Con Law

Front 1

JUDICIAL REVIEW

Back 1

Allows the Supreme Court to interpret the constitution to determine when it is being violated.

Front 2

Marbury v. Madison

Back 2

Court says the SCt does not have original jurisdiction in this matter, b/c Art. III, §2 is limited to what is enumerated: no more, no less, thus Judiciary Act is unconstitutional

Front 3

Ex Parte McCardle:

Back 3

Congress can determine the scope of the SCt’s appellate jurisdiction, thus jurisdiction stripping statutes are kosher

Front 4

Martin v. Hunter’s Lessee:

Back 4

Court uses the Supremacy Clause to strike down a judgment by the Virginia Supreme Court that refused to recognize a treaty with England that preserved the property rights of loyalists.
Court said “Congress may constitutionally omit to vest the judicial power in courts of the United States, but it cannot be denied that when it is vested, it may be exercised to the utmost constitutional extent.”

With respect to federal law, the federal courts are sovereign, but with state laws, the State Supreme court is sovereign

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Adequate State Grounds:

Back 5

The state grounds fully dispose of the issues in the case, such that any consideration by the U.S. SCt of the federal issues would be merely advisory and have no impact on the case’s outcome.

Front 6

Independent State Grounds:

Back 6

Basis for opinion was State law, not federal law:

Front 7

Village of Arlington Heights

Back 7

πs had a plan to actually develop the disputed area and had been pursuing that development, w/ only the zoning ordinance blocking it

Front 8

3rd Party Standing

Back 8

Normally, a party does not have standing to assert the rights of another, but a party who has satisfied the constitutional requirements for his own claim may be allowed to raise the claims of an absent third party in certain situations.

Front 9

Craig v. Boren:

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3.2 Beer case: Court uses its prudential powers to hold that a Vendor has 3rd Party standing to assert gender discrimination claim for the affected class: ♂s under 18 because there is an indirect violation of her rights in that she could loose her license by selling to them and also because she didn’t pursue the suit on her own, but as a secondary to someone with primary standing, who only recently had to bow out of the case

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3rd Party Standing Exceptions:

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Special Relationship/ Fiduciaryo
Civil Rights Caseso
Ad Hoc Exception

Front 11

TAXPAYER & CITIZEN STANDING

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Citizens lack standing to challenge constitutionality when generalized grievance shared with other citizens because their injury is too abstract

Front 12

Flast v. Cohen

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Court upheld taxpayer standing on an unconstitutional expenditure when 2 part test met

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Flast’s 2 Part Test

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o Program challenged must be authorized under Art. I, §8 under taxing/ spending clause
o Challenged acts must include specific constitutional limitations on the exercise of taxing and spending (establishment clause is deemed by the SCt to be a specific constitutional limitation on the taxing and spending power)

Front 14

Lujan v. Defenders of Wildlife

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Court dismissed for lack of standing a challenge to governmental actions that threatened some endangered species by 2 scientists who had studied those threatened species in the past and had planned to study them again in the future. The Court said that the potential harm to their research caused by the animals’ extinction was too speculative because there was not a present injury in fact.

Front 15

Raines v. Byrd

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6 Congressman who voted against the Line Item Veto Act had their challenge to the statute’s constitutionality dismissed for lack of standing because their claim that the act usurped their legislative power was deemed too abstract. The claim did not constitute a concrete injury in fact both because the veto power hadn’t been used yet, and because their grievance was an institutional injury that affected all members of Congress equally and thus was too widely dispersed.

Front 16

Clinton v. City of New York

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The Court upheld standing in a case challenging the Line Item Veto Act after the president had exercised the power against spending programs effecting the State of New York.

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MOOTNESS

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Hinges on the Court’s inability to give advisory opinions such that if something happens and the relief π seeks is no longer necessary, then the case must be dismissed as Moot

Front 18

DeFunis. v. Odegaard

Back 18

Court dismissed for mootness a case brought by a guy who challenged a law school affirmative action policy because he was able to register for his third year before his case made it to the Supreme Court. Court held it moot because the school said they would not reneg his registration for the last semester.

