FEDERAL JUDICIARY
1. Power of Judicial Review
a. Interpretation of Article III says judicial review is allowed
i. Marbury v. Madison (1803): “It is emphatically the province and duty of the
judicial department to say what the law is…”
1. Marbury had a vested right to his position upon signing and sealing of
commission
2. A right requires a remedy: mandamus is the appropriate remedy. But the
court may not issue Marbury mandamus because Sec. 13 of Judiciary Act
of 1789 is invalid, as this type of suit wasn’t listed in its original
jurisdiction in Art. III, sec. 2, cl. 2.
3. Congress’s 1789 Judiciary Act granting such jurisdiction was invalid
because Congress cannot expand Court’s jurisdiction beyond allowed by
Constitution.
a. Supremacy Clause: Art. VI[2]: “The constitution, and the laws of
the united states which shall be made in pursuance thereof ….
Shall be the supreme law of the land …”
b. Congress cannot add to the Court’s jurisdiction because it would
make the Constitution’s language superfluous
i. This is why the standing requirements inferred from
“cases” and “controversies” is so closely enforced
b. Policy: gives judiciary a role, effectuates the Constitution, provides a check and balance
on the other branches
i. Constitution does not address certain matters
ii. Most constitutional provisions are written in broad language
iii. Rights must be balanced against other interests
2. Modes of Interpretation
a. Textual: looking to the meanings of the words of the Constitution alone as they would be
interpreted by the average contemporary “man on the street”
i. Discern what the words mean
b. Historical: relying on intentions of Constitution’s framers and/or ratifiers
i. E.g. District of Columbia v. Heller (2008):
1. Facts: DC passed law that banned assault weapons, no registrations of
handguns but not allowing registration, guns must be dissembled and
trigger locked at home
2. Issues: Does 2nd Amendment grant an individual right to have weapons in
the home for self-defense? Does the 2nd Amendment protect use of guns
only for militia-related purposes? Does the 2nd Amendment allow
reasonable regulations upon its (assumed arguendo) individual right of
self-defense?
3. Rule: Presuming applicant is not disqualified from exercising the right, the
second amendment prohibits an absolute ban on operable handguns for
self-defense in the home
c. Doctrinal: apply rules based on prior cases interpreting the constitution
i. Stare decisis: “its has been decided” – apply “neutral principles” to provide
stability, reliability and coherence to the law in an area
ii. Law school teaching method
d. Structural: infer Constitutional rules from relationships created by structure of
Constitution
i. Relationships set up via constitution help interpret
1. E.g. McCulloch – finding Maryland couldn’t tax the national bank because
all people not represented in MD legislature
e. Prudential: balances costs and benefits of potential Constitutional rule
i. Shoe one approach makes most sense as Constitutional policy
ii. “Brandeis brief” – is the interpretation wise?
f. Ethical: derive rules from broad moral commitments of U.S. that are reflected in
Constitution
i. Traditions and values of US that are broadly held
1. E.g. Reynolds – finding “one person, one vote” required by our
Constitutional culture
3. Justiciability - requirements for types of cases federal courts can adjudicate
a. Constitutional: Art. III sec. 2 extends to “cases” and “controversies”
i. Require an actual dispute between adverse parties that is capable of judicial
resolution
ii. Court may not issue advisory opinions
1. Advisory when:
a. There is not an actual dispute between adverse parties
b. There is not a substantial likelihood that a decision in favor of a
claimant will have some effect
iii. Prudential judicial administration
1. Assertion of own interests
2. Injury within “zone of interests” of law invoked
3. Ripeness & Mootness
4. No Generalized Grievances
b. Standing: parties must have proper authority to bring the claim before federal courts
(states have different rules)
i. Injury-in-fact (actual injury): present or “certainly impending” (Clapper); concrete
and particularized
1. No an abstract disagreement about matters of policy
2. Clapper v. Amnesty Int’l: warrantless surveillance of communications
outside of US where one party “reasonably believed” to be terrorist; no
injury because must be “certainly impending” and could not prove gov’t
was spying on them
a. Injury can’t be too speculative; concrete, particularized, and actual
or imminent
ii. Causation: not a generalized grievance
1. Hollingsworth v. Perry: CA voters amend state constitution to outlaw gay
marriage, overturned in court, state officials do not defend, outside group
wants to step in to defend voter enacted change; no standing for appeal
because petitioners not ordered to do or refrain from doing anything
a. Need “concrete and particularized injury” where request
remedy for “personal and tangible harm”
b. Generalized grievance: claiming only harm to his and every
citizen’s interest in proper application of the Constitution and laws,
and seeking relief that no more directly and tangibly benefits him
than it does the public at large
i. Distinct role only as to enacting the law; no enforcement
role
c. Not agents of CA only have interest in CA law; not authorized to
make CA’s appeal decision or forced to comply with order
i. No personal stake
ii. Not injured anymore than anyone else
iii. Deal with issue in the legislature
2. US v. Windsor: lawfully married woman recognized by state but not Fed
caused surviving spouse to have high estate tax that is exempt for spouses;
Obama refused to defend beyond district court so BLAG argued – allowed
a. “Real and immediate economic injury”
b. Sharp adversarial presentation answers prudence concerns
i. In these unusual and urgent circumstances, not concerned
about integrity of political process
3. Lyons: black male choked during traffic stop seeks an injunction; must
show imminent harm and can’t show likely future stop & choke
a. Would have to assert another encounter would happen
i. No real or immediate threat that is concrete or
particularized
4. Lujan v. Defenders of Wildlife (1992): challenge regulations regarding
geographic area to which endangered species act of 1973 applied, US
funding projects that would harm endangered species
a. No actual injury – injury in fact: no tangible or particular harm
i. Need more than a cognizable interest
ii. Had no definite plans to travel to see endangered species
b. Also a redressability issue
i. Wrong parties
ii. Fraction of the funding for those projects
iii. Redressability: must show outcome of case would effect parties; must prove
defendant caused plaintiff’s harm so that a favorable decision would likely
remedy the injury (interrelated with causation)
1. Linda v. Richard (1973): TX policy only sue for nonpayment of child
support if parents were married; no redressability
a. Father could choose jail over paying so no guarantee mother would
get her money = no redressability
2. Warth v. Selding (1975): zoning laws prevented building multifamily and
low income housing in NY
a. Could not show such hosing would be built without exclusionary
zoning
i. Low income families might not be able to afford once its
built
ii. Builders might not choose to construct housing
3. Simon v. Eastern KY Welfare Rights Org. (1976): law requiring hospitals
provide free care, plaintiff denied care because of IRS revenue ruling
limiting amount of free medical care hospitals required to give (only in
emergency services)
a. Purely speculative if revenue ruling responsible for denial of care,
victory would not give care they desired
4. Duke Power Co. v. Carolina Envir. Study Group (1978): Price-Anderson
Act violates due process because it limits liability of utility company if
nuclear accident
a. Radiation, thermal pollution, fear of accident was NOT speculative
b. Found standing, but Act was constitutional
iv. Policy rationale:
1. Assure true case or controversy
a. Redressability
2. Limit role of courts
3. Assure best litigant
a. Not intermeddler
4. Properly develop facts
5. Less demand on courts
FEDERAL LEGISLATURE
4. Congress’s Active Commerce Power: “to regulate commerce … among the several states” Art. I,
Sect. 8, Cl. 3.
