Threshold Issues

Who is acting?
o Federal Judicial Power
o Federal Legislative Power
o State/Local Legislative Power
o Executive Power
o Private Actor
Do they have authority to act? Where did their authority to act come from?
o Judicial Review – Marbury v. Madison
o Commerce Clause – Article I, §8 (Congress)
o Expanding or protecting rights – 14th Amendment (Congress)/ 5th Amendment (State Legislature)
o Police Power – (State Legislature)
o Private Actor does not have to abide by Const.
Are there limits to that power?
Federal Judiciary
Does plaintiP have standing?
Injury in fact- plaintiP must allege that he or she has suPered imminently or will suPer an injury
personally.
Causation- plaintiP must allege injury is fairly traceable to defendant’s conduct.
Redressability- plaintiP must allege that a favorable federal court decision is likely to redress the
injury.
Is the case ripe or moot?
o Ripe- may federal Court grant pre-enforcement review of the statute or regulation?
o Moot-if events after the filing of the lawsuit end plaintiP’s injury, case shall be dismissed as moot.
Does the case raise a political question, making it non justiciable? (Federal Judicial Power)
Federal Legislature
o 10th Amendment
o Police Power
o Anti-commandeering (NY v. US)
o Limits on taxing power (Dole, Sebelius)
o Does it infringe on a fundamental liberty?) à 14th Amendment Due Process Analysis
o Does it draw a distinction amongst people? à 14th Amendment Equal Protection Analysis
Executive
o Nondelegation Doctrine
o Major Questions Doctrine
o Interfering/ Usurping another branch
State Legislature
o Preemption
o Dormant Commerce Clause
Private Actor
o State- Action Doctrine
Table of Contents
I. Federal Judicial Power ____________________________________________________________________________ 3
Article III _____________________________________________________________________________________________________ 3
II. Federal Legislative Power _________________________________________________________________________ 4
Article I ______________________________________________________________________________________________________ 4
III. Executive Power________________________________________________________________________________ 7
Article I- Legislature __________________________________________________________________________________________ 7
Article II- Presidential Powers_________________________________________________________________________________ 7
IV. Limitations on State Authority __________________________________________________________________ 9
V. Protecting Civil Rights + Liberties ________________________________________________________________ 10
14th Amendment ___________________________________________________________________________________________ 10
5th Amendment_____________________________________________________________________________________________ 10
VI. Fundamental Rights Jurisprudence ____________________________________________________________ 12
14th Amendment ___________________________________________________________________________________________ 12
 I. Federal Judicial Power
Article III
Judicial Review
o Power for federal courts to review constitutionality of federal executive and legislative actions came from
Marbury v. Madison (1803).
o If federal statutes conflict with the Constitution, the Constitution should prevail as the supreme law of
the land.

Results of Marbury
o Judicial Review- federal courts can review Constitutionality of statutes and executive actions and refuse
to enforce them if they exceed the constitution.
o Judicial Supremacy- federal courts’ interpretation of the Constitution is supreme over that of the other
branches.
o Judicial Finality- federal courts settle the meaning of the Constitution.
o Judicial Exclusivity- only federal courts can authoritatively fix Constitutional meaning.