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EXCEPTION TO THE MOOTNESS DOCTRINE:

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CAPABLE OF REPETITION , YET EVADING REVIEW

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RIPENESS

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: Injury is conceived of in the future, but there is no significant present or imminent injury in fact, thus case must be dismissed until its ripe

Front 21

United Public Workers v. Mitchell

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: In evaluating the constitutionality of the Hatch Act disallowing public servant’s to assist in political campaigns, the Court held that the π who had assisted with a campaign had standing because he faced the risk of losing his job, while the others who merely wanted to assist with campaigns, but had not yet out of fear of loosing their jobs could not because their claims were too speculative.

Front 22

City of LA v. Lyons

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Court upheld standing for damages resulting from an improper police chokehold, but the Court said that his claim was not ripe enough to support an injunction against LAPD’s future use of the chokehold or declaratory relief because he could not prove he was in any imminent danger of being pulled over in the same manner and being subjected to another chokehold.

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POLITICAL QUESTION DOCTRINE

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Doctrine recognizes that certain cases or matters are best resolved by the political branches of government.

Front 24

Baker v. Carr

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Court articulated the following factors:
1) Does the issue involve the resolution of questions committed by the text of the Constitution to another branch of government?
2) Would resolution of the issue demand that a court move b/y areas of judicial expertise?
3) Do Prudential considerations counsel against judicial intervention?

Front 25

Powell v. McCormack:

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: Court held that no political question was presented when an ousted Congressman asked the Court to review Congress’ power to exclude him under Art. 1, §5, because Congress was really trying to expel him.

Front 26

Nixon v. U.S.:

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Court declined to consider the merits of a claim by a federal judge who had been removed by impeachment and who objected to the Senate’s use of Rule 11 to have subset of the body vote on it instead of the whole Senate body. Court said it was a political question because the issue had been committed by the Constitution to the Senate, there were concerns re: how to fashion relief in the event that he won on the merits, and concerns for the lack of finality the court process presented for impeachment questions.

Front 27

INTERSTATE COMMERCE CLAUSE: THE HIPPO ON A TIGHTROPE

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ART. 1, §8: “The Congress shall have the power to lay & collect taxes, duties, imposts and excises, defence & general welfare….To regulate Commerce with foreign nations & among the several states, & with the Indian tribes.”

Front 28

Schechter Poultry v. U.S.:

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Court held that a Federal minimum wage regulation that conflicted with a NY chicken company’s wages was outside the ICC because although the sale of chickens in NY has implications on labor practices in other states, it is still an indirect effect. So, once the chickens have come to rest in NY with the retail seller, they are a matter of NY’s regulatory concern.

Front 29

Wickard v. Filburn:

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Court held that because a wheat farmers’ growth of wheat for personal consumption had a substantial aggregate effect on IC, the Feds were authorized under ICC to regulate those activities
• Wickard = “high water mark” for ICC interpretation

Front 30

Lopez:

Back 30

Court created a compromise, two part test to toss out the Gun Free Schools Act, which disallowed possession of a gun w/in a 1,000 feet radius of a school. Within that radius, federal criminal law applied based on the idea that the rise in crime and diminished educational opportunities from kids staying home out of fear of gun violence at school would have a substantial economic effect because of a less educated work force.

Front 31

U.S. v. Morrison

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: Court used Lopez test to say that Congress had no power to pass the Violence Against Women Act because it is not regulating an economic activity, but instead dealt with violent crime, which typically falls within the domain of the States’ police powers.

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categories of Lopez

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o Use of channels of IC (highways, air routes)
o Instrumentalities of IC even though the threat may come from intrastate activities
o Those activities having a substantial relation to IC (railroads, telephones, internet)
 Economic activity
 Substantially affects IC

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Raich

Back 33

weed case like Wickard

Front 34

DORMANT COMMERCE CLAUSE:

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: If State regulation imposes a great burden on interstate commerce it is in violation of the Dormant Commerce Clause• Balancing test conducted to determine if the regulation provides an unduly burdensome advantage to state residents at the expense of nonresidents?