a. Expansive Commerce Power (1819-1890): McCulloch & Gibbons
i. McCulloch v. Maryland (1819): Maryland taxes national bank; bank refuses to
pay and Maryland sues; Congress has power to establish bank (Nec & Prop Cl.)
and states can’t tax Federally created bank
1. Power to create National Bank:
a. Government entrusted with such ample powers must also be
entrusted with ample means – Necessary and proper clause powers
(terms purport to enlarge scope)
b. If end “legitimate” and means “plainly adapted” then means “not
prohibited” are Constitutional (start of rational basis test)
2. State power to tax bank:
a. Federal power to create is power to preserve and state power to tax
is power to destroy; Federal government is supreme within its
sphere and state can’t have power incompatible with Federal
power
b. Otherwise MD residents alone vote tax destroying bank willed by
people throughout the US
ii. Gibbons v. Ogden (1824): NY granted monopoly, rival steamboat claimed right to
operate under federal coasting license; Congress could regulate this as
“commerce” thus superseding NY rule
1. "Commerce” is “intercourse” – long understood to include navigation;
“Among” is between more than 1 state; “regulate” is “prescribe the rule
which commerce is to be governed”
b. Stingy Commerce Power Based on “Laissez-faire” Jurisprudence (1890s-1937)
i. Manufacturing nor production was held not to be commerce
1. E.C. Knight (1895): gained 98% monopoly of production of sugar;
manufacturing is not commerce – no Federal right to regulate
a. Commerce succeeds manufacture
b. Federalism means States have exclusive zone of exclusive “police
power”
c. Effect on commerce “indirect”
2. Carter v. Carter Coal (1936): New Deal sought to stabilize and control
coal industry by regulating wages, hours, conditions
a. Wages, hours, conditions = “production” and not commerce
b. Mining activities are “local”
c. Intent to exchange inter-state not enough
ii. Once goods came to “rest” in a state, this was not considered “among” the states
1. Shreveport Rate Cases (1914): TX rail rates out of TX much higher than
those within TX; Fed allowed to regulate
a. Inter-state carriers, as “instruments” of inter-state commerce, are
subject to regulation where “such a close and substantial relation
to interstate traffic” that control appropriate
2. A.L.A. Schechter Poultry (1935): violation of chicken controls that
include bargaining, child labor, 40-hr work week; only indirect effect on
inter-state commerce – Fed not able to regulate
a. Commodity must be in the “flow” of inter-state commerce and the
chicken had come to permanent rest; protect “the stream of
commerce”
iii. The commerce clause could not be used to invade the “police powers” of a state
because of the 10th amendment; state sovereignty limits congressional power
1. Dagenhart (1918): Congress bars transport of manufactured goods that are
product of inappropriate child labor; 10th A. prevents commerce power
from extending to manufacturing and labor that is part of intrastate
production (even though it affects interstate competition)
2. Champion v. Ames (1903): Congress barred transport of lottery tickets
across state lines; Congress may prohibit item from interstate commerce in
addition to regulation
a. Congress may police morals
b. Evil may be prevented in interstate by “only power competent to
that end”
c. Expansive Commerce Power in New Deal & Civil Rights Eras (1937-1990s)
i. NLRB v. Jones & Laughlin Steel (1937): National Labor Relations Board sued
J&L for violating employee’s rights to organize in PA; Congress can regulate
manufacturing that does not have a direct effect on interstate commerce because it
has appreciable effects on interstate commerce
1. “Such a close and substantial relation to” interstate commerce “that their
control is essential or appropriate to protect” interstate commerce from
“burdens and obstructions”
ii.
iii.
iv.
v.
2. “Manufacturing” and “production” not determinative; “direct” or
“indirect” effects on interstate commerce is a distraction
3. Labor strife could shutdown plants and affect interstate commerce
United States v. Darby (1941): Fair Labor Standards Act sets minimum wages
and maximum hours, and punishes inter-state shipment of goods produced in
violation; congress may regulate commerce even if overlaps with state police
power
1. Shipment of manufactured goods interstate is commerce; Dagenhart
overturned – can directly regulate labor practices producing goods headed
to interstate commerce
2. Regulation of intrastate acts that so affect interstate commerce is an
“appropriate means to … legitimate end.”
3. 10th A. not construed to destroy Commerce Clause with Necessary &
Proper Clause
Wickard v. Filburn (1942): Secretary of Ag. Authorized to set wheat quotas,
Filburn violated because grew extra wheat (mostly for personal use); Congress
able to regulate local acts if, taken in aggregate, “exert a substantial economic
effect on commerce”
1. “Substantial economic effect” allows regulation of “local” act “though it
may not be regarded as commerce”
2. Controlling price and amount of wheat is important to national economy;
personal consumption is the largest variable factor; Filburn affects
interstate price
3. Congress may count cumulative effect of intrastate commerce on interstate
commerce; “his contribution, taken together with that of many others
similarly situated…is far from trivial.”
Heart of Atlanta Motel (1964): White hotel refuses to rent to Blacks; hotel near a
highway and advertised nationally; Congress found discrimination discouraged
black travel and thus impacted interstate commerce; Congress may regulate moral
wrongs that effect interstate commerce
1. Congress allowed to regulate moral wrong in Champion (lottery ticket
case)
2. Power to promote interstate commerce also includes power to regulate
local activities which might have a substantial and harmful effect
upon that commerce
a. Local acts regulable because hotel advertises interstate and gets
75% guests therefrom
3. Other options, but matter of policy that rests entirely with the Congress
Katzenbach (1964): White restaurant refuses to seat blacks; only 46% food served
from interstate commerce; not frequented by interstate travelers; Congress can
regulate local business not seeking interstate commerce if “substantial economic
effect on interstate commerce” (Wickard)
1. Congress only needs “rational basis” that regulatory scheme is
“necessary to the protection of commerce”
2. Racial bias problem that affects interstate commerce
d. A Return to Laissez-faire (1990s-?): narrowing of the commerce power and revival of the
tenth amendment as a constraint on Congress
i. Lopez (1995): invalidated the gun free school zones act of 1990; defendant
brought gun to school to sell to classmate, act barred possessing gun within 1,000
ft. of a school; not economic but criminal and not part of a larger regulation of
economic acts so no aggregation
1. Test - congress may regulate:
a. Channels of interstate commerce: river ways, roads
b. Instrumentalities of interstate commerce; and
c. Activities that have a substantial relationship to or effect on
interstate commerce
i. Great weight of cases suggests “substantially”
ii. Must be “economic activity”
1. Statute may be essential part of larger regulation of
economic activity that could be undercut by
intrastate activity
iii. Any legal uncertainty from defining commercial mandated
by Constitution’s lack of federal police power
2. Concurrence (Kennedy): court must step in with the Congress goes “too
far”; allow state to be laboratories for experimentation; preferred test:
actors or conduct has a commercial character or purpose of the statute
evident a commercial nexus versus whether intrude upon an area of
traditional state concern; violation because education is traditionally a
state concern
3. Concurrence (Thomas): shouldn’t have a substantial effects test
4. Dissent (Stevens): guns are articles of commerce and restrain commerce
5. Dissent (Souter): supposed to use “rational bases” scrutiny for substantial
effects on commerce; that deference is the paradigm of judicial restraint –
Lochner-izing
6. Dissent (Breyer): three principles – commerce clause allows regulating
intrastate commerce if significantly affects, consider cumulative effects,
look only for rational connection between regulated activity and interstate
commerce
ii. Morrison (2000): V-tech football players raped plaintiff and university’s inaction
caused plaintiff to leave school and sue under Violence Against Women Act;
1. Congress is barred from using finding of cumulative effects when
pursuing non-economic regulation traditionally left to states?