Justiciability Limits
1. Standing- is plaintiP proper party to bring the matter to the court for adjudication? Allen v. Wright
i. Injury in fact: plaintiP must allege that he or she has suPered or imminently will suPer an injury
personally. Massachusetts v. EPA
• No third-party standing allowed.
i. Exception: plaintiP who meets other standing requirements has suPiciently close
relationship to plaintiP OR if injured third party is unlikely to be able to assert his or
her own rights.
• No generalized grievances: PlaintiP may not sue as a taxpayer or citizen who shares a
grievance in common with other citizens.
ii. Causation: PlaintiP must allege that the injury is fairly traceable to defendant’s conduct.
• PlaintiP seeking injunctive or declaratory relief must show likelihood of future harm. City of
Los Angeles v. Lyons.
iii. Redressability: PlaintiP must allege that a favorable federal court decision is likely to redress the
injury. Massachusetts v. EPA
• If a ruling has no ePect, it would be considered an advisory opinion and unconstitutional.
2. Ripeness- may the federal court grant pre-enforcement review of the statute or regulation?
• Court has long held that the language in Article III authorizing federal court jurisdiction over certain
“Cases” and “Controversies” prohibits federal courts from issuing advisory opinions.
• Has plaintiP been injured or imminently likely to be injured?
• When plaintiP wants pre-enforcement review, may federal court grant it?
Two criteria:
1. Hardship plaintiP will suPer without pre-enforcement review.
2. Fitness of the issues in the record for judicial review.
3. Mootness- if events after the filing of the lawsuit end the plaintiP’s injury, the case shall be dismissed as
moot.
• PlaintiP must present an ongoing injury.
• Exceptions:
o Wrongs capable of repetition but evading review
o If defendant voluntary halts the oPending practice, but is free to resume it any time, case will
not be dismissed as moot.
o Class-action suits.
o Injuries that are over before federal court proceedings are completed.
 4. Political Question Doctrine- refers to allegations of constitutional violations that federal courts will not
adjudicate, and that the Supreme Court deems to be inappropriate for judicial review.
• Courts shouldn’t address disputes that don’t concern individual rights but involve policy choices or
values determinations constitutionally empowered to another branch of government.
• Consider 6 factors from Baker v. Carr.
1. Textually demonstrable constitutional commitment of the issue to a coordinate branch of the
federal government.
2. A lack of judicially discoverable and manageable standard for resolving the question.
3. Impossible to decide without a nonjudicial policy determination.
4. Impossible to resolve without expressing a lack of respect to other branches of government.
5. An unusual need to adhere to a political decision already made by another branch.
6. The potential for embarrassment from varied pronouncements by diPerent departments.
• Examples of Political Question
o Challenges to impeachment and removal process. Article I, §2.
o Challenges to partisan gerrymanders. Rucho v. Common Cause
o Cases under Guarantee Clause (Republican Form of Government Clause), Article IV, §4- “The
United States shall guarantee to every State in this Union a Republican Form of Government,
and shall protect each of them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic Violence.”

II. Federal Legislative Power

Article I
Federalism
• Congress may only act if there is express or implied authority in the Constitution, whereas states may act
unless the Constitution prohibits the action.
• When evaluating constitutionality of an act of Congress, ask:
1. Does Congress have authority under the Constitution to legislate?
o Particularly Article I, §8 Commerce Clause
2. If so, does the law violate another constitutional provision or doctrine, such as infringing on
separation of power or interfering with individual liberties?
o 10th Amendment as basis for protection of state governments from federal encroachment
w
The Commerce Power
o Congress has power to regulate commerce in 3 buckets:
1. Foreign Nations
2. Among Several States
3. Indian Tribes
o Court considers:
1. What is commerce?
2. What does “among the several states” mean?
3. Does the 10th Amendment limit Congress?
o 1890s-1937: Court narrowly defined scope of commerce power and used 10th Amendment as a limit.
o Congress could not regulate production, manufacturing, mining, or agriculture; these activities were
distinguished from “commerce.”
o 1937-1990s: Court expansively defined scope of commerce power and refused to apply the 10th Amendment
as a limit.
o 1990s-Present: Court has again narrowed scope of the commerce power and revived the 10th Amendment
as an independent, judicially enforceable limit of federal actions.
Key Decisions Changing Commerce Clause Doctrine
NLRB v. Jones & Laughlin Steel United States v. Darby (1941) Wickard v. Filburn (1942)
Corp. (1937)
Can regulate acts that impact Congress may regulate the labor Congress may regulate local
interstate commerce, even if standards involved in the activity if that activity exerts a
intrastate in nature. manufacture of goods for substantial ePect on interstate
interstate commerce. commerce in the aggregate.
o Because of these three cases, from 1937-1995, not one federal law declared unconstitutional as exceeding
scope of Congress’ commerce clause.
o No longer distinction between mining, manufacturing, and production.