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National League of Cities:

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Court held that states are sovereign and Congress has no business telling the States how long employees should be working, so yes, additional check

Front 36

NY v. U.S.:

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Court struck down one of Congress’ attempts to get the states to regulate low-level radioactive waste sites. Court said that Congress can regulate directly in a given area, but they cannot commandeer the states and force them to regulate in a given manner.

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Appropriate methods of federal regulation

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o 1) Provide monetary incentives for complying by attaching a condition to the receipt of federal funds
 South Dakota v. Dole: No constitutional flaw in a federal statute directing the Secretary of Transportation to withhold federal highway funds from States failing to adopt a minimum drinking age
o 2) Permissive regulation allowing states to regulate as they wish
o 3) Feds can pre-empt State regulation by regulating in a way that Feds feel appropriate so that anything contrary is pre-empted by the Supremacy clause

Front 38

Printz v. US

Back 38

Court held that a section of the Brady Bill which required state law enforcement personnel to conduct background checks violated the 10th Æ because Congress was in essence “conscripting” state officers and thus commandeering the states.

Front 39

“THE JUDICIAL POWER OF THE U.S. SHALL NOT BE CONSTRUED TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS OR SUBJECTS OF ANY FOREIGN STATE.

Back 39

• 11TH Æ is a jurisdictional bar to suits brought against state governments in federal court
• States can sue as πs in federal court, but can’t be sued as Δs in federal court

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11TH Æ TEST:

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1) Is π one to whom the Æ applies?
2) Is Δ in the law suit the State?
If State directly, clearly the suit is barred, but if state actor, official, entity, etc.?
School Board, University of NE, City Council…
3) Are there any exceptions to the 11th Æ bar?

Front 41

Ex Parte Young:

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Court held that a suit against a state official seeking prospective relief (to order that official to comply with federal law) is not barred by 11th Æ

Front 42

Edelman:

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: Court held that a suit against a state official seeking retroactive damages from state coffers is barred

Front 43

Pennhurst State School & Hospital v. Halderman:

Back 43

Court said the federal courts have no role in a conflict between a private citizen and a state actor over state law.

Front 44

EXERCISE OF SOVEREIGN IMMUNITY IN OTHER CONTEXTS:

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Congress may, in determining what’s appropriate, provide for private suits for enforcing substantive protections of the 14th Æ that are impermissible in other contexts, but a clear statement of Congressional intent is needed to enhance that jurisdiction

Front 45

Seminole Tribes of Florida v. Florida:

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: Court held that Congressional attempt to remove state immunity and expand federal court jurisdiction to enforce the Indian Commerce Clause was improper because the 11th Æ was enacted after Article III.

Front 46

BILL OF RIGHTS:

Back 46

• Original intended as a check on Fed Govmt power, not state power
• Two competing notions: right of self-governance & protection of individual rights by judicial activism
• Duncan says problem with “Great First Principles” is that our definitions change over time with society & the Court
o Legislature have greater ability to change over time says Duncan

Front 47

PRIVILEGES & IMMUNITIES CLAUSE:

Back 47

Barron v. City of Baltimore: SCt held that the Bill of Rights, specifically, the federal takings clause only limits federal government, does not apply to the states.

Murray’s Lessee v. Hoboken Land & Improvement Co: Due Process is a procedural right dealing with notice, opportunity & fair trials.

Front 48

Dred Scott v. Sandford:

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SCt created substantive DP rights by striking down the Missouri Compromise, saying that it violates slave owner’s rights to take his “property” wherever he wants to.

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Slaughterhouse Cases:

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SCt rejects an expansive approach to the 14th Æ, says 14th was passed to address the lingering in justices of slavery and the P&I clause should not be read expansively b/c the Court doesn’t want to engage in a continual ad hoc evaluation of every individual liberty that arises.
• EP only applies to African slaves
• State Constitution defines scope of state P&I, Fed Constitution provides the scope of Fed P&Is

Front 50

Saenz v. Roe

Back 50

SCt held unconstitutional a California law limiting welfare benefits for families residing in the State less than a year to the amounts they would have received in their states of prior residence on the grounds of the 14th Æ’s P&I clause & status as a national citizen because one of your rights as a national citizen is to select where you reside.