2. Reasoning: Lopez shows questions for substantially affects analysis
a. Gender violence not economic activity;
b. No jurisdictional element;
c. Express congressional findings;
d. But only attenuated effect upon interstate commerce
3. Dissent (Souter): precedent says can look at cumulative effects because
Congress’s capacity for gathering evidence and taking testimony far
exceeds the courts, therefore use the “rational basis”; Congress showed
significant evidence that gender violence, like race discrimination,
prevents full participation in national economy; formalism of economic or
noneconomic now serves federalism rather than Laissez Faire ideology; ad
hoc review will fail because of integrated economy and changed
federal/state relations
iii. When overall scheme valid (not too attenuated) and activity is clearly economic,
Congress can regulate
1. Gonzalez v. Raich (2005): CA allows medical marijuana, Fed prosecuted
despite purely local use;
a. Issue: Does cumulative effect on interstate commerce allows for
prosecuting state exempted local use?
b. Held: yes
c. Analysis: when total incidence of a practice poses a threat to a
national market, Congress may regulate the entire class
i. Where general regulatory statute bears a substantial relation
to commerce, de minimis character of instances is
irrelevant
ii. Can regulate purely intrastate activity that is not itself
commercial if failure to do so would undercut regulation of
the interstate market in that commodity
iii. Determine only whether Congress had “rational basis” for
concluding homegrown weed has substantial effect on
supply and demand for commodity with national market
iv. Lopez and Morrison distinguished because overall scheme
is valid, clearly economic activity (production, distribution,
and consumption of commodities)
d. Concurrence (Scalia): where necessary to make a regulation of
interstate commerce effective, Congress may regulate intrastate
activities that don’t substantially affect interstate commerce; must
show failure to regulate intrastate activities could undercut a
comprehensive scheme of regulation of interstate commerce
i. Lopez and Morrison distinguished because can’t regulate
purely local activity based solely on attenuated effect on
interstate market – neither case involved a comprehensive
scheme of regulation
ii. Congress could reasonably conclude interstate market goal
could be undercut because local-grown, personal weed is
never more than an instant from the interstate market
5. The necessary and proper clause: “to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers” Art. I, Sect. 8, Cl. 18
a. US v. Comstock (2010): Federal law allows court order of civil commitment of person
currently federally incarcerated, previously engaged or attempted sexually violent
conduct or child molestation, currently serious mental illness, and as a result presently
have difficulty refraining from sexually violent conduct or child molestation;
i. Rule: The means are necessary and proper where rationally related to enumerated
power and doesn’t invade state sovereignty or improperly limit States’ powers
ii. Factors
1. Rationally related;
2. Long history of Fed. Involvement;
3. Sound reasons for enactment;
4. Statute accommodates state interests;
5. Links between statutes and enumerated power “not too attenuated”
iii. Concurrence: (Kennedy) need empirically demonstrated link to commerce;
(Scalia) need more than “attenuated link” to “constitutional powers”
iv. Dissent: necessary and proper clause must execute enumerated power; power not
present here because protection from mentally ill is general police power reserved
to the states
b. See also McCulloch v. Maryland: necessary and proper to create national bank to manage
constitutionally enumerated power
6. Tenth amendment limits on commerce power
a. New deal and civil rights era
i. Commerce Clause may operate against States in areas of traditional governmental
functions
1. Garcia v. San Antonio Metro Transit Authority (1985): Federal Gov’t
extended the Fair Labor Standards Act, which requires that employers
provide minimum wage and overtime pay to their employees, to state and
local governments; overturned Nat’l League of Cities allowing Federal
regulation of minimum wage and overtime rules for government
employees
a. Commerce clause may operate against states in areas of
traditional governmental functions
b. Analysis:
i. Lower courts struggled to identify “traditional function”
ii. Test inevitably invites an unelected federal judiciary to
make decisions about which state policies it favors
iii. Text of Commerce Clause imposes no special limits in
relation to the States
iv. Because of checks and balances, States can protect
themselves through political process
c. Dissent (Powell): it undermines stare decisis to overturn a
reiterated decision either years later; decision makes the 10th
amendment meaningless; decision justified on ground of not
having unelected judges decide political matters, but these 5 judges
sweep away precedent on federalism; states electoral role
unhelpful because representatives become part of federal
government
d. Dissent (Rehnquist): we will rise again, but we won’t tell you how
b. New laissez-faire era?
i. Forcing state to make particular regulations violates the 10th Amendment
1. NY v. US (1992): Congressional regulation encourages states to address
radioactive waste, required non-acting state to take title to waste
a. Congress can’t commandeer State legislative process by directly
compelling state to enact and enforce federal regulatory program
i. Congress can govern directly but may not require state to
govern according to Congress’s instructions
ii. Otherwise, Federal officials not held accountable while
State officials might be punished by voters
b. Congress can attach conditions to funds and offer state choice to
regulate activity according to federal standards or be pre-empted
by federal regulation
c. Take title provision offers State “choice” between two options Fed
couldn’t order directly because they commandeer
i. States can’t consent to 10th A. violation
ii. Congress cannot compel State officials to implement federal regulatory program
1. Printz v. US (1997): Brady Act directs local law enforcement (“pressing”
them into Federal service) to conduct background checks on potential gun
owners until Fed ready
a. Historical argument: early Congress only used state courts;
Federalist Papers favor anti-commandeering
b. Structural argument: Separation of powers problem because
Congress could go around working with President; President’s job
to enforce laws
c. Doctrinal argument: NY v. US prevents commandeering state
legislation, now extended to commandeering state and local
officials
d. Dissent (Stevens): this is judicial activism because it creates an
unwritten rule; 10th amendment doesn’t prevent delegated powers;
there’s contradictory history in Federalist Papers; structural
argument reduces trivial burden to the absurd
iii. Requiring states to follow Federal law is different than commandeering
1. Reno v. Condon (2000): Congressional Act prevents anyone from selling
Driver’s identification data; law is generally applicable
a. Regulating things (data) in interstate commerce
b. Commandeering inevitable consequence of regulating state activity
c. Does not require State legislature to enact particular
laws/regulations or require officers to assist in Federal regulation
7. Congress’s taxing & spending power
a. For what purposes may congress Tax and Spend
i. US v. Butler (1936): Agricultural Adjustment Act of 1933 limited production of
certain crops and thus regulated the price; Congress has the power to tax and
spend for the general welfare (applies in this case – encouraging following the
law), but this Act invades states’ reserved rights (second holding overturned!)