10th Amendment Limits on Congress’ Authority

o 10th Amendment gives a zone of reserved power to the states; any power that is not granted to the Federal
powers.
o Three major decisions considering if federal law violated 10th Amendment
1. New York v. United States (1992)
2. Printz v. United States (1997)
3. Reno v. Condon (2000)
o Consider:
o Does it apply to just states or also private actors? Reno v. Condon, US v. Morrison
o Is Congress compelling the states to enact or administer a federal regulatory program? NY v.
US
o Are state’s provided a choice? Sebelius, NY v. US
o Will act make state government’s less accountable to their constituents?

Conditions on Grants to State Governments

o Congress can place conditions on grants to state and local governments.
o Conditions must be expressly stated.
o Conditions must have relationship to the purpose of the spending program.
o Congress has broad power to set conditions for receipt of federal funds even as to areas that Congress might
otherwise not be able to regulate.

Taxing Power (McCullough)

o If entrusted with the power “lay and collect taxes” also need power to execute → Grants power to
execute and power to create bank
o Written to expand powers of congress, if it was meant to be restrictive it would have been written
negatively
o “Let the end be legitimate and the means are constitutional”
o Authority to resort to all means for the exercise of a granted power which are appropriate & plainly
adapted to legitimate end.

Limits on Taxing Power (Dole)

1. Exercise of spending must be in pursuit of "the general welfare" of states
2. If Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously… enabling
the States to exercise their choice knowingly, cognizant of the consequences of their participation.
3. Conditions are related to a federal interest in particular national project or program.
4. Conditions do not violate any other constitutional provisions such as 10th Amendment.

Congress’s Powers Under the Post-Civil War Amendments

• 13th Amendment (1865)- prohibits slavery and involuntary servitude, except as punishment for a crime
 o §2 Congress shall have power to enforce this article by appropriate legislation
• 14th Amendment (1868)- all persons born of naturalized in the United State are citizens and that no state
can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or
property without due process of law or deny any person of equal protection of the laws.
o §5 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article
• 15th Amendment- [t]he right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude
o §2 Congress has the power to enforce it by appropriate legislation

Scope of Congress’s Power

o Two diPerent views of Congress’ power under post-Civil War Amendments and particularly under §5 of 14th
Amendment about what it means when it empowers Congress to “enforce” the amendment by appropriate
legislation.
1. Narrow Approach- accords Congress only authority to prevent or provide remedies for violation of rights
recognized by Supreme Court
2. Broad Approach- accords Congress authority to interpret the 14th Amendment to expand scope of rights
or even to create new rights.

Civil Rights Acts

o Congress enacted Civil Rights Acts (1964) under Commerce Clause power.
o Supreme Court held in Civil Rights Cases that Congress, pursuant to §5, only could regulate
government conduct and could not regulate private behavior under 14th Amendment.
III. Executive Power
Article I- Legislature
Section 1:
o All legislative Powers herein granted shall be vested in a Congress of the United States.
o The use of “herein” says Congress has enumerated powers.
o Article II, §1does not have this language, which might lead one to believe President’s rights are broader
than those listed.

Article II- Presidential Powers

Section 1:
o The executive power shall be vested in a President.
Section 2 [1]:
o The President shall be Commander in Chief.
o Shall have power to grant reprieves and pardons for oPenses against the United States.
Section 2 [2]:
o He shall have the power with advice and consent to the Senate to make treaties.
o He shall, with the advice and consent of the Senate, appoint Ambassadors, Supreme Court justices, and
other oPicers.
Section 3:
o He shall take care the Laws be faithfully executed.