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INCORPORATION:

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DP Clause of the 14th Æ incorporates the BofR by reference

Front 52

Palko v. Connecticut

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SCt held that the 5th Æ procedural right of Double Jeopardy is not fundamental enough to be incorporated by the 14th Æ.

Front 53

EQUAL PROTECTION CLAUSE:

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: sliding scale for liberty invasions

Front 54

Lochner v. NY

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SCt held that a NY law limiting the work hours of bakers was violated substantive DP because the law is not a “fair, reasonable, and appropriate exercise of the police power.”

Front 55

US v. Carolene Products:

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: SCt uses a true rational basis test, giving deference to Congressional judgment, saying they will presume Congress acted appropriately even if there is no evidence to show it has; need clear facts disputing it.

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Footnote Four:

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not all liberties are created equally, when laws harm discrete & insular minorities, we need to protect them

Front 57

Williamson v. Lee Optical:

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SCt applies rational basis test to rubber stamp a law imposing burdens on opticians, by saying the Legislature might have concluded the law was necessary.

Front 58

Meyer v. Nebraska:

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SCt struck down law banning the teaching of the German language, saying due process allowed them to decide free of state interference, what they wanted to teach their kids

Front 59

Pierce v. Society of Sisters

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: SCt struck down law requiring parents to send kids to public schools, saying that due process protects parents from state interference in child-rearing.

Front 60

Griswold v. Connecticut

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: SCt held unconstitutional a law banning the use of contraceptives even by married couples based on an implicit constitutional right to marital privacy. Ct. also introduced strict scrutiny requiring compelling state interests.

Front 61

• Right to Privacy = fundamental

Back 61

based on “penumbra formed by an emanation”
o Penumbra = partly lighted area surrounding the complete shadow of the body
o Duncan says right to privacy is lurking in the shadow of the BofR
o Right to privacy emanates from explicit provisions, but is not itself explicit
 1st = right of expressive association (think Boys Scouts anti-gay policy)
 3rd = prohibition on quartering soldiers
 4th = unreasonable S&S
 5th = against self-incrimination etc.
 9th = catch-all disclaimer: just ‘cause its not enumerated doesn’t mean its not protected

Front 62

Moore v. City of East Cleveland

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SCt held in plurality opinion that zoning law disallowing kid to live with grandma was unconstitutional because sub DP protects the sanctity of the family unit as a fundamental right that cannot be interfered with out compelling reasons.

Front 63

Zablocki v. Redhail:

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: SCt holds there is a fundamental right to marry, thus statute disallowing deadbeat dads to marry was unconstitutional.

Front 64

Michael H. v. Gerald D.

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SCt held in plurality opinion that a bio dad has no fundamental right to invade the sanctity of a married couple’s relationship to pursue a relationship with his daughter

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Troxel v. Granville:

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: SCt held in plurality opinion that broad statute allowing the Court to trump parental preferences for visitation is unconstitutional.

Front 66

Roe v. Wade

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SCt holds that an unborn child is not a person for purposes of the 14th Æ, but the mother has privacy interest that conflicts with the state’s interest in protecting the potential human life of the fetus, thus they adopt a trimester approach.
• Trimester approach:
o 1st: state cannot regulate at all, ♀ has absolute right to an abortion
o 2nd: state may regulate facilities etc. to protect mother’s safety, but cannot restrict access
o 3rd/ viability: state now has interest in protecting potential life of fetus, thus can proscribe abortion except when necessary to protect mother’s health
o Uses a sliding scale for when an interest becomes compelling

Front 67

Planned Parenthood v. Casey:

Back 67

: SCt in a plurality opinion affirmed the “central holding of Roe,” namely that a woman has a right to choose to have an abortion pre-viability free of undue burdens by the state during that period and confirmation of the State’s ability to prohibit abortion post-viability except for when the woman’s health is at issue as defined in Doe.• Undue Burden test introduced

Front 68

Stenberg v. Carhart

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SCt declared unconstitutional NE’s partial birth abortion law because its ban was not limited to post-viability and it did not provide for a mother’s health exception

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Bowers v. Hardwick

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SCt held that there is no constitutional right to engage in consensual acts of homosexual sodomy in private because the Court framed the issue narrowly and said homosexual sodomy is not a right deeply revered by the Constitution. In applying the rational basis test, the state’s interest in legislating morality was enough to justify the law.