1. Dissent (Butler): courts are concerned only with the power to enact
statutes, and not their wisdom; the only check on the court is their own
self-restraint; look to the ballot for the repeal of unwise laws; present
depressed state of agriculture is nation wide and hence the tax here is for
the general welfare
b. Shift away from Butler and move to judicial deference
i. C.C. Steward Machine v. Davis: new deal social security tax challenged as
violating founding limits on taxing property and employment and natural right in
employment relationship (aka liberty of contract)
1. There is no limit on ability to tax, every form of tax appropriate to
sovereignty
a. Only tyrannical or arbitrary tax could violate taxing and
spending power
2. Congress’s subject matter of taxation is as broad as that of the states’
ii. Sabri v. US (2004): Fed. Law proscribing bribery of officials of entities that
receive at least $10,000 in Fed. Funding
1. Necessary and proper power is attached to a spending power; Congress
can govern the use of Federal spending
2. Analysis: reject “facial challenge” of need for explicit link to Fed. dollars
because don’t presume unconstitutionality; and fact money can be
drained off here because a federal grant it pouring in links sufficiently to
general welfare
3. Dissent (Thomas): don’t use rational basis
c. Conditions on grants to state governments
i. South Dakota v. Dole (1987): Ages 19-20 can purchase “near beer” but Federal
highway funds will be withheld if drinking age is less than 21
1. Issue: is this a constitutionally allowed condition on spending power?
2. Held: yes – Conditions must be:
a. Unambiguous
i. Clearly stated
b. Related to the federal interest
i. Safe interstate travel
c. Not barred by other Constitutional provisions
i. 10th amendment doesn’t apply because only a small
percentage of budget lost if state doesn’t change the law
ii. Pressure does not turn into compulsion
d. National Federation of Independent Business v. Sebelius (2012): Health Care Act
requires individuals to purchase minimum health insurance or a penalty of at least $695
to IRS (individual mandate) and gives states 10+% of budgets conditioned on providing
health care to poorer citizens (Medicaid expansion)
i. Issue 1: does commerce clause together with the necessary and proper clause
allow the individual mandate? No
1. Congress does not have the power to compel people to buy things; not
purchasing health insurance is not an activity regulable by commerce
clause
ii. Issue 2: does tax and spend power allow the individual mandate? Yes
1. Establishing a condition (being a health care free-rider) that triggers a tax;
taxes meant to influence conduct are not new
iii. Issue 3: is the threat to remove Medicaid funding coercive? Yes
1. Not a relatively small percentage but ALL; not a modification but a
transformation of the program; must have genuine choice
a. Compare to South Dakota v. Dole
iv. Dissent (Ginsburg): everyone participates in the healthcare market (unique
market); uninsured substantially affect interstate commerce; Congress had a
rational basis and owed deference; N&P clause doesn’t require absolute necessity,
just reasonably adapted; no “existing” funds to be coercive about because
Congress can pull/change Medicaid funding at anytime
INDIVIDUAL RIGHTS
8. State action doctrine: Did the State or an official of the state do something through a law,
regulation, etc.? Was a private person acting under the color of law?
a. Early cases enforece requirement of state action
i. Barron v. Mayor & City Council of Baltimore (1833): 5th amendment only applies
to Federal gov’t not against state; pre-civil war constitution does not apply to state
government
ii. Slaughterhouse Cases (1872): Texas had huge surplus of cattle, Louisiana
legislature established a monopoly slaughterhouse in New Orleans (had to allow
butchers at a fixed fee); butchers allege monopoly violates their right to ply trade,
created involuntary servitude, deprived them of their property without due process
of law, denied them equal protection, and abridged their privileges or immunities
as citizens
1. Supreme court held the 13th and 14th amendment was solely to protect
former slaves (since over ruled!)
a. Due process: precedent is against finding restraint on plying trade
to be deprivation of property
b. Equal protection: only race discrimination will ever count for this
Clause
2. Civil Rights Cases (1883): Federal civil rights law trying to apply to
individuals; congress does not have power to legislate upon subjects
within the domain of state legislation; 14th amendment is powerless to
stop private discrimination; Constitution applies to states and not
individuals
a. Civil Rights Act of 1875 prohibited private race discrimination and
provided both criminal and civil penalties – Court held
unconstitutional because 14th amendment applies just to state and
local government actions
b. Public functions doctrine – private party performs task traditionally, exclusively done by
the government
i. Management of Private Property
1. Marsh v. Alabama (1946): company owned town, deputy sheriff paid by
company, has US post office, highway traffic unblocked into town,
Jehovah’s witness sought to proselytize, warned off, arrested and
convicted in state court
a. Issue: can enforcement of abridgement of speech by private
company operating town open to public constitute state action?
b. Held: yes
c. Analysis: more an owner opens property to general public,
more owner’s rights circumscribed; public’s interest in free
communication the same whether corporation or municipality
owns town; when balance interests, free speech outweighs property
interest
2. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza
(1968): peaceful picketing on grounds generally open to public covered by
1st amendment; if business area of town, state action, as in Marsh public
had unrestricted access; the more an owner, for his advantage opens
property to public, the more public has rights
3. Lloyd Corp. v. Tanner (1972): distinguishes Logan Valley on the grounds
of unrelated speech (protesting Vietnam war vs. labor protest related to the
functioning of a store)
4. Hudgens v. National Labor Relations Board (1976): overruled Logan
Valley; content-based distinction untenable; malls are private
c. Endorsement exception – state authorization, encouragement, or enforcement of private
action;
i. Judicial and Law Enforcement Actions
1. Shelley v. Kraemer (1948): virtually all whites in neighborhood entered
restrictive covenant against blacks and Asians, black plaintiffs bought land
against restrictive covenant and state court divested title
a. Issue: can such judicial enforcement of discriminatory private
agreement be state action?
b. Held: yes
c. Analysis: purpose of private agreement only secured by judicial
enforcement; participation by State is not “so attenuated in
character”; the difference between judicial enforcement and nonenforcement is the difference to petitioners between being denied
rights of property available to other members of the community
2. Lugar v. Edmondson Oil (1982): petitioner operator of truck stop indebted
to supplier respondent, pursuant to state law respondent attached
petitioners property on mere allegation and ex parte state clerk issue writ
executed by Sheriff
a. Issue: is the attachment “fairly attributable” to the state?