Horizontal Separation of Power

o Not unusual to see branch of power exercising power normally exercised by another branch.
o The idea that there are 3 separate branches is a fiction and has been a fiction since the New Deal era.
o Modern state = administrative state. There is a president and Cabinet departments said to be the 4th
branch.
o Deeply problematic b/c concentrate legislative, judicial, and executive power all in one institution
w/ no textual foundation. Heads of agencies are unelected and thus, unaccountable.
§ Legislative- possess authority to promulgate rules that have force of law.
§ Executive- responsible for bringing enforcement actions against those who violate relevant
federal laws and regulations.
§ Judicial- employ administrative law judges who hear cases brought by agency oPicials
against those accused of violating agency’s regulations.

Nondelegation Doctrine
o Congress cannot delegate legislative power to administrative agencies.
o Mid 1930s height of Court’s enforcement of nondelegation doctrine. Invalidated 2 New Deal legislations.
Did Congress expressly or impliedly authorize the president’s acts? Youngstown
Is the president’s action related to foreign policy dispute? Dames & Moore v. Regan
Did Congress outline suPicient standards for the executive to exercise its power? A.l.a Schecter Poultry
Corp., Panama Regining Company
Is the President being overly broad with his interpretation of the authority delegated to him? Biden v.
Nebraska

Major Questions Doctrine

o Applied in United States administrative law cases which states that courts will presume that Congress
does not delegate to executive agencies issues of major political or economic significance.
o Agency may act on major question of economic or political significance only if there is a clear direction
from Congress. Agency must point to clear congressional authorization for the power it claims.
o Unclear if derived from Const. separation of powers or is principle of statutory interpretation.
o Unclear what major question is.
o DiPerent from nondelegation doctrine in that nondelegation makes federal statute unconstitutional while
major questions doctrine means agency action is invalid, but not the federal law.
IV. Limitations on State Authority
Limitations on State Authority
1. Preemption of State and Local Law
2. Dormant Commerce Clause

Preemption Analysis
o Has Constitutional basis in Supremacy Clause
If Congress not acting within scope of constitutional powers à end analysis
If Congress acting within its constitutional powers, ask if the law preempts state laws.
o Federal preemption comes in diPerent forms
1. Express- Lorillard Tobacco
§ Congress can make federal law exclusive in a field by expressly precluding state or local
regulation in the area.
2. Implied- Florida Lime & Avocado
§ If a federal and state law are mutually exclusive, so that a person cannot comply with both,
the state law is deemed preempted. Called “conflicts preemption.”
3. Impede Federal Objective- Pacific Gas & Electric
§ Found in state or local law deemed to impede the achievement of a federal objective, even
if the federal and state law are not mutually exclusive.
§ In applying this type of preemption, courts must determine federal objective and must
decide the point at which state regulation unduly interferes with achieving the goal.
4. Field- Arizona v. United States
§ Preemption will be found if there is clear congressional intent to have federal law occupy a
particular area of law.
§ Common in immigration law.
§ Found even in cases where state law complements and in no way interferes with federal
law or its implementation.
§ Found even in absence of express preemptive language in federal statute.

Dormant Commerce Clause Analysis

o State and local laws are unconstitutional if they put an undue burden on interstate commerce.
o Inferred from power of Congress to regulate commerce.
o Once Congress has acted, it is not longer dormant.
o State cannot use its tax system to benefit in state business.
o Commerce Clause Article I, §8, Clause 3, plays 2 distinct functions:
1. Delegation of authority to Congress to regulate commerce.
2. Limit state regulation and authority = dormant commerce clause.
o A state or local regulation discriminates against out-of-state commerce if it protects local
economic interests at the expense of out-of-state competitors. Tennessee Wine and Spirits
Retailers Association v. Thomas
o A state may not discriminate against other states’ articles of commerce on the basis of origin. City
of Philadelphia v. New Jersey
o Where a law is facially neutral but has discriminatory purpose or ePect, it violates the commerce
clause. West Lynn Creamery, Inc. v. Healy
o If a statute regulates fairly for local interests, with minimal impact on interstate commerce, it's
valid unless it excessively burdens interstate activities compared to local benefits. = Pike
balancing test. Minnesota v. Clover Leaf Creamery Company

States are free to regulate, so long as their state or local action does not:
Discriminate against out-of-state commerce;
 Unduly burden interstate commerce; or
Purposely regulate extraterritorial (wholly out-of-state) activity

