actual discretionary power?
3. Here: this law includes peace offices who have the power to
arrest; and though some peace officers have an attenuated
connection to discretion, it is rationally related to the legitimate
state interest of defining a political community.
3. Matthews v. Diaz (1976): federal government’s special relationship with alienage
excludes it from strict scrutiny for distinctions in its
a. Alien couple wants Medicare, but Federal Medicare requires at least 5 years
inhabitance.
b. Exclusion is Constitutional
i. Arizona could not do this, but the United States has plenary power over
aliens.
ii. Congress is allowed to make policy distinctions.
iii. Under rational basis scrutiny, legitimate reasons for treating aliens
differently that are not invidious. Countervailing federal interests.
ix. Undocumented Aliens and Equal Protection
1. Plyer v. Doe (1982): since the purpose of the 14th amendment was to preclude the
creation of a hereditary underclass, excluding children of illegal immigrants to attend
public school is subject to heightened scrutiny because it risks the development of a
hereditary underclass.
a. Texas law discriminates against illegal aliens.
b. Is this the type of distinction that calls for strict scrutiny?
i. Illegal aliens are not a suspect class; the imposition of burden results from
a volitional, illegal act.
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 ii. They can be deported so its only logical that they can be excluded.
iii. Education is not a fundamental right.
c. But children
i. The children of illegal aliens do not choose such that their status is
immutable- punishes actions of the parents
ii. Linked to political powerlessness and a history of hostility
iii. Something special about education
iv. Justice Powell: creation of a shadow population is at odds with the 14th
amendment.
d. So an intermediate level of scrutiny which the law does not survive
i. No substantial government interest in either discouraging illegal
immigration or reducing burdens on schools.
ii. Court got from rational basis to intermediate through non-chosen status
(immutable); gateway to shadow population (invidious, odious).
e. No evidence in the record that undocumented students are a particular burden or
less likely to be a part of the Texas polity
f. Plyler was decided before the court allowed hypothetical justifications for lower
standards of review and the full development of rational basis, but it has never
been overturned
i.
n. Gender Classifications
i. Early Cases approving Gender Discrimination
1. Bradwell v. Illinois (1872):
a. Illinois law prohibits women from being licensed to practice law.
b. Cannot challenge as EPC violation since Strauder said EPC does not apply to
women.
c. Challenges on the basis of privileges and immunities.
i. Slaughterhouse narrow reading of the privileges and immunities clause
discloses economic opportunity to be a lawyer just as new Orleans
butchers had no privilege to practice butchery.
ii. Majority opinion written by Slaughterhouse dissent, so has to distinguish
1. Women cannot enter into contracts
2. Female occupations are repugnant to familial harmony
3. Natural timidity of women
d. Women were under the legal authority of their husbands
i. Could not make contracts in their own name. Therefore, she could not
make contracts with her clients
1. Rational but the underlying law is flawed and irrational in itself
ii. Court also wanted unmarried women to get married, so no exception for
them
e. No privilege and immunity to be a lawyer
f. Bradley concurrence- Separate spheres language overrides a valid privileges and
immunities claim
i. Generalizations based on the existence of prior discrimination- circular
reasoning
2. Mutter v. Oregon (1908): Upheld a maximum hours law for women employed in
factories.
3. Goesart v. Cleary (1948): upheld a MI lawrat that prevented the licensing of women as
bartenders unless the woman was the wife or daughter of a male who owned the bar
where she would work.
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 4. Hoyt v Florida (1961): upheld law that made men eligible for jury service unless they
requested and were granted an exception, whereas women were automatically exempted.
5. 20th amendment wipes out section 2 of the 14th, which says men, and denies
disenfranchisement of women.
6. 1964 CRA title VII eliminates sex distinctions in employment. 4% of state legislators are
female.
7. 1971 Equal Rights Amendment proposes which included women in the gambit of the
14th EPC. Does not get state ratification.
8. Title IX: educational institutions that receive federal funds may not discriminate on the
basis of ex.
9. 1978: Pregnancy discrimination act.
ii. Overarching equal protection principles apply imperfectly to sex
1. Strict scrutiny; reasons sex is like race
a. Astrictive immutable characteristic; not chosen and difficult to alter.
b. Irrelevant to moral wealth and capabilities of individuals to contribute to society.
c. Element of unfairness to penalize on the basis of average differences, if there are
any, between men and women.
d. Women and men are similarly situated, and any goals to distinguish them will
not be on individual but group and will reflect stereotypes.
e. Visual characteristic
f. Historically has been burdened with stereotypes
i. Natural timidity, stigmas
g. History of exclusion
h. Other identification; political exclusion
i. Subordinate class; prior discrimination
2. Rational bases; reasons sex is NOT like race
a. We clearly do not worry about separate but equal bathrooms or schools, why?
b. No constitutional hook with ERA failing. Men of the 14th amendment.
c. Not a discrete and insular minority; neither a minority or insular.
d. Relevant physical differences “real difference”
i. Physiological differences are manifest and on occasion relevant to legal
distinctions.
1. Gender or sex? Careful not to rely on social modern constructs but
sex-based classification.
ii. Exclusion is not invidious; does not stamp with inferiority.
iii. Searching for a standard
1. Reed v. Reed (1971): rational basis review
a. Idaho law specified the hierarchy of persons to be appointed as administrators of
an estate when a person died. If between man and woman, male was preferred.
b. Asks whether women and men are similarly situated and merely whether the
differentiation is arbitrary and therefore invidious (rational basis review).
i. Although there is an interest in eliminating hearings on the merits, it is
not rationally related to the means. Giving a mandatory preference to one
gender is the very kind of arbitrary legislative choice forbidden by equal
protection.
ii. Mere administrative convenience seems to fail a rational basis review.
Already a trend toward heightened intermediate scrutiny.
2. Craig v. Boren (1976): intermediate scrutiny employed to strike down distinctions
adversely affecting men.
a. Law in OK means men between 18-20 cannot buy 3.2% beer but women can.
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 b. Although traffic safety is undoubtedly an “important” government interest, the
court concluded that gender discrimination was not substantially related to that
objective.
i. 2% of men 18-20 are arrested for driving drunk. Cannot punish all men
on the basis of the rogue 2%.
c. Substantial connection to an important interest
3. Frontiero v. Richardson (1973): an attempt at strict scrutiny
a. Federal law allowed a man to automatically claim his wife as a dependent where
a women could only gain these benefits upon proof that her spouse was a
dependent.
b. Plurality took the position that gender classifications are inherently suspect and
must be subject to strict judicial scrutiny.
i. Historical marginalization of women
ii. Immutable characteristic
iii. Sex is rarely relevant to individual ability, capacity, or responsibility.
c. Government offers no justification; even if they did distinctions based on gender
solely for the purpose of administrative convenience is not allowed.
d.
4. Standard floats upward
5. MUW v. Hogan (1982): intermediate scrutiny applied
a. UM Nursing school does not allow men.
i. MI claims it wants to further women’s opportunities. Not important as not
the real goal; set up not to provide opportunities but during a time when
women were not allowed into other universities. It perpetuates a gender
stereotype.
ii. Rather than compensate for discriminatory barriers faced by women,
MUW’s policy tends to perpetuate the stereotypes view of ursing as an
exclusively woman’s job.
b. Birth of “exceedingly persuasive justification” standard.
6. JEB v. Alabama:
a. State uses its peremptory challenges to remove men from a jury, thinking women
would be more sympathetic.
b. Unconstitutional “we shall not accept as a defense the very stereotype the law
condemns.”
i. This would seem to pass rational basis review: entirely rational for the
state to exclude women to achieve the goal of prosecution.
ii. Rational though it may be, it is a stereotype that the law condemns even if
accurate and even if directed at men rather than women.
iv. Last word
1. United States v. Virginia (1996):
a. Virginia created the VWIL to excuse Virginia Military Institute’s gender
discrimination. VMI has a confrontational educational style.
b. Unconstitutional under the “exceedingly persuasive justification” standard.
c. Where there is a distinction on sex, state must come forward with an exceedingly
persuasive justification.
i. “At least” important government objective
1. Genuine and not hypothesized or ad-hoc
2. Tied to the time the decision was made.
ii. “At least” substantially related to this justification

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 1. Cannot be based on overbroad generalizations, self-fulfilling
prophecies, or denigration of either sex.
2. Cannot be used to perpetuated social or economic inferiorities of
either sex.
iii. Here:
1. State offers important objective that Virginia Military Institute
adversative system could not be effective if women were
admitted; would need to undergo substantial changes that would
remove the important goals of the program.
2. Not substantially related
a. Based on overbroad generalizations of women; there are
those with individual talents and abilities who could
compete.
b. Style of education perpetuates stereotypes (VWIL
component does not have adversative but comfort style
learning).
c. Not equal in tangible and intangible respects; the VMI
education is unique so qualified women are effectively
barred.
iv. Burden is on the proponent of the distinction to meet the test
1. Must show an actual, rather than hypothesized, distinction
d. Sex classifications can be used to compensate women for economic disparities
2. Guerra (1987)- purpose of PDA is to ensure equal opportunity, so provision of
pregnancy leave for women but not men is okay because childcare is a way that women
are pushed out and excluded from work
3.
v. Real differences. the requirement of discriminatory intent, and disproportionate impact
(Arlington Heights of Sex)
1. Are there any differences between men and women, however, that are “real” and not
stereotypical that therefore may be taken into account by laws distinguishing the two
groups.
a. In VMI, Virginia sought to rely on the physical incompatibility of most women
with the adversative method as a basis that too few women would join because
they were not fit. Court rejected this theory as not a “real” difference but one
grounded in stereotyping that failed to take account of exceptional women.
2. Gedulig v. Aiello (1974):
a. CA disability insurance provides benefits for those who cannot go to work for
reasons of physical disability. Excludes those who are pregnant, drugs addicts,
alcoholics, and sexual psychopaths.
b. Constitutional as no “invidious discrimination”/ no intent to discriminate.
i. This legislation does not trigger heightened scrutiny because it is facially
neutral.
1. Not a distinction facially drawn on sex like in Reed.
2. No indication that a facially neutral policy was adopted because of
its adverse effect on women.
3. While it is true that only women can become pregnant, it does not
follow that every legislative classification concerning pregnancy
is a sex-based classification like those in Reed and Frontiero that
implicate equal protection concerns.