b. Held: yes
c. Analysis: need state action because it preserves area for individual
to pursue economic interests and free association, otherwise
private party could face constitutional litigation every time relying
on state rule; preserves state power by limiting federal law and
judicial power
i. Two-part test for state action
1. Deprivation must be caused by the exercise of some
right or privilege created by the state
2. Party charged with the deprivation must be a person
who may be fairly said to be a state actor
ii. Factors for “fairly” treated as state actor:
1. Extent relying on government assistance
2. Perform traditional government function
3. Injury uniquely aggravated by government authority
3. Flagg Brothers v. Brooks (1978): private creditor’s self-help repossession
did not constitute state action, and thus due process was not required prior
to the sale of her belongings; warehouse company was privately owned so
the Constitution did not apply
a. Distinction between Lugar and Flagg Brothers: the direct
involvement of a state officer (the sheriff) in Lugar and Flagg
Brothers was entirely private self-help
ii. Government Licensing & Regulation
1. Burton v. Wilmington Parking Authority (1961): city established parking
garage and needed lessees, coffee shop lessee refused to serve blacks,
saying it would hurt business, city maintained building
a. Issue: was city entangled with coffee shop sufficient to create state
action?
b. Held: yes
c. Analysis: building part of essential government function; upkeep
out of public funds; city and coffee shop received mutual benefits;
irony amounting to grave injustice that blacks equal only in some
parts of the building; city placed power, property and prestige
behind discrimination
2. Moose Lodge (1972): Pennsylvania liquor board licensed and regulated
limited alcohol sales, including a discriminating private lodge on private
property
a. Issue: is lack of public accommodation and public property
sufficient to defeat state action where state heavily regulates?
b. Held: yes
c. Analysis: lodge is private; if discrimination is private, state must
significantly involve itself; no Burton-esque symbiotic
relationship; not performing function otherwise likely performed
by state; regulation doesn’t foster discrimination
d. Dissent: complete and pervasive regulation; Pennsylvania says
lodge must follow its own discriminatory bylaws is same as if the
license said to discriminate; blacks likely can’t get licenses
3. Jackson v. Metropolitan Edison (1974): respondent is private company
holding certificate of public convenience issued by Pennsylvania,
extensive regulations say may cut off service upon reasonable notice of
nonpayment, petitioner had service cut off for nonpayment, transferred to
3rd party, 3rd party did not pay, transferred to 12-year old, company cut off
service without further notice of opportunity to be heard
a. Issue: Is respondent private actor despite performance of public
function to this extent?
b. Held: yes
c. Analysis: Civil rights cases allow any discrimination by private
actors; test is whether there is a sufficiently close nexus between
the state and challenged action that the action may be fairly
treated as that of the state itself; state granted monopoly not
determinative; cases finding state action involve power delegated
by the state that is “traditionally associated with sovereignty”
and Pennsylvania is not obligated to provide electricity; if state
action here, then always when business affecting public interest
d. Dissent: respondent is only entity allowed to provide essential
public service; state approves mode of service termination (the
challenged act); state thus sufficiently insinuated itself into a
position of interdependence; factors include (1) state sanctioned
monopoly (2) extensive cooperation (3) service uniquely public
iii. Government Subsidies
1. Blum v. Yaretsky (1982): to get Medicaid, must have financial need and
qualified problem, nursing home notifies state of change, class action by
Medicaid patients challenging discharge or transfer without notice or
hearing
a. Issue: is state action lacking when state refuses to adopt regulations
prohibiting unconstitutional conduct
b. Held: yes
c. Analysis: extensive regulation alone does not create state action by
“entanglement”; must show “sufficiently close nexus” between
challenged action and state that “may fairly be treated as that of the
state itself”; such nexus usually requires state coercion or
significant encouragement; such nexus may be present if private
party use powers “traditionally the exclusive prerogative of the
state”
i. Here: can’t use state response to homes’ decision unless
allege state’s obligations were the cause; only challenge
discharge based on medical judgment, not state transfer
elsewhere
d. Dissent: test should be “brought the force of the state” against the
plaintiff; false factual premise because levels of care created by
state to save money; degree interdependence greater than in Burton
because state pays for greater than 90% of its residents
2. Rendell-Baker v. Kohn (1982): private school that gets 90-99% funds
from referral of public students and issues publicly certified diplomas,
many regulations, but not on firing, defendant fires 6 employees for
speech
a. Issue: whether school’s discharge cannot fairly be seen as state
action despite this level of entanglement?
b. Held: yes
c. Analysis: school employees like private contractors working on
state projects who aren’t state actors; public function requires
“traditionally the exclusive prerogative of the state”; until
recently state didn’t pay for students who could not be served by
traditional public schools
d. Dissent: state has delegated educating these kids to school and
provides nearly all funding; where symbiotic relation ship (Burton)
private action can become “so entwined with governmental
policies” as to be state action; school closely supervised and
performed statutory duty of state; court returns to empty formalism
i. Empty formalism: the substantive justice of the decisions
has become irrelevant
9. Equal protection: 14th amendment: 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
a. Equality means the government must be fair to all; the government must treat likes alike
and must also treat dissimilar differently; equal protection means not preferring one
similarly situation group over another and recognizing differences that are meaningful
b. If the law is facially neutral, must show (1) discriminatory or disparate impact, and (2)
discriminatory purpose
i. Requirement of purposefully mens rea
1. Washington v. Davis (1976): qualifying test “test 21” required for
applicants to police department in D.C.
a. Racially disproportionate impact alone is not enough
i. Must also show proof of discriminatory purpose
ii. Invidious discriminatory purpose may be inferred from all
facts
b. Test is neutral on its face and rationally related to constitutional
gov’t purpose
2. McClesky v. Kemp (1987): statistics (Baldus Study) show black men
sentenced to death more frequently than white men for similar crimes;
couldn’t show that though black men generally discriminated against that
he was discriminated against
a. Knowledge that law has racially discriminatory impact is
insufficient; does not shift the burden to state to proffer evidence
of neutral reasons
i. Dissent (Brennan): Court’s complaint is really that
overturning this would require “too much justice”
ii. Scalia argued in an internal memorandum that no amount
of proof of widespread racial discrimination could
invalidate the death penalty
3. Personnel Admin. Mass. v. Feeney (1979): MA gives preference to
veterans with effect of creating mostly male workforce
a. Law must be enacted “because of” not “in spite of”; must be
“goal” of legislation
b. Reckless disregard of risk of discriminatory impact (or even
knowledge result will occur) is insufficient; must have both
discriminatory impact and discriminatory purpose
4. Arlington Heights Village v. Metro Housing (1977): tried to build lowincome housing, Village denied application
a. Could not show race a “motivating factor” establishing purposeful
discrimination
i. For disparate impact claim alone, need clear pattern,
unexplainable on other grounds; otherwise, show purpose
by (1) sudden change in policy or (2) departure from
normal procedure
1. Here, followed usual procedures
ii. If showed “motivated in part” by discriminatory purpose,
merely shift burden to show same decision would have
resulted absent purpose
iii. Can show purpose without clear pattern by using legislative
and administrative history to show (1) series of invidious
decisions and (2) departure from normal procedure
ii. Require discriminatory impact
1. Palmer v. Thompson (1971): 1962 Jackson, MS has segregated pools,
ordered to desegregate and instead closes all public pools
a. Neutral purpose and effect shield this tacit endorsement of
segregation
i. Assumed purpose, without effect, is insufficient
ii. No duty to have pools
iii. Black and white equally affected
b. Dissent (Douglas): Willful blindness to racist motives; “taught
Jackson’s negroes a lesson”
iii. D.O.J. Ferguson Report
1. Proving disparate impact
a. Look for “pattern or practice” of unlawful conduct
i. Blacks = 67% of population, but 85% vehicle stops, 90%
citations, 93% arrests
ii. Blacks found with contraband 25% less often
iii. Many harsh practice mostly against blacks
2. Proving purpose to discriminate
a. Look for “pattern or practice” of bias
i. Statements by city officials
ii. Stereotyping statements
iii. Blacks over-policed even though searching blacks is less
effective
iv. Refusal to remedy known disparities
v. History as “sundown town” until 1960
3. Proving compelling justification
a. Defense:
i. Raising revenue
ii. Teaching “certain segments” responsibility
iii. Protecting the public from crime-safety
b. Plaintiffs:
i. Focus on “productivity” shows real goal not safety
ii. Focus on revenue shows real goal not safety
4. Proving necessary means
a. Defense:
i. Safety requires heavy ticketing, warrants, etc.