Front 70

Washington v. Glucksberg

Back 70

: SCt held there is not fundamental right to commit suicide with another’s assisstance.
1) We have regularly observed that the DP Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in the Nation’s history and tradition”
2) “careful description” of the asserted fundamental liberty interest…

Front 71

Railway Express Agency v. NY:

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: SCt upheld a statute banning advertisements on vehicles which do not advertise for the owner of the vehicle, despite the fact that it was both over & underinclusive, using a rational basis test for the “economic” regulation.

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FCC v. Beach Communications:

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SCt held that in areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

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Loving v. Virginia:

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: SCt struck down miscegenation laws using strict scrutiny applied b/c of the fundamental right involved and b/ of the race based classification used.

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Plessy v. Ferguson

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: SCt held that separate but equal rail cars did not violate the Constitution

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Brown v. Board of Education

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: SCt overturned Plessy, saying separate can’t be equal because the separation connoted that one race was inferior to the other such that forced interaction would demean the “superior” race.

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Bolling v. Sharpe

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: SCt held that the 14th Æ EP clause could be transported into the 5th Æ by implication so that the District of Columbia’s separate but equal policies could be struck down.

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Reed v. Reed:

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: SCt held that an Idaho law that designated ♂ as estate administrators, all things being equal was arbitrary and thus impermissible

Front 78

Frontiero v. Richardson

Back 78

SCt toyed with strict scrutiny in a plurality opinion where it struck down a military benefits plan that forced ♂ spouse of ♀ officers to prove their dependency, but did not require the same for ♀ spouses of ♂ officers.

Front 79

Craig v. Boren:

Back 79

: SCt created intermediate scrutiny defining gender as a quasi-suspect class whereby legislative efforts must serve important governmental interests and must be substantially related to that interest.

Front 80

Rostker v. Goldberg:

Back 80

SCt held that the draft distinction b/t ♂ & ♀ is ok based on concerns for extra deference in military matters.

Front 81

US v. Virginia

Back 81

SCt strikes down VMIs admissions bar on women because there is nothing comparable to VMI in Virginia for ♀ and Virginia’s justifications for its policy seem pretextual.

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DIFFERENT TYPES OF CLASSIFICATIONS FOR STRICT SCRUTINY:

Back 82

o Classification on the face of the law, i.e., Brown v, Board of Ed.
o Law Neutral on its face, but applied in a racially discriminatory manner, i.e, Yick Wo Laundry case
o Pattern of Unequal Effect is NOT ENOUGH; MUST BE INTENTIONAL DISCRIMINATION

Front 83

Washington v. Davis:

Back 83

SCt held that unequal results on a police qualifying test are not sufficient to turn a race neutral test into a racially discriminatory classification.

Front 84

Village of Arlington Heights

Back 84

SCt held that a pattern of impact alone was not enough to show intentional discrimination, discrimination must be a motivating factor, although historical background & a specific sequence of events may shed light on the decision-maker’s purpose.

Front 85

Kahn v. Shevin

Back 85

: SCt upheld a tax break that applied to widows, but not widowers because it was based on intermediate scrutiny, saying that the law was intended to remedy economic disparities b/t ♂&♀ created by the glass ceiling.

Front 86

Califano v. Webster

Back 86

: SCt upheld a program that allowed ♀ to throw out the their three lowest wage earning years as a remedy to glass ceiling effects in job market

Front 87

Orr v. Orr

Back 87

: SCt held unconstitutional an Alabama law disallowing ♂ to seek alimony from ♀ b/c the law only benefited those who didn’t need it.