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 4. Since not sex-based  rational basis: state has a legitimate
interest in choosing the policy that makes fiscal sense; fiscal and
actuarial benefits (administrative efficiency) justify the
distinction.
5. Doesn’t matter that “only women” (eyeroll) can be pregnant. Not
all people who are not pregnant are men. Men and women can
equally not be pregnant, therefore disparate impact.
c. Dissent
i. Though facially natural, this selection is ineluctably targeted to women.
1. Women contribute about 28% to the fund and receive back 38%
of the fund in benefits suggesting invidious intent.
2. While not all women are pregnant, the law distinguished between
persons capable of becoming pregnant and those not capable of
becoming pregnant.
ii. CA had singled out for less favorable treatment a gender-linked disability
peculiar to women while providing men full compensation.
iii. Therefore, a state’s interest in preserving the fiscal integrity of its
program could not justify an invidious discrimination.
d. Pregnancy Discrimination Act passed as a result of this case
3. Michael M v. Superior Court (1981):
a. CA statutory rape punished the male but not the female participant in sexual
intercourse when the female was under 18 and not the male’s wife. The
challenger was a 17-year-old male who had engaged in intercourse with a 15-
year-old female.
b. Constitutional but under intermediate scrutiny
i. This is a distinction that requires “sharper focus” (i.e. intermediate
scrutiny) since a gender-based classification raises questions that..
1. The legislature is making overbroad generalizations unrelated to
any differences between men and women (Craig, MUW).
2. Or which demean the ability or social status of the affected class
(VMI, Reed).
ii. But this classification recognizes real differences that sexes are not
similarly situated rather than an invidious intent.
1. Important state interest: prevent teen pregnancies; only women
can get pregnant
2. Substantial justification: a criminal sanction imposed solely on
males serves to roughly equalize the deterrents on the sexes to
create unwanted pregnancies.
a. A gender-based statute recognizes the fact that the
consequences of sexual intercourse fall more heavily on
the female on the male making targeting men the only way
to deter their actions.
b. Female is surely less likely to report violations of the
statute
c. Dissent
i. Furthers the outmoded sexual stereotypes regarding the special need to
protect young women’s chastity rather than to reduce the incidence of
teenage pregnancies.
ii. By punishing only men we disregard the autonomy of women and their
ability to make volitional choices.
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 iii. BUT, can’t avoid the fact that if we want to disturb incidence of rape, we
have to protect women.
4. Rostker v. Goldberg (1981):
a. Selective service regulation disallows women from registering for the draft.
b. Government has come forward with an important state interest and a showing
that the policy excluding women is a substantially related to furthering that
interest.
i. Raising and supporting armies is an important government interest
warranting extreme judicial deference.
ii. Men and women are not similarly situated for purposes of combat
service. The exemption of women from registration is closely related to
Congress’ purpose in authorizing registration.
iii. The constitution does not require “gestures of superficial equality”
c. Dissent:
i. Reflects stereotypes; no basis for concluding that excluding women is
substantially related to the achievement of a very important government
interest.
1. Government makes no claim that preparing for a draft of combat
troops cannot be accomplished just as effectively by registering
both men and women but drafting men only.
2. Administrative convenience of employing a gender classification
is not an adequate constitutional justification under Craig.
5. Personnel Administrator v. Feeney (1979):
a. Under MA law, all veterans who qualify for state civil service positions must be
considered for appointment ahead of nonveterans. 98% veterans in MA were
Male. Although facially neutral, the law “operates overwhelmingly to the
advantage of males.”
b. Constitutional importing the Arlington Heights standard requiring
discriminatory intent for facially neutral law.
i. Law providing a preference for veterans was gender neutral and that
discriminatory impact is not sufficient to prove the existence of sex-based
classification; there also must be proof of a discriminatory purpose.
ii. Two questions
1. Is the statutory classification indeed neutral?
2. Does the adverse effect reflect invidious gender-based
discrimination?
a. Impact provides an important starting point.
b. But it must be purposeful.
i. Not established for the purpose of
discriminating against women; the distinction
between veterans and nonveterans is not a
pretext for gender discrimination.
ii. The state intended nothing more than to prefer
veterans.
6. Nguyen v. Immigration and Naturalization Service (2001):
a. Difference in INS rules favor mothers over fathers. Children can becomes
citizens when they are born outside the United States to unmarried parents and
one of their parents is a US citizen and one is not. Statute required three
affirmative steps to be taken if the citizen parent is the father, but not if the
citizen parent is the mother.
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 b. Constitutional
i. Upheld as based on the significant difference between the gender’s
respective relationships to the potential citizen at the time of birth.
1. Legitimate government interest in ensuring biological relationship
between parent and child.
a. DNA testing could make this difference irrelevant.
2. Interest furthered in a substantial matter by a law that limits the
relationship between mother and child. Citizen mother and child
born overseas, the relationship inheres in the very event of birth
(mother present)
a. The same opportunity does not occur, as a matter of
biology, the incase of the unwed father.
c. Dissent
i. These government ends are grounded in the stereotype that mothers
generally develop more caring relationships with children.
ii. Not narrowly tailored; there are sex-neutral techniques that would work
here such as DNA testing.
d. Larger picture:
i. Gender classifications based on biological differences between men and
women are tricky; whenever the court purports to rely on biological
differences as justification for differences in treatment, raises eyebrows
that these differences are real or social constructs and whether that should
matter.
7. Problem- physical characteristics may be obvious but only of marginal utility, requiring
little accommodation in a gender-neutral way
a. Ex- provision of DNA tests in Nguyen
b. Physical characteristics might be an effective proxy for sex discrimination
i. Geduldig
8. Is sexual orientation or gender identity discrimination “sex discrimination”? Or is it
better addressed by way of animus?
vi. Summary of gender discriminations
1. Overall
a. US v. VA (1996) “full citizenship stature”
i. “Closes door/denies opportunity to men or women”
ii. IFF: “exceedingly persuasive justification”
iii. Burden on proponent
iv. “At least” ”important”
v. “At least” “substantially related”
vi. Actual not hypothesized
vii. Not “overbroad generalization of talents, capacities,
preferences”/“fixed notion”
b. “Physical differences are enduring” “Inherent differences are cause for
celebration but not denigration or artificial limitation on opportunity.”
c. Can:
i. “compensate for particular disability” Webster (1977)
ii. “promote equal opportunity” Guerra (1987)
iii. “advance full development” [n.7: single sex schools]
iv. But not “create or perpetuate legal social economic inferiority of
women” Goesaert (1948)
2. Level of Scrutiny:
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 a. Early cases approving gender discrimination
i. Bradwell
ii. West Coast Hotel
iii. Hoyt
iv. Mutter
b. Emergence of intermediate scrutiny
i. Reed
ii. Craig
c. Floating upward
i. Frontiero – strict scrutiny plurality
ii. MUW – “exceedingly persuasive justification”
iii. US v. Virginia – “exceedingly persuasive justification”
d. No basis applied
i. Rostker
ii. Michael M
3. Proving the existence of a gender classification
a. Face of the law
i. Craig
ii. US v. Virginia
b. Facially neutral, proving a gender classification requires demonstrating
discriminatory impact and intent
i. Feeney
c. When is it discrimination?
i. Geduldig
4. Gender Classifications benefiting women
a. Gender classifications benefiting women based on role stereotypes will not be
allowed
i. MUW
ii. Michael M
iii. Rostker
b. Gender classifications benefiting women designed to remedy past discrimination
and difference in opportunity are permitted
c. Gender classifications benefiting women can be based on “real” biological
differences.
i. INS
o. Other Classifications and the Scrutiny they Require
i. There is an infinite variety of ways that governments draw distinctions among people. Any of
these laws can be challenged as denying equal protection.
ii. Illegitimacy: intermediate scrutiny
1. Reasons for heightened scrutiny–
a. Astrictive characteristic, immutable, and not chosen, traditionally marginalized
b. Not the same as slavery, not a historical underclass
c. Illegitimacy does not carry an obvious badge, or approached the severity or
pervasiveness of the historic legal and political discrimination against Negroes.
d. Stevens: treat under rational basis scrutiny and strike down discriminatory laws
as irrational.
2. Matthews v. Lucas (1976): treats distinctions on the basis of legitimacy as analogous to
sex: a statute can be sustained if it is substantially related to an important state interest.
a. Most distinctions are invalidated under intermediate scrutiny.
iii. Age: rational basis
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 1. Reasons for heightened scrutiny–
a. Not chosen, but not permanent.
b. Elderly are not discrete and insular (active in gov’t)
c. Subject to stereotypical presumptions, but not a pervasive opinion of less worthy
d. We have arbitrary cutoffs on the basis of age for some programs.
i. Proper for rational basis; the democratic legislature needs to make a cut-
off and administrative ease is an appropriate means.
2. Massachusetts Board of Retirement v. Murgia (1976): upheld a state law that required
police officers to retire at age 50. Since physical ability generally declines with age,
mandatory retirement at 50 serves to remove from police service those whose fitness has
presumptively diminished with age. This clearly is rationally related to the states’
objective.
iv. Drug-dependency: rational basis
1. NYCTA v. Beazer (1979): upholds NYCTA policy excluding meth drug users from
jobs. Rational basis for distinction in pursuing legitimate end of public safety.
v. Wealth: rational basis
1. Reasons for heightened scrutiny–
a. Not born into it; quality of not-chosen on the part of children
i. Plyler  Children cannot choose their parents.
b. Not politically powerless
c. Not immutable  American dream
d. Sense of pervasive hostility not there
2. San Antonio School District v. Rodriguez (1973):
a. Texas relied on local property taxes to pay for public education. The result was
that poor areas were taxed at high rates, but still had little to spend on education.
Wealthy areas could tax at low rates and had a great deal to spend on school.
Plaintiffs argued that the disparity in funding discriminated against the poor.
b. Discrimination against the poor does not warrant heightened scrutiny
i. Rational basis review which this clearly passes.
ii. Heightened scrutiny is inappropriate
1. Does not ascribe a badge of inferiority.
2. This is not really discrimination against people who are poor but
people who live in districts with low property tax assessments. No
animus present.
c. Larger picture:
i. Quantum approach to equal protection: settling classes into low,
intermediate, and strict levels of scrutiny.
d. Marshall dissent:
i. Quantum is not the way the world works; search for an appropriate
balance.
ii. Should not look at categories as discrete and fixed
iii. Weigh interest adversely affected and invidiousness on which
classification is drawn
1. How likely this is to be invidious (combo of political stigma and
impact on the future of the children)
2. Does not necessarily reflect social stigma but indifference but also
the prospect of class based subordination
p. Distinctions that are problematic not because of suspect classifications but because the classifications
are often based on animus or moral disapproval.
i. Disability: rational basis test but heightened awareness
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ii. City of Cleburne v. Cleburne Living Center (1985):
1. Respondent wants to create a hospital for mentally retarded. City denies the zoning
permit.
2. Rational basis is appropriate
a. Observe that lots of legislation benefits the mentally disabled
b. Not politically powerless; no history of maltreatment before the law
c. Any heightened scrutiny will put at risk legislation creating benefits for disabled,
will assume that the existence of legislative actions are not rooted in invidious
considerations
d. Cannot use a heightened standard as the Court of Appeals has suggested.
3. Purported government interest for requiring a special permit for the operation of a group
home for the mentally disabled
a. Property owners concerned with property values
b. Students might harass disabled
c. Floodplain; once every 500 years there is a flood
i. Not able to evacuate
d. Rational
4. Struck down
a. Rejected each justification as either not “legitimate” or that the law was not a
rationale way to achieve the goal.
b. Arguments were based on prejudices against the mentally ill and that indulging
such private biases is not a legitimate purpose.
i. Students from jr. high harassing them based on prejudices.
ii. Flood plain argument belied by its allowing facilities such as nursing
homes in the areas.¥
iii. Palmore: “Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect.”
iv. Yick Wo: evil eye and unequal hand
v. Moreno: vindicating the prejudices of others is not a legitimate state
interest
5. This was actually a more rigorous review than traditional under rational basis review.
a. The negative attitudes kicked up a searching scrutiny for invidiousness. Rather
than allow under inclusiveness and conceivable theories, the court struck them
down.
b. Lee optical would allow them to proceed one step at a time.
c. Stands for the idea that skepticism accompanies the degree to which there is a
proven instance of hostility regardless of the level of scrutiny the court purports
to operate in and whether or not there is a particularly important interest.
6. Marshall Dissent
a. Weigh the interest adversely affected against the “recognized invidiousness of
the basis of the classification.”
b. Contrary to the Court’s findings, mentally retarded have been subject to a tragic
history of discrimination warranting heightened scrutiny into acts targeted at
them.
i. Eugenics (Buck v. Bell)
c. The fact that there is legislation in favor of accommodation is indicatory of
changing social principles. Courts should look to changing social principles as
guidance for Equal Protection jurisprudence
d. Footnote in the dissenting opinion points out the issue of Carolene Products’
quantum theory.
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iii. Sexual orientation
1. Reasons for heightened scrutiny–
a. Long history of discrimination
b. Laws discriminating on the basis generally reflect prejudices and stereotypes
rather than any actual differences.
2. Romer v. Evans (1996):
a. Colorado initiative encouraged discrimination based on sexual orientation.
Colorado Amendment 2 repealed all state and local laws that prohibited
discrimination against gays, lesbians, and bisexuals. The popularly approved
initiative also prevented future laws to protect these individuals.
b. Unconstitutional
i. Applies rational basis review
ii. Motivated by animus against a politically unpopular group.
iii. Animus is not a legitimate basis
iv. No legitimate purpose for denying homosexuals the same use of the
political processes available to everyone else.
v. Imposed a broad and undifferentiated disability on a single named group.
1. Too broad and too narrow
c. Scalia dissent:
i. How can you tell animus from a popular mandate.
ii. Distinctions on the basis of sexual orientation can be made criminal in
Bowers v. Hardwick, so how can this law be problematic.
iii. To the extent that one is looking for a legitimate state goal, the police
power of the state extents to the protection of health, safety, and morals.
1. Amendment is an attempt to reserve traditional sexual mores
against the efforts of politically powerful minority groups to
revise mores through the use of laws.
iv. Protection of morals is within the authority of the people of Colorado.
1. The people of CO can decide they want to prohibit an activity to
which the Constitution is silent. They may decide they want to
prohibit, take a middle ground whatever as to regulations against
smokers, gamblers, carnivores, or even homosexuals.
v. One man’s animus is another’s family values.
d. Notes:
i. Changing the political process to make it more difficult for a minority to
achieve its goals is problematic. Hunter v. Erickson. Making it
impossible for City Counsel to protect against housing discrimination was
a violation of EPC so too is an intervention to make impossible for LGBT
pursuit of protection.
1. Scalia–lots of groups lose in a Constitutional battle (religious
enthusiasts run up against church and state, monarchists lose
against republicanism). Things getting more difficult don’t raise
an EPC claim.
ii. Kennedy:
1. Breadth of the program creates concerns of the subordination of a
hated group.
2. Caste and class legislation.
3. At odds with the aspiration of treating individuals on the basis of
merit.