b. Plaintiffs:
i. Focus on productivity risks being over-inclusive of what’s
necessary for safety
ii. Focus on revenue risks being over-inclusive of what’s
necessary for safety
iii. Disparate policing of blacks shows being over-inclusive
iv. Lack of focus on whites risks being under-inclusive of
what’s necessary for safety
c. Levels of evaluation: strict, intermediate, rational basis (maybe with “bite”)
i. Strict scrutiny: compelling government purpose and narrowly tailored means
(burden of proof on the government); applies to race and national origin
1. Korematsu v. US (1944): US citizen Korematsu, who was not accused of
being disloyal, convicted of being in hometown of San Leandro, CA
despite military order excluding all of Japanese descent
a. Held: enough of a necessity and close relationship of means to
justify curtailing rights of single racial group despite equal
protection requirement of 5th amendment due process
b. Creates “most rigid scrutiny” aka strict scrutiny test
i. Requires “gravest imminent danger” and “definite and
close relationship”
ii. Military’s necessity finding is supported by refusals to
swear oaths
iii. “Citizenship has its responsibilities… in time of war the
burden is always heavier”
c. Dissent (Murphy): ask whether alleged military necessity is
“reasonably related to a public danger… so immediate, imminent,
and impending” to allow no delay; no basis for description as
“enemy race”; Germans and Italians reviewed individually
2. Brown v. Board of Education 1 (1954): variety of school districts
separated students by race, black schools previously less resourced but
moving toward equal
a. 14th amendment prevents “separate but equal” race-based
education
i. Segregated schools are not “equal” and cannot be made
“equal”
ii. 14th amendment has necessary implication of a positive
immunity from unfriendly legislation and discriminations
implying inferiority in civil society
iii. Psychological knowledge says segregation “generates a
feeling of inequality”
3. Loving v. Virginia (1967): Lovings are a white man and a black woman,
married in D.C. and returned to Virginia then banished for 25 years; Judge
said “fact” that god “separated the races shows that he did not intend for
the races to mix”
a. Preventing marriage solely on race violates equal protection
i. Purpose to “preserve racial integrity”
1. Obviously an endorsement of the doctrine of white
supremacy
ii. Equal application does not save law from 14th amendment’s
bar on “invidious discriminations”
4. Palmore v. Sidoti (1984): white couple gets divorce, mother awarded
custody of daughter, mother lives with black man, father seeks custody of
daughter because mother’s “lifestyle unacceptable to the father and to
society,” state court concludes best interest of child to switch custody
because child will “suffer from the social stigmatization that is sure to
come”
a. State is barred from considering race of mother’s new partner in
custody proceeding
i. The Constitution cannot control such prejudices but neither
can it tolerate them; the law cannot directly or indirectly
give them effect
b. State action because state official exercised discretion to
effectively endorse private discrimination
i. Seems facially neutral, but clear effect of endorsing private
discrimination seems to allow treating it as facially
discriminatory
1. Alternatively, impact and purpose both found here
5. Affirmative action - Grutter v. Bolinger (2003): MI law school using race
as a small factor to determine admissions
a. Diversity is a compelling interest because:
i. Promotes cross-racial understanding
ii. Breaks down stereotypes (if critical mass reached)
1. See different types of minorities: personality,
politics, alacrity, perspiration, interests
iii. Classroom discussion enhanced by different perspectives
1. Not guaranteed but perspectives trend based on
identities
iv. Better prepared for diverse workforce
1. Comfortable with difference
b. Application was narrowly tailored because race was not the
deciding factor (not used more extensively than necessary), but
used as a plus
i. Set to end at some point once the need was addressed – 25
years?