Dormant commerce clause has 2 categories:

1. Laws that are discriminatory
2. Laws that are not discriminatory but nonetheless impose burdens on trade
o Facially neutral laws can be found to be discriminatory if they either have the purpose or ePect of
discriminating against out-of-staters
o Court uses Pike balancing test to see if the burden is clearly excessive in relation to benefit.
Minnesota v. Clover Leaf Creamery Company

When a local regulation is on its face or practice discriminatory, the regulation may be upheld if the state or
local government can establish that:
An important local interest being served; and
No other discriminatory means are available to achieve that purpose
à Such a law will be allowed only if it is proven that the law is necessary to achieve a non-protectionist
purpose and employs least restrictive means.

Privileges or Immunities Clause 14th Amendment

o Privileges or immunities protected by state law, not federal government.
o Application of the Bill of Rights to the states could not be through the Privileges or Immunities Clause
Slaughter-House Cases à had to be through 14th Amendment
o Used only with regard to the right to travel. Saenz v. Roe

V. Protecting Civil Rights + Liberties

14th Amendment
Discrimination against slaves led to adoption of 14th Amendment providing: “No state shall . . . deny to any
person within its jurisdiction the equal protection of the laws." Supreme Court rarely found any state or local
action in violation of Equal Protection Clause until mid 1950’s.

5th Amendment
Requirements of equal protection are same whether challenge is to federal government under 5th Amendment or
state and local action under 14th Amendment.

Equal Protection Analysis

o Equal protection of 14th Amendment applies only to state and local governments.
o Equal protection applied to federal government through Due Process Clause of 5th Amendment, which
Supreme Court has interpreted to include a requirement of equal protection.
o Whenever gov. draws a distinction amongst people, there is always a basis for equal protection
challenge. Ask:
1. What is the classification?
• Where classification exists on face of the law
• Laws that are facially neutral but have discriminatory impacts.
o Discriminatory impact is insuPicient to prove racial or gender classification- must have
discriminatory purpose behind the law.
2. What level of scrutiny should be used?
• See chart
• Courts consider when deciding which standard to apply:
 o Immutable characteristics: notion that it is unfair to penalize a person for
characteristics that the person did not choose and that the individual cannot change.
o Ability of group to protect itself through political process.
o History of discrimination against the group
o Court’s judgment concerning likelihood classification reflects prejudice as opposed to
a permissible government purpose.
3. Does the government action meet the level of scrutiny?
• Court evaluates ends and means (test)
• Focuses on degree to which law is under or over inclusive
o Underinclusive- does not apply to individuals who are similar to those to whom the law
applies
o Overinclusive- apples to those who need not be included for the government to achieve
its purpose.
o Under/over inclusivity does not mean law will be invalidated.
• Question: is the government’s classification justified by a suPicient purpose?

Rational Basis Intermediate Scrutiny Strict Scrutiny

Test Rationally related to a Substantially related to an Least restrictive means to
legitimate important governmental achieve a compelling
governmental interest. interest. governmental interest.
Upheld if any state of
facts reasonably may
be conceived to justify
its discrimination.
Burden of Laws presumed valid. Burden on gov to defend the Burden on gov to prove law is
Proof Burden on challenger to interests it stated when law necessary. Most laws
overcome presumption was enacted, not just some subjected to strict scrutiny
by establishing law is conceivable legitimate struck down. Must be
arbitrary or irrational. interest. Must be an narrowly tailored to achieve
exceedingly persuasive the goal.
justification.
Applicability Age, wealth, weight, Gender- must be an If a fundamental right or
disability, distinctions “exceedingly persuasive suspect classification is
drawn for business or justification” for the involved (race, ethnicity,
economic reasons, classification, which may national origin, and, if
sexual orientation. bring standard closer to strict classification by state law,
scrutiny. citizenship status.