Front 88

Mississippi University for Women v. Hogan

Back 88

: SCt struck down the nursing college’s policy of only allowing ♂ to audit their courses because it perpetuates a stereotype instead of remedying ♀’s positions.

Front 89

City of Richmond v. J.A. Croson Company:

Back 89

: SCt refuses to apply a lower standard for benign discrimination because of concerns that race is just too suspect.

Front 90

Grutter v. Bollinger

Back 90

SCt upheld Michigan Law School’s critical mass approach to affirmative action admissions because it did not rely on quotas and allowed for individual assessments of the candidates various qualifications and assets.

Front 91

City of Cleburne v. Cleburne Living Center

Back 91

: SCt struck down a zoning ordinance that disallowed group homes for the mentally handicapped without a special use permit. The Court refused to classify MRs as a quasi-suspect class, but struck it down as not rationally related b/c the neighbors fears of the unknown did not constitute a legitimate basis

Front 92

Romer v. Evans

Back 92

SCt struck down a CO constitutional amendment that allowed discrimination against gay people and disallowed the passage of laws which would prohibit such discrimination.

Front 93

. Standing Generally

Back 93

1. Constitutional Bar To Hear Case
2. Judicial Restraint Limits Court
3. Must Have Case Or Controversy
a. art. III sec. 2
4. Need An Injury In Fact
a. personal stake
b. concrete harm
i. insure an adversary system
1. don’t want intentional losses
c. injury must be caused by the law/action challenged
i. individual resident’s problem in Warth
d. cannot bring claims of other persons harmed unless you are harmed
i. must be harmed directly not indirectly (Military Women Hypo)

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Ripe Claim

Back 94

a. now – not future potential for injury (Lujan)

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Justicability

Back 95

a. why limit review to cases and controversies?
i. why cant a taxpayer/citizen file?
1. would have good advocacy (ACLU, etc.)
b. stare decisis – ensured that future courts will not substitute policy for law
i. future courts must respect past courts even if they think it is wrong
c. justicability – ensures present courts will not reach out and take cases that have not property come before them in the context of normal litigation
i. particularly if present courts expect future courts to respect them
1. if present courts have restraint, future courts respect them
a. claim must ripen and ferment
d. representation principle – present plaintiffs bind future plaintiffs
i. don’t want someone w/out an injury to affect litigants with injuries
1. takes away future litigants’ rights
2. advocacy concern – takes a fall
a. don’t want to make a job out of litigation
e. pact b/t present and future courts
i. play b/t past – present – future courts
1. don’t want preference to present courts to tie hands

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3rd Party Standing

Back 96

1. A Does Not Have Standing To Assert The Legal Rights Of B EVEN IF:
a. A has a sufficient injury in fact
i. A is not the best choice as a litigant (problems above)
2. If There Is An Injury-In-Fact, No Longer Constitutional Issue BUT
a. prudential standing doctrine
i. judicial discretion
1. policy decision not to dilute the 3rd party’s rights
2. delayed objections play a role

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Generally Allowed Exceptions

Back 97

a. (1) doctor-patient
b. (2) civil rights cases
c. (3) private attorney general

Front 98

Taxpayer/Citizen Standing

Back 98

1. One With A Generalized Grievance Does Not Have Standing
2. Taxpayer Standing (Frothingham)
a. no standing to raise other constitutional challenges to federal expenditures
3. Exception
a. to challenge fed. stats authorizing expenditures violating the establishment clause
b. Flast: this does not apply to land grants

Front 99

Mootness

Back 99

1. “Old Cases”
2. Constitutional Limitation To Hear Cases And Controversies (DeFunis v. Roe)
a. the outcome must effect you otherwise, advisory
3. Also Prudential Self-Restraint
4. Class Action
a. the case may be moot via the class representative BUT
b. this does not affect the whole class
i. class actions are set up to avoid mootness (e.g., young school kids)
5. A Case Must Remain Alive All The Way Through The Appellate Procedure BUT
a. pregnancy issues and others could never be litigated this way
i. those similarly situated are always screwed