6. Affirmative action - Parents Involved in Community Schools v. Seattle
School District (2007): using race as a tie-breaker when deciding where to
place students
a. Integrating schools plan was not narrowly tailored because (1) use
of race was used more extensively than necessary and (2) not
adopted as a last resort after all other race-neutral remedies were
examined and found inadequate
i. Also had little effect – only shifted small number of
students
b. To be compelling, diversity rationale must consider all relevant
factors in individualized review
i. Here, race, for some students, is determinative of standing
alone
ii. Limited notion of diversity
1. Collapse race into white and non-white
2. Consider 50% white, 50% Asian to be diverse
c. Roberts: the best way to “stop discriminating on the basis of race is
to stop discriminating on the basis of race”
ii. Intermediate scrutiny: important governmental purpose and substantially related
means (burden of proof on government); applies to gender and legitimacy
1. Fronteiro v. Richardson (1973): women in military, but not men, must
prove spouse is dependent to get extra benefits
a. Violates equal protection
i. Administrative convenience is unlikely to survive
heightened scrutiny
ii. Gender, like race, has history of discrimination, locked out
of political process, immutability
iii. Facial classification based on sex and fails heightened
scrutiny
b. Ends: administrative convenience
c. Means: presumption only wives dependent
d. Four justices propose strict scrutiny, but majority just finds it’s a
violation without specifying the standard of review
i. Use “close judicial scrutiny” because classifications based
on sex are “inherently suspect
2. Geduldig v. Aiello (1974): CA’s 30 year capacious definition of disability
excludes pregnancy
a. Upheld because under-inclusiveness just shows taking “one step at
a time” so allow rational line drawing
i. Ends: save money
ii. Means: exclude a costly disability
iii. The lack of identity between the excluded disability and
gender is shown because the program divides potential
recipients into two groups: pregnant women and nonpregnant persons; while the first group is exclusively
female, the second includes members of both sexes
b. Dissent (Brennan): gender-linked trait singled out for burden while
male-only disabilities are allowed
3. Craig v. Boren (1976): OK statute allows 18-20 year old girls but not 1820 year old boys to drink “near-beer,” OK argues boys much more likely
to drive drunk
a. Gender classification must show “important” interest with
“substantially related” means
i. Traffic safety is an important interest, but male as proxy for
drunk driver is unjustified
ii. Court find law too over-inclusive
b. Dissent (Rehnquist): Equal protection clause doesn’t have
language justifying heightened scrutiny for gender; the new test
invites judicial policy making; shouldn’t question lower court’s
fact-finding
4. Orr v. Orr (1979): only husbands can pay alimony
a. Even if sec reliable proxy for need or past discrimination in
marriage, means not related because individual hearings occur
i. Ends: help wives of broken marriages
ii. Means: make sex a proxy for need or deservedness
iii. Already use individual hearings to determine need, thus
under/over-inclusiveness not needed
5. Mississippi U. for Woman v. Hogan (1982): men barred from nursing
school
a. Promotes stereotype of nursing as female occupation and allowing
men to attend some classes shows means not needed
i. Ends: allow women to learn unhindered, make up for past
discrimination
ii. Means: keep men out
6. US v. Virginia (1996): publicly-funded Virginia all-male military
academy; VA argues “adversative method” of training (generally
brutalizing cadets) is only appropriate for men
a. Ends: diversity of education methods suit different people;
preserve the adversative method; “citizen soilders”
b. Means: exclude women from elite military academy
c. Result: Ginsburg says gender classification requires “exceedingly
persuasive justification” not just “important” end and here,
claiming women would destroy school is self-fulfilling. Further,
remedy must place P at equality and women’s program not equal
i. Physical sex differences “cause for celebration” not
“artificial constraints on an individual’s opportunity”
ii. Can promote equal employment opportunity; can’t
perpetuate the legal, social, and economic inferiority of
women
iii. Diversity end not supported: benign justification must
describe actual state purposes
iv. Methodology not inherently unsuited to women; can’t
support with prediction that is self-fulfilling prophecy
d. Scalia’s dissent: “gender-based developmental differences”
support only being adversative with men; should accept tradition
and require democratic process to protect women
iii. Rational basis scrutiny: legitimate governmental purpose and rationally related
means (burden of proof on the challenger)
1. What constitutes a “legitimate purpose”?
a. Romer v. Evans (1996): CO passed constitutional amendment
overturning pro-gay antidiscrimination laws and barring any future
such law; lacks the legitimate purpose necessary under rational
basis scrutiny
i. Purpose: imposes disability on single group; principle that
government remain open on impartial terms to all; law has
inevitable inference of animus
ii. Not rationally related
iii. Preventing special rights implausible since it prohibits
future rights; creates solitary class; imposes special
disability
iv. Dissent (Scalia): not bare animus but cultural battle and
since the Constitution is silent, leave it to politics
b. US Rail Retired Broad v. Fritz (1980): cost-cutting required; one
group former rail employees denied benefits while other
grandfathered; any conceivable purpose can be used to justify
legitimate purpose; “lunacy test”
i. Ask: Whether Congress achieved purpose “in a patently
arbitrary or irrational way”
ii. Irrelevant whether proffered reason was actually used
because legislature needn’t articulate reasons for enacting
the law/regulation
iii. Dissent (Brennan): this application of test immunizes all
social and economic legislation; where legislation states a
purpose but its means run counter, be skeptical
2. Rational basis “with bite”: sexual orientation and the right to marry;
mentally disabled
a. Cleburne v. Cleburne Living Center (1985): city denied permit for
group home for mentally disabled; mentally disabled fails to
require intermediate scrutiny but also fails to have reasonably
related means
i. Mentally disabled are not “quasi-suspect” class
1. Different, immutably so, in relevant aspects
2. Not subject to prejudice
3. Not politically powerless
4. Slippery slope to heightened scrutiny for aged,
disabled, mentally ill
ii. Fails rational basis
1. No special permit required for similar uses
2. This difference is largely irrelevant unless it would
threaten legitimate interest in a way that other
permitted uses would not
3. No showing plaintiffs are a unique threat
b. Windsor (2013): DOMA defined as marriage as one man and one
woman, Windsor sought federal estate tax exemption for wife,
married under NY law
i. Violates equal protection through 5th amendment because
DOMA lacks legitimate purpose;
1. Purpose is to disparage LGBT!
d. How to evaluate the “fit” of the means
i. Is the law “under-inclusive”: does it not apply to some people whom its purpose
would say are similar situated
1. Rail Express v. NY (1949): to prevent distraction, NYC prohibited
advertising others businesses on trucks, but allowed to advertise own
business; prohibition not covering some related problems is still rationally
related
a. Under-inclusiveness tolerable in rational basis review
2. This may be excused under a rational basis test if the government is
proceeding one step at a time
ii. Is the law “over-inclusive”: does it apply to people who need not be included to
promote the governmental purpose
1. NYC Transit Authority v. Beazer (1979): NYC transit authority won’t hire
methadone users, most on methadone for one year are clean and
approximately 25% are not; prohibition covering more people than
necessary still rationally related
a. Over-inclusiveness tolerable in rational basis review
i. Restricting users unobjectionable; special rule less precise
and more costly; rule supported by legit inference of
methadone user risk; dissent wrong to say over breadth
fatal
b. Dissent (White): successful methadone use is doesn’t meaningfully
predict problems; employer could use a normal screening and does
for similar groups of employees; court dwells on methadone
failures; excluding only this successful group but not similarly
situated is arbitrary
e. Separate and Equal?
i. Plessy v. Ferguson (1896): Plessy (1/8th black and phenotypically white)
convicted for trying to board white rail car in violation of Louisiana statute
1. 14th amendment equal protection allows for segregation of the races
a. 14th amendment could not have been intended to abolish
distinctions based on color, or to enforce social, as distinguished
from political, equality, or a commingling of the two races
b. Law permitting segregation do not necessarily imply the inferiority
of either race
c. Implications of white supremacy “solely because the colored race
chooses to put that construction upon it”
d. Fallacies that “social prejudices may be overcome by legislation”
or that “equal rights cannot be secured to the negro except by an
enforced commingling of the two races”
e. “If one race be inferior to the other socially, the constitution of the
United States cannot put them upon the same plane”
2. Dissent (Harlan): this is inconsistent with both equal protection and
personal liberty; everyone knows purpose of the law is to exclude blacks
a. “The white race deems itself to be the dominant race in this
country. And so it is… but in view of the constitution… there is in
this country no superior dominant, ruling class of citizens. There is
no caste here. Our constitution is color-blind, and neither knows
nor tolerates classes among citizens.”