Race or National Origin (Strict Scrutiny)

o Types of racial classification:
Classification exists on the face of Facially race neutral but has Racial classification
its law discriminatory impact or burdening both whites and
discriminatory administration minorities or requiring
(Requires proof of discriminatory separation of races
purpose)
Richmond v. J.A. Corson Co. Washington v. Davis Loving v. Virginia
Regents of California v. Bakke McCleskey v. Kemp Plessy v. Ferguson
Students for Fair Admissions, Inc. v. City of Mobile v. Boden Brown v. Board of Education
President and Fellow of Harvard
College
o Racial classification benefitting racial minorities use strict scrutiny, even if classification is invidious or
benign. Richmond v. J.A. Corson Co.
o Anti-classification logic: prohibits practices that classify people on the basis of a forbidden category.
o Anti-subordination logic: allows classification (or consideration of, for example, race or sec) to the
extend is intended to challenge group subordination.

How to Prove Discriminatory Purpose

• It is not enough to prove that the government took an action with knowledge that it would have
discriminatory consequences, they must also have discriminatory intent. Personnel Administrator of
Massachusetts v. Feeney
• Historical background of decision, departures from normal procedural sequence, substantive departures
from normal procedural sequence, legislative administrative history may be highly relevant to proving
discriminatory purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp.

Gender (Intermediate Scrutiny)

o Initially used strict scrutiny because of long history of discrimination, stereotypical classifications, and
immutable characteristics against women. Frontiero v. Richardson
o Gender based classifications must be substantially related to governmental objectives and must be
substantially related to achievement of those objectives. Craig v. Boren
o Must be an “exceedingly persuasive justification” for gender classifications. United States v. Virginia.
o Laws benefitting women subject to intermediate scrutiny whether the gender classification benefits or
disadvantages women.
o Gender classifications benefitting women based on role stereotypes not allowed. Orr v. Orr,
Mississippi University for Women v. Hogan
o Gender classifications benefitting women designed to remedy past discrimination with diPerences in
opportunities will be allowed, unless based on stereotypical assumptions about gender roles.

Non-citizens (Strict Scrutiny)

o Noncitizens are protected from discrimination because the Equal Protection Clause explicitly says that no
“person” shall be denied equal protection of the laws. Does not use the word "citizen" even though that word
is used in §1 of Fourteenth Amendment Privileges and Immunities Clause. Graham v. Richarson
o Rational basis for discrimination against non-citizens that relates to self-government and the democratic
process. Foley v. Connelie, Ambach v. Norwick
§ Gov. can deny non-citizens the right to vote, from serving on juries, being police oPicers, teachers,
probation oPicers.
o Intermediate scrutiny used for discrimination against undocumented immigrant children. Plyler v. Doe
o Only rational basis test for Congressional discrimination against non-citizens à Congress has plenary power
against immigration.
o Often state and local laws that discriminate against noncitizens can be challenged on preemption grounds
as well as for violating equal protection.

VI. Fundamental Rights Jurisprudence

14th Amendment
Pursuant to §5, Congress cannot regulate private behavior.

Exceptions Where Private Conduct Must Comply to Constitution

o Congress by statute can apply constitutional norms to private conduct i.e 13th Amendment race
discrimination.
o Congress can use Commerce Clause power to apply constitutional norms to private conduct.
o State Action:
• Entanglement exception- if government aPirmatively authorizes, encourages, or facilitates
unconstitutional conduct, the constitution applies. Shelly v. Kraemer

Application of the Bill of Rights

• Bill of Rights applies directly only to the Federal Government
• Applied to state and local governments through its incorporation in the Due Process Clause of the 14th
Amendment
o Incorporationists: all of the Bill of Rights should be regarded as fundamental
§ Supreme Court has never found this explicitly but has individual found almost every provision
in Bill of Rights apply to State or Local governments.
§ Exceptions of laws that have not been incorporated:
• Third Amendment to have soldier’s quartered in person’s home
• Fifth Amendment to grand jury indictment in criminal cases
• Seventh Amendment right to jury trial in civil cases.
o Selective Incorporationists: only some provisions of Bill of Rights Fundamental Palko v.
Connecticut, Adamson v. California