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 4. Concern that this is an intervention inexplicable by anything but
animus towards the class it disadvantages; stigma, hostility. A
bare desire to harm a politically unpopular group cannot be a
legitimate state interest. (Moreno, Cleburne).
iii. Scalia response:
1. Impossible to analyze the animus of a large group of voters.
2. One man’s animus is another’s family values–particular moral
vision can be a state interest.
3. “Kulturkampf” probably a bad example as the Bismarck
government suppressed a religious group as immoral; that is not
legitimate in America Mr. Scalia.
4. Pat Buchanan “culture war”; we need to suppress homosexuals.
a. Knox at Alabama, people of Cleburne, people of Moreno,
Bismarck v. Catholics  all animus.
3. Lawrence v. Texas (2003):
a. O’Connor Concurrence–sodomy law is a violation of equal protection not of
substantive due process.
i. Bare effort to harm a politically unpopular group because moral
disapproval of a group is not a legitimate state interest.
ii. Criminalization is equivalent to treating a group as less worthy, subject to
stigma and subordination.
iii. Looks like a higher standard than rational basis review; in the presence of
a particular indicia of hostility, the Court should look more searchingly to
see whether the distinction is really rooted in hostility.
1. Careful with this because hostility can be easily recast as an
affirmative belief in morality. Hinging the sexual orientation
question on animus leaves it vulnerable to attack from
Conservatives that animus is merely morality.
2. Need higher scrutiny separate from a question of animus.
4. United States v. Windsor (2013)
a. Rational basis review of withholding marriage for heterosexuals (but not really
stated well and described in a way that doesn’t really make sense for it to have
rational basis review)
i. State has an interest in assuring that children are born into optimally
flourishing relationships.
ii. Interests of the child served by rationally related policy with its
distinctions.
b. But what is the real motivation? Can we find discriminatory animus (KAGAN)
c. Can it be shown that the federal government has no real interest in substituting its
definition of optimal relationships for the definition of the state that recognizes
the marriages.
d. SCALIA: cannot advance anymore that sexual orientation is a moral failing that
can be withheld on the basis of a legitimate state goal to preserve morality. It is
irrelevant to most legitimate government goals except marriage. Marriage as the
final frontier considering our historical notions of marriage as a moral
institutions. Also, criticizes Kennedy’s failure to state a standard of review.
q. Equal Protection and Fundamental Rights
i. If T  Government will take action X
1. Traditional EPC jurisprudent has looked at the level of analysis to be applied to T; the
group of people targeted by the government classification.
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 2. Usually, equal protection is used to analyze government actions that draw a distinction
among people based on specific characteristics or traits such as race, gender, and
disability.
ii. If T  Government will take action X
1. Sometimes, equal protection is used if the government discriminates among people as to
the exercise of a fundamental right.
2. The sin is not always the classification, but looks different depending on what right
is being allocated. It becomes an equal protection problem because the fundamental
right isn’t being given to everyone.
a. Plyler: allocating access to education.
iii. The use of equal protection to safeguard these fundamental rights was, in part, based on the
Supreme Court’s desire to avoid substantive due process in the wake of Lochner repudiation.
However, the effect is the same whether a right is deemed fundamental under the EPC or under
the due process clause: Government infringements are subjected to strict scrutiny.
1. The EPC approach tends to be used for things where there’s no DPC right, but it is
still a fundamental INTEREST. If it was a fundamental right, no one could be
deprived of it. Calling these things “rights” is a misnomer.
iv. Skinner v. Oklahoma (1942):
1. Oklahoma Habitual criminal Sterilization Act required surgical sterilization for
individuals who have been convicted three or more times for crimes involving “moral
turpitude.”
a. Are sterilization laws a violation of substantive due process? No, preserves Buck
v. Bell.
b. Trait classifies between chicken thieves and embezzlers. It is legitimate and
rational to make this distinction between recidivist and one-time criminals.
c. But, the application violates equal protection. Differential punishment for
sterilization raises particular concerns.
d. Since the right to procreate was a fundamental right, strict scrutiny is
appropriate under the equal protection clause to analyze the government’s
discrimination as to its exercise.
i. (1) This is a basic civil right; the right to procreate is a fundamental
interest.
1. Not a temporary deprivation, but a permanent deprivation of the
fundamental right to biological contribution.
2. Moral
3. Crucial element of human identity
ii. (2) Something about marriage and procreation raises concerns about
invidious discrimination against groups that is central to the animus that
is anathema to equal protection
1. Particularly sensitive to the issue of sterilization and political
respect as related to the eugenic practices of Nazis.
2. Exile of genetic groups from pool is odious, invidious, and causes
the disappearance of groups.
3. Need to treat with skepticism because of the overlap of invidious
motivations.
iii. (3) Distinction allocates the fundamental right along animus based lines
1. The use of “moral turpitude” suggests that the legislators are
discriminating the exercise of the fundamental right (T) against an
unpopular group on the basis of hostility.
a. Hunter v. Underwood
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 2. By requiring sterilization for recidivist criminals, we claim that
their offspring are not worthy of political inclusion; hostility
e. Applied:
i. Given the right, and the heightened scrutiny, there is a problem with the
distinction made between offenses (“intrinsically the same quality of
offense”).
f. Note
i. Use of the logic of Buck v. Bell by Nazis might have changed attitudes
about eugenics by 1942
v. 1942-1964, Court extends the equal protection clause to protect other fundamental rights such as
access to the judicial process.
1. Griffin v. Illinois (1956): whether or not Illinois can require those who appeal criminal
convictions to pay for transcripts. The opportunity to defend oneself is a basic civil right
and cannot be denied on the basis of wealth. The right allocation and the nature of the
classification do not survive strict scrutiny muster.
2. Douglas v. California (1963): whether or not a state has to provide counsel on appeal in
serious criminal cases. No obligation to provide counsel across the board but in this
situation where individuals cannot afford counsel, it is a denial of the fundamental-right
version of the EPC to only give counsel to those worthy.
3. Trend- no unfair allocation of criminal punishment by wealth
4. Discrimination in an area of fundamental importance by wealth is not allowed.
r. Voting Rights
i. There is nothing in the Constitution that protects a right to vote in state elections. States could
impose their own requirements. But then the 14th amendment happened.
ii. For federal elections, qualifications should be the same as those the state provides for the most
numerous branch of the state’s legislator. A1S2
iii. Court uses equal protection clause to protect other fundamental rights such as voting.
1. Heightened skepticism about interventions into voting rights.
2. No federal right to vote; no constitutional guarantee.
3. Voting mostly left to the states and they develop literacy, interpretation, character tests
as a qualification for voting.
4. To impose a limitation on the wide berth of state authority, 15th amendment forbids
states from using race or previous condition of servitude as a basis to exclude. 19th does
the same with respect to sex.
a. But short of overt classifications, states appear to have authority to qualify
voting.
5. Limitations on the value of one vote are subjected to heightened scrutiny (Reynolds)
6. Lassiter v. Northampton County Board of Elections (1959):
a. North Carolina statute conditioned voting eligibility on a person’s ability to read
and write.
b. State elections are bound by the EPC but qualifications on franchise are
constitutional so long as they are rationally related to a legitimate end. Literacy
tests, or other measures of race-neutral qualifications (age, previous criminal
record) are rationally related to the legitimate end of intelligent ballot use.
i. Premised on two assumptions: literacy tests are race neutral in purpose
and effect; literacy test meet strict scrutiny.
ii. History of literacy tests indicates that motivated to exclude blacks (AL)
iii. Does not pass SS–illiterate voters can vote.
c. Lassiter certified the racist voting practices all over the South.