SUBSTANTIVE DUE PROCESS
10. Fundamental rights: those the government may not infringe without a compelling justification
and narrowly tailored means
a. Examples:
i. Family autonomy
ii. Procreation
iii. Sexual activity
iv. Medical decision making
v. Travel
vi. Access to courts
vii. Voting
b. When to use the substantive due process and the test to be used
i. One person infringed or all people infringed = substantive due process
ii. Greater than one and less than all = either equal protection OR substantive due
process
iii. Test:
1. Compelling interest and
2. Narrowly tailored (i.e. no less restrictive alternative) means
c. How do we get to un-enumerated rights?
i. 9th amendment: the enumeration in the constitution of certain rights, shall not be
construed to disparage others retained by the people
d. When do we find fundamental rights?
i. Living constitutionalists
1. Deeply rooted in this Nation’s history and tradition
a. Not necessarily at most specific level possible
2. Rights concerning adequate representation and effective political process
3. Rights supported by a deeply embedded moral consensus that exists in
society
ii. Originalists
1. Explicitly state or clearly intended by framers
a. Moderates: framer’s general intent
2. Deeply rooted in this nation’s history and tradition
a. State at most specific level
3. Central to personal dignity and autonomy
a. Kennedy in Casey and Lawrence
e. Questions to ask
i. Is there a fundamental right
ii. Has the right been infringed
iii. Is there sufficient justification for the infringement
iv. Is the means sufficiently related?
11. Economic liberty and property rights
a. Laissez-fair era “Liberty of Contract”
i. Allegeyer v. Louisiana (1897): state law effectively prohibited making payment
on marine insurance polices made out of state to companies not licensed in
Louisiana
1. 14th Amendment substantive due process invalidates such a restraint on
liberty of contract: “the business of America is business”
a. There is liberty of contract to enter into contract to insure and of
individual to enter into contract to pay for out of state insurance
therefore the state may not interfere
ii. Lochner v. NY (1905): concerned with bakers’ health due to flour dust, NY set
max weekly and daily work hours
1. Protect workers’ right to work and liberty of contract
a. “Right to contract” protected by 14th A. “liberty” unless valid
exercise of police powers
i. Police powers = safety, health, morals, welfare
1. Mines and smelting validly regulated
b. Ask “unreasonable, unnecessary, and arbitrary interference?”
i. Bakers don’t need protection because clean bread does not
depend on worker’s hours; public health not at state
ii. Law has “direct relation” to “legitimate” end?
iii. If baker’s health risk justifies legislations then give an “all
pervading power” to cripple employee’s ability to support
himself
2. Dissent (Holmes): decision is based on a minority economic theory and
judges can’t decide this; 14th amendment substantive due process only if
reasonable people “necessarily” agree infringe on fundamental principles,
traditionally understood
3. Dissent (Harlan): only overturn legislation when “plainly” in excess of
legislative power; there’s evidence of a health risk!
iii. Coppage v. Kansas (1915): KS prevented employer’s from making employee’s
not joining a union a condition of hire
1. Violates liberty of contract because employee’s right to work includes
right to get prevented from developing bargaining power
a. Struck down similar federal statute preventing harming employees
for being in a union
iv. Muller v. Oregon (1908): OR law limits women to 10 hours work per 24 hours,
(future justice) Brandeis submitted evidence of risks to women’s reproduction in
non-domestic work
1. Women’s 14th amendment liberty of contract can be limited
a. That woman’s physical structure and the performance of maternal
functions place her at a disadvantage in the struggle for subsistence
is obvious… history discloses the fact that woman has always been
dependent upon man
v. Adkins v. Children’s Hospital (1923): D.C. set minimum wages for women and
kids meant to prevent women from needing prostitution
1. Violates 5th amendment liberty of contract
a. Right to seek best terms; need “exceptional” circumstances to
abridge such right
b. Given 19th amendment, women are equal in the market
c. Money required for each woman is variable
d. Morality-wages link attenuated
e. Unfair to business because not account for ability to pay and thus
“compulsory extraction from the employer for the support of a
partially indigent person”
vi. Nebbia v. NY (1934): seeking to protect dairy farmers, thus also quality of milk
by allowing recovery of pricey safeguards, NY set minimum and maximum prices
for retail sale of milk, milk + bread deal violated milk price
1. Law has a reasonable relation to legitimate end enough to overcome 14th
amendment liberty of contract
a. Milk price decline linked to relaxed quality
b. Liberty of contract balanced with police powers
c. Law ok because “reasonable relation to proper legislative
purpose, and are neither arbitrary nor discriminatory”
b. New deal and civil rights era; judicial deference
i. What toppled Lochner?
1. Defining neutral principles for the content of Constitutionally protected
economic liberty proved difficult
2. The depression made the theory of equal employer-employee bargaining
power untenable
3. Legal realists debunked “natural law” theory as reflecting political choices
4. Political pressure to overturn laissez-fair was mounting
ii. West Coast Hotel v. Parrish (1937): WA passed minimum wage for women and
children
1. Survives 14th amendment due process liberty of contract analysis because
the end is rational and the means are related
a. Part of the “switch in time that saved nine”
b. Many state have such laws and recent depression
c. Liberty of contract not in Constitution and balanced against police
powers
d. Substantive due process liberty requires reasonable end with
related means
i. Health of women clearly public interest; means not
arbitrary
ii. Exploitation of employees creates public burden, is subsidy
for unconscionable employers
iii. Carolene Products (1938), FN.4 approach: selling of “Milnut” declared illegal
through legislation found to be an appropriate means of preventing injury to the
public
1. Regulatory legislation affecting ordinary commercial transactions is not to
be pronounced unconstitutional unless it is of such character as to preclude
the assumption that it rests upon some rational basis
2. FN 4: less of a presumption when it appears on its face to be within a
specific prohibition of the Constitution… or restricts those political
processes which can ordinarily be expected to bring about repeal of
undesirable legislation or directed at a particular religious or racial
minorities because prejudice against discrete and insular minorities may
be a special condition which tends to seriously curtail the operation of
those political processes ordinarily to be relied upon to protect minorities,
and which may call for a correspondingly more searching judicial inquiry
iv. Williamson v. Lee Optical (1955): OK made it illegal to work on lenses of glasses
without license or permission from licensed practitioner; district court found this
was not reasonably related to health
1. 14th amendment substantive due process liberty allows for this as long as
there is a conceivable basis for the legislation
a. Economic substantive due process is dead
b. Law may often be “needless and wasteful” but legislature may
have concluded prescription needed enough to justify the law
c. Law “need not be in every respect logically consistent with its
aims”
12. Privacy
a. Reproductive autonomy: right to procreate, purchase and use contraceptives, abortion
i. Right to procreate
1. Buck v. Bell (1927): Carrie Buck is “feeble minded” and state wants to
sterilize her to provide for her health and the welfare of the state
a. Allowed under rational basis – end substantially relates to
legitimate purpose
i. Prevent being “swamped with incompetence”
ii. Prevent potential offspring from execution for crime or
starving due to imbecility
iii. “Manifestly unfit from continuing their kind”
2. NOW use strict scrutiny: must be a vital interest and no other
alternatives
ii. Right to purchase and use contraceptives
1. Griswold v. Connecticut (1965)