Procedural Due Process

o What procedures the government must follow when it takes away a person’s life, liberty, or property.
o Deprivation of liberty occurs if there is a loss of a significant freedom provided by the constitution or a
statute.
o Prisoners rarely have liberty interest.
o
o Government negligence is insuPicient to state a claim under Due Process. Daniels v. Williams
o Generally requires an intentional or reckless government act
o Government can be held liable if oPicer’s conduct shocks the conscious Country of Sacramento v.
Lewis
o Government has no duty to protect people from privately inflicted harms. DeShaney v. Winnebago Country
Department of Social Services

Substantive Due Process Analysis

Is the government limiting a person’s life, liberty or due process? (applies to all levels: federal, state, and
locally)
If individual à Consider state-action and prescription by statute
Is the right infringed a fundamental right?
Is it deeply rooted in our nation’s history and tradition?
If yes à strict scrutiny
If no à rational basis (Judiciary will defer to legislature unless there is discrimination against a
“discrete and insular” minority. Carolene Products
Define the right narrowly and broadly. (i.e. right to medical decisions or right to physician assisted
suicide (Glucksberg)
Is there a suPicient justification for the government’s infringement of a right?
Is the means suPiciently related to the purpose?

Fundamental Rights
Þ Second Amendment
o Self-defense is a basic right recognized as a central component of the 2nd Amendment right and
there is a right to have funs in the home for sake of security. DC v. Heller
 o Any regulation of guns will be permitted only if it was a type that was historically permitted. There
is no historical tradition of regulations requiring a permit, based on cause, to have guns outside
the home. New York State Rifle and Pistol Association v. Bruen
Þ Right to Vote
o Protected under 14th and 15th Amendment which prohibited racial discrimination concerning
voting.
o Laws that keep citizens from voting must meet strict scrutiny. Harper v. Virginia State Bd. Of
Elections
o Voting restrictions designed to protect integrity of electoral process will be allowed so long as they
are on balance desirable. Crawford v. Marion County Election Board
o Voter dilution not allowed. One person, one vote must always be maintained. For any elected
body with districts, all districts must be about the same in population. Reynolds v. Sims
o At-large elections allowed unless proof of discriminatory purpose. City of Mobile v. Bolden
Þ Medical Care Decisions
o Right to refuse medical care part of liberty protected by Due Process. Cruzan v. Director
o No fundamental right to physician assisted suicide. Washington v. Glucksberg
Þ Marriage
o Marriage is a fundamental liberty under liberty of DPC. Loving v. Virginia
o Same sex marriage protected. Obergefell v. Hodges
Þ Abortion
o Once was a fundamental right to abortion prior to viability. Roe v. Wade
o State cannot impose an undue burden seeking abortion. Planned Parenthood v. Casey
o No longer a fundamental right to abortion Dobbs v. Jackson Women’s Health Organization
Þ Sexual Orientation and Activity
o Right to privacy protects a right to engage in private consensual homosexual activity. Lawrence v.
Texas
Þ Contraceptives
o Right to reproductive freedom includes the right to purchase and use contraceptives. Griswold v.
Connecticut
o Restricting rights to contraceptives to only married couples violates equal protection and infringes
right to privacy. Eisenstadt v. Baird
Þ Travel
o Protected under equal protection. Saenz v. Roe

Economic Liberties
• Lochner Era- Supreme Court used strict scrutiny for laws interfering with right to freedom of contract
• 1937: Lochner overruled. Only rational basis review for laws aPecting economic rights.
• Now subject to rational basis review
• Substantive Due Process Cases:
o Allgeyer v. Louisiana
o Locner v. New York
o Adkins v. Children’s Hospital
o West Coast Hotel Co. v. Parrish
o United States v. Carolene Products Co.
o Williamson v. Lee Optical of Oklahoma, Inc.

Police Power of the Stateà Powers Reserved for State Lochner v. New York
• Health
• Safety
• Welfare
• Morals