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 d. Literacy tests are constitutional although they have been outlawed by federal
statute (VRA); Supreme Court upheld these laws as a valid exercise of
Congress’s powers under §5 of the 14th amendment.
iv. 1964 Civil Rights Act + 24th Amendment
1. Unconstitutional to exclude from the franchise those who do not pay the poll tax.
2. State legislatures find other ways to minimize unpopular groups.
a. Redistricting to dilute votes of inner-city groups.
3. Reynolds v. Sims (1964): voting is a fundamental right; re-districting is subject to strict
scrutiny.
a. Alabama legislature adopted a system diluted the votes of poor and blacks in
urban Mobile to make worth same amount as those in a rural county.
b. Invoking Skinner, the allocation of fundamental interests to certain groups
is subject to a higher level of scrutiny per the EPC.
c. The right being allocated, voting, is a fundamental interest:
i. Preservative of other rights (Yick Wo).
ii. Basic to the definition of a republican form of government; democracy
makes no sense if state chooses at whim those who can participate.
iii. To the extent that voting is debased, citizens are diminished in stature.
Those who are not participants in the political process suffer a brand of
inferiority, an impugning of their status as a citizen.
iv. Voting is a basic right, population is the basis of districting schemes. As
nearly as practical one man’s vote must be worth as much as another.
d. Doesn’t matter that the Senate is a violation of one person, one vote. That came
out of a federal compromise by the Framers and not applicable to the states.
e. Note- One person, one vote does not prevent gerrymandering.
v. 1965 Voting Rights Act
1. Prohibits voting devices that have the intent and affect of excluding African Americans
a. Once proof of disparate impact (state has >50% voting record in 1964 election)
triggers prohibitions against literacy, good character, other tests.
b. Triggers CRC federal oversight; obliged to have any changes in voter
qualifications pre-cleared by justice department.
2. Harper v. Board of Educations (1966): poll taxes are unconstitutional as a denial of
equal protection for all elections.
a. Franchise is a fundamental right because it is preservative of other rights (Yick
Wo, Reynolds).
b. Once the franchise is granted to the electorate, lines may not be drawn which are
inconsistent with the EPC.
i. Wealth, property is not germane to intelligent participation in elections.
Lines drawn on the basis of wealth or property are traditionally
disfavored.
1. Note that property is certainly deeply rooted in America by
tradition.
ii. Implicates invidious discrimination rather than a compelling state interest.
iii. Quoting Skinner, limiting voting to those who paid a poll tax is
impermissible discrimination on the basis of wealth or property.
3. Kramer v. Union Free School District No. 15 (1969):
a. State law restricts voting in school district elections to those who owned taxable
property or had children enrolled.
b. Strict scrutiny is appropriate where the state allocates voting to some and not
others (Harper, Reynolds)
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 i. Compelling interest to limit participation to those interested in school
affairs.
ii. Not permissible for the government to measure interests by property
ownership or the presence of children in the school system.
4. Court has upheld distinctions of the franchise on lines of residency, age, and citizenship.
While Court is using strict scrutiny, only wealth (poll taxes), property ownership,
dilution distinctions are found to fail.
5. McDonald v. Board of Election Commissioners (1969):
a. State law allowed absentee ballots only for those who had a disability that made
it impossible for them to get to the polls or those who would be outside the
county on the day of the election. The effect was to deny absentee ballots to
those who were in jail while awaiting trial.
b. Absentee ballot is not a fundamental interest.
i. The inmates were not actually being deprived of the franchise, it was just
more difficult; thus this did not involve government infringement on
voting, but a claimed right to receive absentee ballots.
ii. No need for heightened scrutiny, no violation of EPC.
6. Richardson v. Ramirez (1974):
a. 29 states deny the franchise to persons convicted of felonies or infamous crimes
even after hey had completed their sentences and paroles.
b. §2 of the 14th amendment provides that you cannot deny franchise to…except for
participation in rebellion, or other crimes.
c. Court upheld that once a person has been convicted of a felony, a state may
permanently deny the individual the right to vote.
i. Carves out the scrutiny entirely (no looking for compelling or legitimate
interests) because the amendment implicates the prospect of valid
disenfranchisement.
d. Dissent:
i. Whether or not one has previously committed a felony is not related to
voting and carries concern about invidious discrimination. This would fail
any category of review.
7. Crawford v. Marion (2008):
a. Indiana law requires photo ID to vote. Getting ID may be free, but requires travel
time and burdens to poor and disabled. Excludes 43,000 in Indiana without an
ID.
b. Upheld the facial constitutionality, but fractured opinion that do not advocate
strict scrutiny. Voter ID requirement not subjected to strict scrutiny because
generally applicable and without invidious intent.
i. Narrow reading of Kramer, Harper:
1. Strict scrutiny only applies for wealth and property distinctions,
which involve factors that traditionally consider EPC concerns.
ii. These are even-handed restrictions that have some relation to the
protection of the reliability of the system.
iii. Balancing test: balance the burden on the right to vote against the state’s
interest in preventing fraud.
1. Medium interest in avoiding voter fraud (despite no evidence of
such fraud).
2. Plaintiffs have not come forward with adequate information to
show that there is a real burden that might exclude them from
voting (ID is free! Reasonable acquiring).
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IX. Congressional Enforcement of the 13th, 14th, 15th Amendments
1. Basics
a. The three Reconstruction Amendments contain provisions that empower Congress to enact civil
rights legislation (enforcement clauses).
i. 13th, §2 Congress has power to enforce this article by appropriate legislation.
ii. 14th, §5 Congress has the power to enforce this article by appropriate legislation.
b. What is the scope of Congress’s power under these amendments? Is Congress limited to providing
remedies for violations of constitutional rights recognized by the Supreme Court; or may Congress
use its power under these amendments to adopt an independent interpretation of the Constitution,
even overruling Supreme Court precedent.
i. (1) “Nationalist perspective” Congress may use its 65 authority to expand the scope of
rights. (Katzenbach v. Morgan)
1. Casting a wider net with knowledge of capturing the small subset of invidious cases.
(Square diagram).
ii. (2) “Federalist Perspective” Congress cannot create new rights; Can act only to prevent or
remedy violations of rights, and such laws must be narrowly tailored (City of Boerne v.
Flores).
2. History of enforcement provisions
a. 13th amendment enforcement
i. 1866 CRA: adopts a series of provisions designed to enforce the freedom provided by the
13th amendment including §1982–forbidding discrimination in contracts, property on the
basis of race.
b. 14th amendment enforcement
i. KKK Act of 1871: provides private remedies to people deprived of individual liberties by
private parties in §1983.
ii. 1875 Public Accommodations Act: prohibiting discrimination on basis of race or color.
iii. 1875 Jury Exclusion Act: federal crime to exclude African Americans from juries.
3. How Court analyzes these enforcements; “Nationalist” or “Federalist”
a. Overview:
i. Early Cases–Nationalist/Expansive
1. McCulloch deference: although the amendment does not directly address this, it is
necessary and proper to enact this provision to enforce the [13th, 14th and 15th]
amendment.
ii. Current state of play–Federalist/Limiting
1. 14th amendment cannot create new rights. Congruent and proportional test.
b. Ex Parte Virginia (1880):
i. Prosecution of a judge who refuses to sit African Americans on his jury in violation of the
Jury Exclusion Act.
ii. State argues that the act is unconstitutional because it interferes with sovereign prerogatives
and federalism. Additionally, the 14th amendment does not address juries, therefore
Congress has no authority here.
iii. 1875 Jury Exclusion Act enacted per the §5 of 14th amendment is constitutional.
1. The standard of how much power Congress may exercise in the name of enforcing a
Reconstruction amendment is judged under McCulloch–whatever legislation is
appropriate, and plainly adapted to carry out the mandates of the 14th, is brought
within the domain of federal power.

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 2. Allays federalism concern by noting that every addition to federal power necessary
takes power from the states. The 14th expressly carved power from state sovereignty
on purpose.
iv. Implications:
1. Regardless of court switching theories, you can still provide remedies for violations
of established rights using the enforcement clause of the 14th amendment. So even
under the more restrictive “congruent and proportionality” test, this would pass.
2. Federalism point remains in force:
a. Notwithstanding the “commandeering doctrine” which limits Congress’s
power under Commerce, states can be required to exercise their sovereign
authority via laws passed through 13th, 15th amendments, because the
authority is understood as carving out power from the states.
c. Civil Rights Cases (1883):
i. CRA of 1875 provided that all person were entitled to public accommodations regardless of
race. Broadly prohibited private racial discrimination by hotels, restaurants, transportation,
and other public accommodations.
ii. In its enforcement power, can Congress forbid private individuals from discriminating on
the basis of race?
1. Act unconstitutional because Congress cannot regulate private behavior. No showing
that this is directed at counteracting state action.
2. As to the 13th amendment, Court recognized that it applies to private conduct; it
prohibits people from owning slavery; but that is limited to ending slavery, not to
eliminate discrimination.
d. Lassiter mandates that Courts must find invidious intent to knock down literacy tests. Difficult to
prove this on a case-by-case basis and frustrates the franchise of blacks (whack-a-mole). Congress
enacts VRA to affirmatively overturn Lassiter in the name of enforcement.
i. Once triggered by >50% voter turnout, prohibits the use of literacy tests and those literate in
Spanish but not English if those individuals have gone to school in Puerto Rico.
e. South Carolina v. Katzenbach (1966):
i. May Congress act only to remedy constitutional violations, or may Congress use this
authority to interpret the 15th amendment and even adopt interpretation contrary to the
Supreme court?
ii. §4(e) of the Voting Rights Act provides that no person who completed sixth grade in a
Puerto Rican school, where the language of instruction was something other than English,
shall be denied the right to vote because of his inability to read or write English. Registered
voters of New York challenged the constitutionality of §4(e) claiming that it prohibited the
enforcement of state election laws requiring an ability to read and write English.
iii. The Court explained that §4 could be read to enable the Puerto Rican minority in New
York to better obtain the equality of civil rights and equal protection of the laws. In other
words, there was a basis that Congress could’ve concluded that Puerto Ricans may be
discriminated against in the area of voting.
iv. More importantly, the majority found that Congress could’ve found that the literacy test
denied equal protection. This was much more significant because it implied that
Congress had the authority to define the meaning of the 14th Amendment akin to the
necessary and proper clause. (See McCulloch).
v. Challenge of the constitutionality of the of the VRA. VRA empowered the attorney general
to suspend literacy test and other restrictions on voting in those state where less than 50% of
the citizens had voted or were registered to vote. In addition, §5 of the VRA barred states
from adopting any new standards with regard to voting without obtaining preclearance from
the attorney general. which triggers federal oversight of state elections in the South.
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 vi. Crt: by including §5 the draftsmen sought to grant to Congress the same broad powers
expressed in the Necessary and Proper clause (McCulloch) test.
1. Ends: preventing the exclusion of the franchise on the basis of race.
2. Means: reasonably adapted to that end; the imposition of a preclearance requirement
and the end of literacy tests.
3. Deference to what congress might have rationally concluded.
f. Katzenbach v. Morgan (1966):
i. Challenged constitutionality of §4(e) of the VRA which provides that no person who has
completed sixth grade in PR school, where instruction was in Spanish, shall be denied the
right to vote because of failing an English literacy requirement.
ii. Proper exercise of § 5 of the 14th amendment.
1. Crt: McCulloch level deference to Congress. §5 of 14th was a positive grant of power
to Congress. Congress may interpret the Constitution sans judiciary rulings as though
this is like any other enumerated power.
2. “Plainly adapted” to “legitimate ends”
a. Congress could have granted Puerto Ricans the right to vote to empower
them and help them eliminate discrimination against them (remedy for
discrimination)
b. Literacy tests denied equal protection (~Lassiter). Congress being accorded
the authority to define the meaning of the 14th.
iii. What does this decision say?
1. Is Congress limited to remedying what the Court had found to violate the
Constitution or could it independently interpret the Constitution?
a. NY: Congress cannot use its §5 power to independently determine the
meaning of the Fourteenth amendment, but rather could only provide
remedies for practices that the Court had deemed unconstitutional.
b. Crt: by including §5, the draftsmen sought to grant to Congress the same
broad powers expressed in the Necessary and proper clause.
i. Congress may independently interpret the Constitution and even
overturn the Supreme Court (i.e. Lassiter).
g. Jones v. Mayer (1968):
i. A private real-estate developer refused to sell housing or land to African Americans in
violating of a federal statute. The question was whether the statute only applied to state
actions and not to private conduct.
ii. 1866 CRA (42 U.S.C §1982) implements the 13th amendment by banning discrimination in
the sale or renting of private property. 13th gives congress the power to “pass all laws
necessary and proper for abolishing all badges and incidents of slavery in the US”
iii. Under its enforcement power of §13, Congress could regulate the sale of private property in
order to prevent racial discrimination in this field.
1. McCulloch standard of deference: protecting the rights of free blacks to engage in
the common economic occupations of life protects their ability to earn a living and
free themselves from the incidents of slavery.
a. Plausibly adapted to achieve the aspirations of the 13th amendment.
h. Oregon v. Mitchell: upholding a law against literacy tests on the ground that it may rationally
prevent a constitutional violation in the future (1970) (dealt with voting for 18 year olds)
i. The Court held that the voting age provision was upheld for federal elections, but held the
provision unconstitutional as applied to state elections.
ii. The Court explained that it was an essential function of the states to determine, within
constitutional limits, the qualifications of their own voters for state, county, and
municipal officers. Though the 14th Amendment allows Congress to remedy racial
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 discrimination under its enforcement powers, there were no legislative findings that the age
provision was used by states to disenfranchise voters on account of race.
i. City of Rome v. United States (1980): even if §1 of the 14th amendment prohibits only purposeful
discrimination according to the Court, pursuant to §2, Congress can outlaw voting practices that
are discriminatory in effect.
i. City annexed a substantial number of outlying areas and altered the racial composition of its
electorate and also had adopted an at-large system for selecting city commissioners. Clear
discriminatory impact.
ii. District Court found no evidence that these changes were motivated by a discriminatory
purpose. Therefore, the City of Rome’s actions did not appear to be in violation of the 14th or
15th according to tests articulated by Court.
iii. Court: ruled against the city based on the voting right act. Congress could prohibit changes
that have a discriminatory impact.
1. Narrow reading: allowing proof of discriminatory impact to show a violation of
the Act was meant as a remedy, justified per §2, for a proven history of the
denial of voting rights.
2. Broad reading: authorizing Congress independently to interpret the meaning of
the 15th amendment and even to adopt a view contrary to the Supreme Court
(discriminatory impact sufficient).
a. Congress could rationally conclude that, in general, banning disparate
impact is the best way to smoke out unconstitutional invidious intent.
j. Problems with this account?
i. Concern raised by dissent was that if Congress can use its power under § 5 to interpret the
Constitution, it could conceivably use this authority to dilute or even negate constitutional
rights.
1. If Congress can prevent anything conceivably implicating discrimination, it has
authority to reach into other areas whether or not courts would adjudge those areas to
be violations of EPC. Congress, rather than the courts, is defining its power under the
14th amendment.
ii. §2 enforcement of 15th amendment raises troubling federalism concerns
1. Gives Congress authority to intervene with state authority.
2. Court has protected states from commerce interventions.
3. Congress can get around that hearty doctrine through enforcement. We have a hole
in federalism.
iii. These concerns animate the courts’ decision in City of Boerne v. Flores
k. Congruent and Proportional Test
i. General Idea: Congress may not use its enforcement powers to expand the scope of rights or
create new rights.
ii. Walking back the necessary and proper analysis that allows Congress to use enforcement as
a positive power to expand rights to catch the small subset.
iii. Employment Division v. Smith (1990):
1. Oregon law prohibited the consumption of peyote. Native Americans challenged this
law claiming that it infringed free exercise of religion because their religious rituals
required the use of peyote.
2. SCOTUS changed former precedent and held that free exercise clause cannot be
used to challenge neutral laws of general applicability. Oregon law deemed neutral
because it was not motivated by a desire to interfere with religion and it was a law of
general applicability because it applied to everyone.
iv. 1993 Congress adopted the Religious Freedom Restoration Act with a goal to overturn
Smith and restore the test of strict scrutiny in place prior. Requires courts considering free
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 exercise challenges, including natural laws, to uphold the government’s action only if
necessary to achieve a compelling state interest.
1. Congress isn’t trying to tell the court what is constitutional. It’s saying: “you’ve set
the basement, but we want to take a harder line (strict scrutiny triggered by disparate
impact) in smoking out those invidious intents.”
l. City of Boerne v. Flores (1997): frequent citations to Marbury (emphatically the province of the
judicial department to say what the law is) to aggrandize Court power and minimize McCulloch
deference.
i. Church in Texas prevented from constructing a new facility because its building was
classified as a historic landmark. Church sued under RFRA, city challenged constitutionality
of the law.
ii. Congress gives justification that there is a subset in the set of actions that are facially neutral
with the intent and effect of invidious interference. Just like in previous cases, we use a
broader enforcement net to catch the narrow set of violations. Under previous standards, this
would be permissible enforcement under the “Necessary and Proper” formulation.
iii. Unconstitutional: Laws passed under the 14th amendment §5 enforcement power must be
“congruent and proportional” to the constitutional right it enforces.
1. Congress is limited to laws that prevent or remedy violations of rights recognized by
the Supreme Court.
2. Incorrect interpretation of “enforcement” – language is about “enforcement” of
existing law.
3. Court does not overrule prior enforcement clause rulings
4. Marbury maxims reign in the power of necessary and proper. This is not a
McCulloch deference question, but one tied directly to the right being enforced.
5. Mirrors SCOTUS late 90s switch in commerce clause, necessary and proper, and the
10th amendment in reigning in Congress.
a. NY v. US (Fed gov may not “commandeer” state gov. using N&P.
b. US v. Lopez (limits on non-economic commerce power)
c. Seminole Tribes (Re-invigorating 11th amendment damage immunity for
states).
d. Brewing concern that a broad grant of 14th amendment power would provide
a loophole to these newly erected doctrines.
6. Holding: The Court found that Congress exceeded the scope of its power under § 5
of the 14th Amendment because it didn’t confine itself to the power to enforce, but
rather expanded its scope to determine what constituted a constitutional
violation.
7. First, the Court explained that during the drafting of the 14th Amendment, there was
a concern of having broad congressional power to prescribe uniform national laws.
In the Civil Rights Case, the Court invalidated sections of the Civil Rights Act of
1875 which regulated private conduct. In South Carolina v. Katzenbach, the Court
upheld provisions of the Voting Rights Act because it found them to be “remedies”
focused on the area where voting discrimination was the most flagrant. Furthermore,
under Katzenbach v. Morgan, the relevant provision could also be justified as a
remedial measure to the Puerto Rican community.
8. Second, the Court explained that if Congress could define its powers by altering the
14th Amendment’s meaning, then the Constitution would no longer be a “superior,
paramount law” (Marbury v. Madison). Additionally, the Court determined that the
RFRA’s legislative record lacked modern instances of religious bigotry sufficient to
enforce the 14th Amendment.

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 9. Third, the Court stressed that the RFRA wasn’t confined and was concerned about
how sweeping it would be across every level of government. Hence, the Court
articulated a new standard for Congress’s power under the enforcement clause of the
14th Amendment: Congress is limited to laws that prevent or remedy violations of
rights recognized by the Supreme Court and these must be congruent and
proportionate to the constitutional violation in question. The Court rejected the
view in Morgan and shifted to the perspective that Congress may not use its §5
powers to expand the scope of rights or to create new ones.
10. Rule: Congress is limited to laws that prevent or remedy violations of rights
recognized by the Supreme Court and these must be congruent and proportionate
to the constitutional violation in question.
11. Test: While Congress must have “wide latitude” in enforcing the 14th amendment,
the law must be
a. (1) Congruent – with what the court has defined as unconstitutional.
b. (2) Proportional – relationship between the injury and the means adopted to
remedying it.
i. (a) How large is the danger according to the rules the court would
recognize?
ii. (b) Is the interference with state actions congruent and proportionate?
c. Congress thus limited to enacting laws that prevent or remedy violations of
rights already recognized by SCOTUS. Moreover, there must be a
proportionality between the injury to be prevented or remedied, and means
adapted to that end.
12. Applied:
a. Enforcement clause is not related to the Constitutional violation that the court
has found (incongruent).
b. Substantial intrusion into the authority to the states, much disproportional to
the injury to be prevented.
i. No findings that the cover constitutional violations are very likely. No
finding that the impact laws are likely to be the intent laws.
c. RFRA unconstitutional as applied to states b/c creates new right to be
protected from state action under 14th amendment
d. As opposed to voting rights cases, Congress has not demonstrated a history of
covert discrimination against religious freedom that warrants a disparate
impact remedy
m. New Federalism Test applied to nominally “enforcement” legislation under 14th Amendment
i. U.S. v, Morrison (2000):
1. VAWA provides a remedy for individuals subject to gender-motivated violence.
a. Findings of discrimination in the field of gender-led violence. Congress finds
a failure to prosecute on the basis of gender – violation of equal protection –
and enforce remedy through a federal cause of action that opens up cases in
the unbiased federal courts.
2. Unconstitutional
a. Violation of private actors in court system. This is not directed remedy of
violations by court actors, but to individuals, meaning it is incongruent. The
remedy provided does not eliminate or target the source of the constitutional
violation.
ii. University of Alabama v. Garrett (2001):
1. Americans with Disabilities Act prohibits against employee discrimination of public
services and inaccessible places of public accommodation.
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 2. Congress
a. Federal government enforces EPC; we know from Cleburne that actions
against disable are often rooted in hostility or denigration of the interests of
disabled individuals, which are violations of the EPC. Prophylactically,
Congress addressed the subset of those invidious discrimination by
prohibiting all employers from an unreasonable lack of accommodations per
its enforcement power. Constitutional problem of invidious issues  attack it
broadly.
3. Reaffirmed that Congress under §5 cannot expand the scope of rights and that any
federal law must be a proportionate and congruent measure to prevent and remedy
constitutional violations.
a. The ADA provides more protection than the Constitution, which excludes
only wholly irrational discriminations against handicapped people. The ADA
requires added obligations incongruent with the recognized Constitutional
right/test.
b. No great evidence that there is a pattern of discrimination against the
disabled; therefore we do not see evidence that this impact represents
prohibited invidious intent. § 1 imposing this requirement on all government
employers is too sweeping (not proportion).
4. Breyer:
a. What’s prohibited should include “malign neglect” – a state reusing to make
any reasonable accommodation is probably acting invidiously.
b. Holding Congress to a high evidentiary standard makes no sense since they
are the body in charge of fact-finding.
iii. Tennessee v. Lane (2004):
1. Tittle II of the ADA provides remedy against states which may be depriving citizens
of 14th amendment rights of due process.
2. Upheld
a. Within Congress’s §5 powers because they concerned claims that would
receive heightened judicial scrutiny.
i. Passes proportional and congruent test because the fundamental right
(accessing course) triggers a higher standard such that the
congressional overlay is not incongruent and disproportionate.
ii. (1) Congress has made finding about the exclusion from public
facilities like courts.
iii. (2) Congress can reasonably conclude that the exclusion infringes a
fundamental right.
b. WHR Dissent:
i. Stevens rigged the analysis by analyzing the subsection of plaintiffs
seeking access to courts as the ones for whom this law is proportional.
ii. Assessing proportionality against the subset suing under the ADA for
court access and not seeking remedy for a les egregious denial of
accommodations.
iii. If this was judged correctly the law is far too generous and not
proportional to the recognized right, no matter how
important/congruent.
iv. Nevada DHR v. Hibbs (2003):
1. Family Medical Leave Act enacted to eliminate gender discrimination in the
workplace.

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 2. Congress: this is an effort to address something the court views as unconstitutional –
discriminatory effects against women. Imbeds exclusion of women, traditional roles,
and subordination.
3. WHR upholds even though it prohibits acts not entirely congruent
a. It is appropriately tailored to preventing gender discrimination in workplace
(proportional) and is congruent to a recognized Constitutional issue.
i. Long history of constitutional violations against women, and prior
statutes has failed to stamp out discrimination; recognized problem
(congruent).
ii. FMLA is in response to unconstitutional behavior affecting only one
aspect of employment (narrowly tailored/proportional).
b. States continue to rely on invalid gender stereotypes in employment context
(especially in administration of leave benefits) and therefore congress may
pass prophylactic § 5 legislation)
c. Distinguish from Garrett: not overbroad; protecting a heightened scrutiny
group which allows for more intervention prophylactically; congruent
because it recognizes an established right.
v. New Federalism
1. Congress can authorize suits against state for unconstitutional actions and also has
much broader authority to legislate if it is a type of discrimination or a right that
receives heightened scrutiny. But if it is a type of discrimination or claim that
receives only rational basis review, Congress’ ability to legislate under §5 is narrow.
vi. Northwest Austin v. Holder (2009)
1. Preclearance requirement and its coverage of certain states, later invalidated in
Shelby County, raises constitutional questions
2. Court avoided the question of whether Congress had constitutional power under the
15th Amendment or Sec. 5 of the Voting Rights Act to have the preclearance
requirement
vii. Shelby County v. Holder (2013)
1. Invalidated Sec. 4B of the Voting Rights Act, which required certain areas with a
history of racial discrimination to get “preclearance” before changing their electoral
system. Argues that this exceeds 15th amendment authority because it is not
proportional and congruent to history.
2. Does not address proportionality and congruence, but instead says that the coverage
formula is inconsistent with equal sovereignty. There is no current demonstration
that current needs that suggest that some states should be subject to preclearance
while others should not.
3. Dissent: Race discrimination in voting remains
n. Enforcement summary
i. How to determine what is or isn’t a right- look to the court. To determine the appropriate
remedies, look to the scope of the issue (City of Rome).
ii. Before Boerne, 13th through 15th enforced by way of McCulloch test
iii. Now, we do not know if congruence and proportionality applies to the 13th and 15th but
know it applies to 14th.
iv.

X. Substantive Due Process Redux

a. Review:

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 i. The authority of the Court to recognize and implement extra-textual unenumerated liberty
rights.
ii. Calder v. Bull: the Constitution embodies natural rights.
iii. Lochner: obligated to evaluate actions taken by states and federal government to determine
whether they are law and not arbitrary deprivations of life, liberty, and property.
1. Must be a legitimate goal and a direct connection between goal and deprivation. Raw re-
distribution of wealth is disfavored (“taking from A giving to B”) and not adequately
connected to public health, safety, or welfare.
2. Holmes: challenges how in a democracy the Court can determine that certain
democratically elected goals are illegitimate. There must be ultimate deference to the
democratically elected legislature unless their action clearly infringes on a fundamental
principle understood by our people and tradition; then due process kicks in.
3. Notion of liberty is perverted when it is used to interfere with the outcome of
democratic self-rule (unless the legislative action infringes on fundamental principles
as understood by our tradition).
iv. Starting around the 40s, we see two surviving branches of rigorous SDP (~economic liberties)
and one related concept
1. Court should stay its hand with reasonable interpretation- accepts Holmes approach
2. Incorporation: applying various parts of the bill of rights to the states on the analysis
that limitations of life, liberty, or property inconsistent with Bill of Rights deprived
people without due process of law.
a. Legislative infringements on these applied rights must survive compelling
scrutiny to pass a substantive due process challenge.
3. Test- Rooted in our history and traditions or in the very essence of ordered liberty or
required for due process and liberty.
4. Interferences with bodily integrity:
a. Classification of bodily autonomy as a fundamental right within the shadow of
the 8th amendment. Rooted in our history and traditions or in the very essence of
ordered liberty.
b. Rochin: recognizes certain sorts of infringements on bodily integrity that “shock
the conscience” and fall within Holmesian guardrails.
c. Strong lineage of cases cements this right (Bell, Cruzan, Glucksberg) as calling
for heightened scrutiny of legislative infringements.
5. Interferences with EPC/ “discrete and insular” minorities
Chemerinsky Overview
1. Introduction:
a. The Supreme Court has held that some liberties are so important that they are deemed to be
“fundamental rights” and that generally the government cannot infringe upon them unless strict
scrutiny is met. Most of these rights are not mentioned in the Constitution and are not absolute;
they can be infringed (regulated) by narrowly tailored means advancing a compelling state
interest.
b. Many of these rights have been protected by the court under both due process and equal
protection. Relatively little depends on whether the Court uses due process or equal protection as
the basis for protecting a fundamental right. Under either provision, the Court must decide
whether a claimed liberty is sufficiently important to be regarded as fundamental, even though it
is not mentioned in the text of the Constitution, and then if any regulation passes strict scrutiny.
i. Difference is in phrasing of the question: if the right is safeguarded under DP, the
constitutional issue is whether the government’s interference is justified by a sufficient
purpose. But, if the right is protected under equal protection, the issue is whether the
government’s discrimination as to who can exercise the right is justified by sufficient
purpose. 103
2. Framework for analyzing fundamental rights
a. (1) Is there a fundamental right?
b. Family Autonomy and Child Raising
i. Something about families that limits laws. Family seems to occupy a peculiar space of
counterbalancing in government. If the government could control that position in all aspects, we
would lose a valuable check on governmental tyranny. If you standardize all children, you
subvert democracy.
ii. Meyer v. Nebraska (1923):
1. NE statute disallows teaching foreign languages until the student has achieved 8th grade.
Teacher convicted for breaking that law. New England claims that the purpose is to
make English the mother tongue.
a. Not irrational to make sure kids speak English
b. Not irrational to say that kids are less likely to speak English if taught another
language.
c. This would clearly pass rational basis scrutiny (Holmes dissent) so why elevate
the standard?
2. Due process guarantees the protection of a fundamental liberty of the basic aspect of
family autonomy.
a. Importance of child-parent bond.
b. Parental choice in education.
c. Government infringement has the tinge of illegitimacy and social eugenics
i. WWI had just ended and there was a concern that speaking German
inculcated a bad culture.
ii. Sparta, Plato: Democracy doesn’t work if the state can inculcate the
opinions of its citizens. In order for our institutions to work, parents must
be allowed to teach their children in ways that the state would not
necessary encourage. Otherwise, we have Sparta, or Plato’s
Commonwealth which is NOT national self-government.
iii. This dilutes democracy.
3. Recognizes broadly defined term of “liberty” to denote not merely freedom from bodily
restraint, but the rights of individuals to engage in family autonomy (marry, raise
children, etc.)
a. Government must meet the heavy burden of strict scrutiny in order to justify an
infringement on any of these liberties.
iii. Pierce v. Society of Sisters (1925):
1. Compulsory Education Act forces students to go to public school through 8th grade.
2. Unconstitutional
a. Right to control the upbringing of one’s children is fundamental and
infringements subject to strict scrutiny.
b. Doctrine of Meyer: childhood standardization is not an appropriate end,
considering what we want out of democracy and non-uniform citizen-soldiers.
Children are not creatures of the state. Outside of authority of government is
totalistic involvement in the parent-child relationship that allows the government
to mold public opinion by which legitimate government are though to be
governed.
iv. With demise of Lochner – economic rights not fundamental and regulations are consistent with
the legitimate scope of police power – can fundamental rights analyses re: family values still
survive.
1. Yes, a supportable constitutional approach post-Lochner as is fundamental interest in
bodily integrity.

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 2. End of Lochner may have eliminated economic rights as fundamental (and therefore
subject to strict scrutiny) but it has no eradicated a means-ends fit inquiry of
fundamental rights per se.
v. Prince v. Massachusetts (1944):
1. MA statue prohibits child labor. Can MA enforce the statute to a nine-year-old girl who
was soliciting for the Jehovah’s Witnesses at the direction of her parents.
2. Upholds intervention: the need to protect children from being exploited and harmed
justified upholding laws prohibiting child labor, even if the work was at the direction of
the parents and even if it was undertaken for religious purposes.
a. Sufficiently strong countervailing government interest to pass strict scrutiny that
intrudes on the fundamental right of family-child relationships and upbringing.
c. Sexual/reproductive/marriage rights
i. Court continuously recognizes constitution limitations on the authority of government to
interfere in family, marital relations that implicate related subjects of privacy, procreation, and
sexual rights.
ii. Most of these are specific balancing tests that do not directly implicate a standard of review
(strict scrutiny). More like fact-specific balancing.
iii. Skinner v. Oklahoma (1942)
iv. Griswold v. Connecticut (1965): declared unconstitutional a state law that prohibited the use
and distribution of contraceptives; marital interaction between husband and wife has a
fundamental constitutional stature that precludes interventions.
v. Loving v. Virginia (1967): declare unconstitutional an anti-miscegenation statute on EPC
grounds, also could have been on Due Process Grounds; fundamental right to generate a married
union (Pierce, Meyer).
vi. Stanley v. Illinois (1972): declared unconstitutional a state law that automatically made children
of an unmarried mother wards of the state at the time of her death. There is a fundamental
liberty interest in the connection of parent and child even absent marriage. Both due process and
equal protection were violated by the state’s terminating a father’s rights without any showing
(process) that he was unfit as a parent.
vii. Moore v. City of East Cleveland (1977): city zoning ordinance limited the number of unrelated
people who could live together in one household and defined “unrelated” to keep a grandmother
from living with grandsons who were first cousins. Struck down on the basis that cutting off any
protection of family rights (fundamental right to keep family together than includes an extended
family) at the first convenient mark of consanguinity is arbitrary rather than narrowly tailored to
serve a compelling interest.
viii. Zablocki v. Redhail (1978): invalidates state law restricting courts ability to grant marriage
licenses to applicants delinquent in child support payments
1. Invalidated on equal protection grounds, but the Court classified marriage as a
fundamental right. The prohibition effectuated a substantial state interest, but was
overbroad and not well tailored enough: many alternative ways to greet its ends that
child support would be paid that are less restrictive of the fundamental right to marry.
2. Concurrence: case should have been decided under due process rather than equal
protection although the conclusion would come to the same point: the law impermissibly
interfered with the right to marry.
ix. Santosky v. Kramer (1982): government must provide “clear and convincing evidence” before
terminating a parent’s rights of custody.
1. Long line of cases had recognized that freedom of personal choice in family matters is a
fundamental interest. Therefore, before deprived of children, state needs a very
substantial reason.

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 x. Turner v. Safely (1987): declared unconstitutional a state law that prevented prisoners from
getting married unless superintendent gave permission, and would only do so for compelling
reasons. In prison walls, strict scrutiny does not apply and the gov may interfere with
fundamental rights if reasonably related to a legitimate penological interest. But the Court
concluded that a ban on marriage in prison is not reasonably related to any legitimate
penological objectives.
xi. Troxel v. Granville (2000): invalidating a court holding forcing a parent to give a grandparent
presumptive and irrebutable visitation rights over the objection of the parent who is in custody
of the child. Valuing, slightly, the parent’s right to run the family over the child’s interest in
seeing the grandparent or grandparent’s interest in seeing the child.
xii. Michael H v. Gerald D (1989): even an unmarried father who participated actively in the child’s
life is not entitled to due process if the mother was married to someone else. A state may create
an irrebutable presumption that a married woman’s husband is the father of her child even
though it negates all of the biological father’s rights.
xiii. How do these survive when Lochner fails?
1. Lochner deemed redistribution illegitimate, projecting onto the Constitution Mr.
Herbert’s Social Statics. It adopted a specific view of legitimate interests tied to an
economic perspective.
2. Family values, on the other hand, are rooted in our history unlike a freedom to contract.
Laissez fair economic principles might be popular, but they do not arise to the same
level of fundamental interest that is imbedded in the traditions of our country.
a. A good number of the interventions by the state during Lochner were novel,
exposing that the rights were not truly rooted in our history so as to be
fundamental.
b. But see, Loving v. Virginia, anti-miscegenation statutes are rooted in history. So
maybe the Court is not always reading history but the evolution of opinion on
these issues up until current, contemporary understandings.
c. Justice Harlan in Poe v. Allman: liberty protected by substantive due process is
not printed out, but rather a rational continuum which includes freedom from
arbitrary restraints to be judged in light of those traditions from which it came
and those which it broke.
i. This 'liberty' is not a series of isolated points pricked out in terms of the
taking of property; the freedom of speech, press, and religion; the right to
keep and bear arms; the freedom from unreasonable searches; and so on.
It is a rational continuum which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless restraints
3. And fundamental rights are not absolute; government is entitled to regulate but only
narrow regimes that advance a compelling state interest.
xiv. Griswold v. Connecticut (1965):
1. State law prohibited the use and distribution of contraceptives.
2. Majority opinion
a. One looks to the bill of rights and sees certain underlying commitments in the
shadow of the 1st, 3rd, 4th, 5th amendments.
b. Those guarantees have penumbras; various guarantees create zones of privacy.
i. Connecticut law violated the right to privacy in prohibiting married
couples from using contraceptives.
ii. He is mistaking penumbras for a fundamental right arising out of the
history of cases which cement the fundamentality of family rights.

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 iii. He articulated this theory because he deemed substantive due process as a
backwards remnant of Lochner. To avoid Lochner, he crafted penumbra
which was more or less a due process analysis.
iv. He also focused on privacy rather than a right to avoid procreation or to
make procreation style choices.
3. Goldberg concurrence
a. 9th amendment authorized the Court to protect nontextual rights such as privacy.
b. Just as the Bill of Rights allows us to look beyond to see whether fundamental
interests are “so rooted” in the conscious so as to be fundamental for the
purposes of incorporation, so too does the 9th amendment trigger this analysis;
allowing us to look beyond the enumerated provisions of the Constitution for
fundamental rights such as privacy.
c. Fabric, purposes, guarantees; determine whether the claimed right is of such a
magnitude that it is fundamental despite not codified.
4. Harlan; traditional due process with his Poe v. Allman theory
a. Right to privacy should be protected under the liberty of due process.
b. This right is included in those historically recognized under due process (Rochin,
Snyder, Palko)
c. Reference to the question as to whether this law deprives us of a liberty rooted I
the traditions of American society.
i. Measured not only by what we wrote down but what we rejected as
invalid throughout the years.
xv. Eisenstaedt v. Baird (1972):
1. State law prohibited distributing contraceptives to unmarried individuals; only allowed
to married persons (get around explicit holding of Griswold which limited to “marriage”
bedroom).
2. Unconstitutional denial of equal protection because it discriminated against non-married
individuals.
a. Right to privacy is the right of the individual to be free from intrusion into
matters so fundamental as decision whether to bear or beget a child.
b. Under heightened scrutiny, the prohibiting served no legitimate government
purpose.
c. Expanded on Griswold in recognizing a right to control reproduction as
fundamental and applying that to marrieds as well as unmarried (EPC).
xvi. Carey v. Population Services International (1977): declared unconstitutional a new york law that
made it a crime to sell or distribute contraceptives to minors. Strict scrutiny must be met;
limiting to licensed pharmacist and under 16 unduly restricted access and infringed the right to
control procreation. Need more than hypothetical rationality once in this standard; these two
cutoffs were blanket, arbitrary line drawing. Court doubted that prohibiting distribution of
contraceptives would deter teenage sexual activity and thought it irrational that the state would
want an unwanted pregnancy to be the punishment for fornication.
d. Abortion
i. State of play pre Roe
1. Bodily integrity holdings (Rochin)
2. Reproductive autonomy cases (Griswold, Skinner)
3. Family autonomy cases (Meyer, Peirce, Loving)
ii. Quick overview:
1. Roe: strict scrutiny–fundamental right to terminate abortion in 1st semester; intervention
by state must be justified by a compelling state interest and narrowly tailored.

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 a. Post viability, compelling interest by state to preserve life only can be intervened
by the countervailing interest of mothers’ health should it be at risk.
2. States enact laws attempting to burden the decision by the woman to get an abortion.
When do these regulations impermissibly interfere with a fundamental right?
a. Akron, Thornburgh: 24 hour waiting periods, mandatory disclosure of facts
intended to dissuade abortions is unconstitutional.
3. PP v. Casey: upholds central holding of Roe about the substantive right to liberty but
creates the “undue burden” test to root out those state interventions that cross a “line”
4. Gonzalez v. Carhart: upholds partial birth abortion act, exuding deference to
congressional findings re: the health of the mother. Casey still good law, but not
observed with glowing praise.
iii. Roe v. Wade (1973):
1. Texas law prohibits abortions except in cases of rape and incest.
2. Unconstitutional; due process right to decide whether to terminate a pregnancy.
a. (1) Should the Court be involved in this decision/does it have precedent to stand
on? Right to privacy is rooted in the due process clause as fundamental right
which involves the right to terminate pregnancy.
i. Self-regarding, self-autonomy action; family, autonomy, procreation
grounds that have been well cemented in the court for decades.
1. Procreation (Skinner); intimate conduct (Griswold); familial
privacy (Pierce). Ability to pick children (Eisentadt)
2. Reproductive autonomy is particularly close to the dignity of
individuals; sterilization as the converse of abortion (Skinner)
3. Firm standing on fundamental rights in
family/autonomy/procreation lineage.
ii. Bodily integrity
1. Mandating pregnancy imposes a physical burden as much as
Rochin
2. Same magnitude of intrusion, maybe more; body is not the
creation of the state.
3. Glucksberg, Cruzan, Chavez; reason for something more than
abject deference to legislative goals.
4. “Live constitutional concern”
5. But state can also have a draft
iii. EPC
1. Affects only women and perpetuates the historical subordination
of women as a child-bearing class.
2. Abortion prohibition prescripts upon women bearing the burden
on behalf of others.
3. Sex-discrimination is firmly imbedded in our Const. fabric since
the 70s
a. Gedulgig
b. Nguyen
c. MUW, VMI
iv. Confluence of these three lines of cases supports the idea that the Court
has precedent and well-accepted background to invoke this concern for
reproductive autonomy. Linking up with a broader fabric of constitutional
doctrine.
b. (2) Why choose this STRICT SCRUTINTY standard to protect that right?
i. At least as important as voting as a fundamental right
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 ii. After first trimester- state interest in pregnant person’s health
becomes compelling and the state can regulate for the pregnant
person’s health
iii. After viability- state interest in potential life becomes compelling and
the state can ban abortion except for life of the pregnant person
c. (3) Why is the interest in fetal life compelling only after viability?
i. The interest is definitely there the day before pregnancy but not there on
the first day of a pregnancy
ii. Before the mid-1800s, the breaking point for common law traditions was
the quickening, where the fetus starts kicking
iii. Based in biology with the proposition that viability is medically
ascertainable and the fetus can survive outside the womb at the time
iv. Viability usually allows a period of informed choice
v. Difficulty in finding a marker that responds to moral intuitions
3. Dissent
a. No textual basis for this right
b. No tradition of protecting this right
c. What counts as a compelling state interest?
d. When does life begin?
iv. Post-Roe
1. States try to push the line where fetus is person such that it can intervene earlier to
preserve life as a compelling state interest.
a. Fetus feels pain; fetal heartbeat; any medical procedure that can detect a
heartbeat.
2. A series of cases arises in which states intervene to limit the fundamental right to choose
an abortion.
a. Doe v. Bolton (1973): criminal prosecutions, requirement that a woman obtain
approval of two doctors are an intervention requiring compelling state interest.
b. PP v. Danforth (1976): requirement that a women obtain consent of husband
before abortion is a limitation that requires and will fail to find a compelling state
interest.
c. Harris v. McRae (1980): no entitlement to publicly funded abortion
i. Is there a comparable argument to NFIB v. Sebelius about costs limiting
autonomy?
d. Akron v. Akron (1983): statutes that require doctors to give state sponsored
lectures about adverse affects of abortion is a limitation on choice that requires a
compelling state interest that is impermissible; 24 hour obligation to wait is a
limitation that imposes an obligation unjustified by state interest. No state
interest served by arbitrary and inflexible waiting period.
e. Cases about parental consent or notice and judicial bypass to show that it is in
their interest to not tell their parents
v. Planned Parenthood v. Casey (1992):
1. Pennsylvania abortion law requires 24 hour waiting period (struck down in Thornburg,
Akron), notification to husband (struck down in Danforth).
2. Roe’s central holding affirmed; spousal notification unconstitutional; all else permissible
infringement.
a. Upholding Roe: The abortion cases stand at the confluence of different lines of
cases in which intimate and personal choices central to human dignity have
generated a pattern of protection from which the court understands not a series
of isolated points, but a rational continuum.
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 i. Reproductive autonomy; intimate relations; procreation (Griswold,
Eisenstadt, loving, turner v safely; Skinner -- and an implicit rejection of
buck v bell (procreation)).
1. A similar application of the rejected reasoning in those cases
would allow the state, with only a rational interest, to compel an
abortion.
2. It can’t do that.
ii. Bodily integrity cases (Rochin, Cruzan, etc.)
1. This intrusion resembles Mr. Rochin’s.
2. But note: bodily intrusions are not summarily prohibited; just need
to satisfy a compelling interest.
iii. States that Buck v. Bell is no longer good law?
3. State’s interest in fetal viability is present throughout pregnancy and therefore the
new pre-viability test is if the law in question places an undue burden that has the
purpose or effect of placing a substantial obstacle in the way of someone seeking to
get an abortion.
a. Challenges:
i. Upholds three interventions that had previously been invalidated.
ii. Articulates a new standard: “undue burden standard.”
1. State cannot place a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus and making
her decision.
a. Roe v. Wade approach does not adequately recognize
legitimate interests in pre-viable potential fetal life.
Conversely, not everything that touches on abortion
decision-making implicates the deprivation of a
fundamental right to choose (spectrum of influence
from permissive encouragement to invalid coercion).
b. The question must ultimately be whether the woman
can make the decision. That fact that it may be
marginally more difficult does not render the
intervention interfering with the core right. “Undue
burden” strikes that balance.
iii. State must have a legitimate purpose (other than simple prevention) and
the intervention has to be such that it does not place a substantial obstacle
in the path of the woman.
1. 24 hour waiting period – previously invalidated in Akron – upheld
as no undue burden
a. It’s a tax, disincentive, more than persuading
b. District Court found that it was particularly burdensome
on choice, but not unduly.
c. At least on record, SCOTUS not convinced that waiting
period rises to the level of an undue burden.
d. SFK: think about geographic issues, poor people, a 24-
hour period will unduly obstruct them. Why not make 48
hours and make it impossible to fulfill.
2. Spousal notification is not ok; rises to level of undue burden
a. DC findings show that domestic violence is a problem and
pregnancy can be a flash-point.

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 b. Only 1% of women affected, but “legislation is measured
by its impact on those for whom it is a restriction, not
the group for whom the law is irrelevant.”
c. Reinforces traditional notions that women belong to their
husbands (Bradwell, Mutter). This is too close to the
common-law unity of husband and wife and the
contemporary equality of both sexes.
b. The undue burden standard comes from opportunity to vote cases- Anderson v.
Celebrezze (1983)
vi. Post Casey, Pre-Carhart
1. Most abortions (80+%) are in the first trimester and require no substantial surgical or
bodily invasion.
2. Some abortions have to happen later. Why?
a. Poor/uneducated people don’t know they are pregnant or can’t raise the requisite
funds to find out or abort.
b. Those abortions tend to require one of two procedures
i. D&E: dismember fetus in the womb, and then remove the fetus piece by
piece.
ii. D&X: partial delivery, brain puncture, sucks out brain, remove whole
fetus.
c. The second one is less liked -- considered more gruesome -- but has also been
found to be occasionally safer.
3. Stenberg v. Carhart (2000):
a. NE state law banning D&X abortions without an exception for the health of the
mother invalidated; clear application of Casey.
b. So Congress passes the Partial Birth Abortion Act
i. Congress explicitly responds to Supreme Court. (according to Sen.
Santorum)
ii. Congress made findings of fact
1. The D&X procedure was never medically necessary (SFK: Simply
false; major gynecological medical ass’n agreed that it was
sometimes.)
2. No medical schools teach this procedure (FALSE)
iii. Congress thus concluded overall that the health of the woman was not at
risk by this statute.
vii. Gonzales v Carhart (2007):
Partial Birth Abortion act upheld based on massive deference to questionable Congressional
findings of fact.
1. HELD: Constitutional. Kennedy, Roberts, Thomas, Scalia, Alito (replaced
O’Connor) JJ., [ Conservative wing ]
a. Mother’s health: No undue burden imposed on the woman, because this
procedure is never medically necessary.
i. Congress made factual findings to this effect.
ii. A consensus exists that this particular procedure is never medically
necessary.
iii. We defer to the findings of Congress, despite doubt.
b. Morality; respecting the fetus: The right to abortion isn’t a “take-your-pick” of
methods, and this procedure is ethically dubious – (too) closely resembles the
killing a born child.
i. There are available alternatives, which are as safe.
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 c. Paternalism [ worst argument ]: Based on literally no data, “some women come
to regret their choice,” so we can legislate out the most gruesome ones to protect
against that.
i. Some doctors wouldn’t share the gory details
ii. Ban the gory procedure to prevent uninformed regret.
iii. SFK: This is a horrible, horrible argument.
1. If you are concerned that women won’t know the full gruesome
details of the procedure, require telling them the details!
2. What doctor willing to perform this procedure feels queasy
talking about it?
3. “We are concerned you’ll regret your choice so we are going to
remove the choice” is anathema to the pro-choice movement.
d. “Considerations of marginal safety, including the balance or risks, are within
legislative competence when the regulation is rational and in pursuit of legitimate
ends. When standard medical options are available, mere convenience does not
suffice to displace them.”
e.
2. GINSBURG, STEVENS, SOUTER, BREYER, JJ., Dissenting:
a. District Court found Congress’s findings to be wrong: this is sometimes
medically necessary; thus the lack of exception for health of the woman is
damning here.
b. The Court’s hostility to the right Roe and Casey secured is plain. Not consistent
with Casey b/c there is no exception for health of the woman (only to literally
save her life)!
c. Intact D&E is safer for women’s health b/c of less risk of damage. If the state is
denying a procedure that is safer, it is denying the health of women. How can we
uphold a law that denies a procedure that is safer?
d. Same concerns as SFK, above. Fiery dissent.
e. This law doesn’t even protect fetal life. In either way, fetal life will end. The
state’s actual interest doesn’t apply here
f. Also, which is crueler? Bashing a head in or dismemberment?
3. Justice KENNEDY is the lynchpin of Casey and abortion rights.
a. If his allegiance to Casey fades, he could allow more and more statutes pushing
viability back, etc.
b. He does, however, specifically note that the protection of viable options is
critical to the finding.
viii. Whole Women’s Health v. Hellerstedt – SCOTUS 2016 – TX TRAP law struck down b/c
health benefits did not outweigh costs  provisions constituted an undue burden to women
seeking abortions in TX. A bit of a twist on the undue burden standard.
1. Facts
a. In 2013, TX legislature passed HB2: (1) required any physician performing an
abortion to have admitting privileges at a hospital within 30 miles of where the
abortion was performed, and (2) requiring all abortion clinics to comply with
standards for ambulatory surgical centers.
b. Group of abortion providers sued TX seeking to invalidate the provisions in the
TX statute, arguing that it denied EP.
2. Holding
a. HB2 imposes an undue burden on women seeking a legal abortion with no
benefit and is unconstitutional.

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 b. Substantial/Undue Burden Test (Casey): must weigh the extent to which the
laws actually serve the stated government interest against the burden they
impose  weigh benefits against costs.
c. The Whole Woman’s Health decision clarified that the undue burden test is
a form of heightened scrutiny. To apply the test, courts must determine that
a law that burdens the right to abortion:
d. Furthers a Valid State Interest: A law must actually further a valid state
interest – not just rationally relate to a state interest – and courts cannot
defer to state claims about how interests are or might be furthered
e. Confers Benefits that Outweigh Burdens: Courts must balance any
established benefits of an abortion restriction against burdens it creates for
women, and find it unconstitutional if the burdens outweigh the benefits
f. Is Based on Credible Evidence: Courts must consider evidence-based
findings that rest on reliable methodology when they assess a law’s benefits
and burdens.
g. Statute doesn’t confer medical benefits that are sufficient to justify the burdens
they impose on women seeking to exercise their constitutional right to an
abortion. The numbers would have to show that abortion was made safer under
the new regulations. But there was no such support.
h. Evidence presented in the District Court showed that the admitting privileges
requirement did not advance the state interest in protecting women’s health, but
instead placed a substantial burden in the path of a woman seeking an abortion
by forcing about ½ the state’s abortion clinics to close. There’s no need to access
to a surgical center. What goes wrong goes wrong a bit after the procedure.
i. The requirement that abortion clinics meet standards of ambulatory clinics did
not lower the risks of abortions compared to those in non-surgical centers.
Requirements were essentially arbitrary.
j. The State said this would force unsafe clinics to shut down. Is this worth shutting
down safe clinics?
k. Also, there’s no evidence that unsafe, illegitimate providers would stop. But,
more women would turn to them because they would have fewer options among
safe providers.
l. If the requirements took effect, only 7 or 8 facilities in the entire state would
be able to function and this in and of itself is a substantial burden on women
seeking abortions because the remaining facilities would not be able to meet
the demand.
m. Ginsburg Concurrence – Abortions are safer than childbirth.
3. Dissent
a. There is no conclusive proof that the clinics closed because of the regulations and
not because they just closed on their own. Petitioners also didn’t prove that the
closure of some clinics would actually affect the number of women able to access
abortions, especially because many abortion clinics operated below capacity.
b. You are reinterpreting previous standards. This undue burden test is not the one
from Casey.
c. Trust the TX legislature’s findings.
d. Brought up Kermit Gosnell case of an abortion provider that ran a very unsafe
clinic and was criminally prosecuted for it, argues that TX needs to regulate its
abortion clinics. [Stupid argument]
ix. Box v. Planned Parenthood (2019)
1. Facts- Statute prohibits disposing fetal remains with other medical waste
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 2. Holding- constitutional, state may decide this based on desire for dignity of life, doesn’t
impose undue burden, so rational basis applies
x. June Medical
e. Gays
i. See previous rulings in Romer, Windsor, and Lawrence
ii. Obergefell v. Hodges (2015)
1. Tries to ground analysis in due process and equal protection
2. Does a pretty good job with the due process analysis, explaining why the same reasons
for a right to marriage apply to gays
3. Doesn’t do a good job about equal protection, doesn’t ground in either invidious
discrimination or fundamental interests

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