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6. Capable Of Repetition Yet Evading Review

Back 100

a. (1) could happen again to this plaintiff
i. i.e. Roe may get pregnant again
b. (2) yet evading review when it does
i. i.e. baby is always born before the time needed
c. seen in voting residency sometimes

Front 101

. Ripeness

Back 101

1. “New Cases”
2. Constitution Requires Concrete Actual Injury OR
3. Immanent Threat Of A Concrete Injury

Front 102

Ripeness via Un-enforced Laws

Back 102

1. No Current Or Immanent Threat Of Prosecution (Poe)
2. What About A Moral Obligation To Follow The Law Regardless?

Front 103

Political Questions

Back 103

1. Does Not Mean The Court Stays Out Of Controversial Issues
2. Political Question Doctrine
a. (1) if a particular issue has been committed by the constitution
b. (2) to another branch of the federal government
c. (3) the issue is non-justiciable
d. separation of powers
e. the existence of a “political question” does not bar a suit for a bona fide controversy

Front 104

3. Elements In Determining Political Questions

Back 104

a. (1) does the issue involve resolution of questions committed by the constitution to one of the other branches of government?
b. (2) would resolution of the issue require resort to particular expertise not possessed or outside that possessed by the court?
c. (3) do prudential considerations (matters of constitutional policy) counter against judicial review?

Front 105

4. Examples Of Political Questions

Back 105

a. war issues – once war is declared, unquestioning adherence
b. judicial nominations – power to the President accountable

Front 106

Commerce Clause Power Of Congress

Back 106

a. congress has the power to regulate commerce with foreign nations, among the several states, and with Indian tribes

Front 107

Commerce Clause Original Limitations

Back 107

a. only regulation of the stream of commerce
b. not applicable to production/manufacturer (crops, coal, assembly)
c. not applicable to retailer
d. not commerce until it enters the actual stream of commerce
e. big deal during new deal

Front 108

3. Wickard v. Filburn (Wickard)

Back 108

a. Rule: even if the appellee’s activities BE LOCAL, even if it is NOT interstate commerce and even if it not be regarded as COMMERCE, it may still, be reached by Congress if it exerts: a substantial economic effect on interstate commerce
b. how does this have a substantial effect?
1. class of activities effect interstate commerce
a. even if alone is local and not commerce

Front 109

4. Lopez (Lopez)

Back 109

a. productive economic activity
i. gun possession is personal not productive

Front 110

5. Morrison

Back 110

a. violence against women act not a proper exercise of power

Front 111

Raich

Back 111

a. if federal law is valid, it trumps any state law

Front 112

New Commerce Clause

Back 112

a. (1) congress can regulate the channels of interstate commerce
b. (2) has the authority to regulate and protect the instrumentalities of interstate commerce and persons or things in interstate commerce
c. (3) has the power to regulate activities that substantially affect interstate com

Front 113

Tenth Amendment

Back 113

a. powers not delegated to the states by the constitution
b. nor prohibited by it to the states
c. are reserved to the states respectively, or to the people

Front 114

10th amendment incentives

Back 114

d. (1) monetary incentives
i. constitutional – if you pass the laws you get the money
ii. Doll – highway funds for drinking age
iii. standard spending power (RLUIPA) – tell fed to shove it if want
e. (2) access incentives
i. constitutional – if you don’t pass laws, other states limit your access
f. (3) take title provision
i. unconstitutional – cannot commandeer state governments
1. treating states as a subdivision of the federal government
ii. basically the same as a direct order to regulate OR forcing the states to assume liabilities of certain state residents
1. choice b/t two unconstitutional techniques is no choice at all

Front 115

Printz

Back 115

a. requiring background checks for guns
i. seems okay BUT
b. requires the states to do the checking
i. states bear the financial burden
ii. states bear the complaining
iii. congress gets the credit
c. cannot compel the states to enact or administer federal regulations
i. can bribe but not force

Front 116

B. Eleventh Amendment

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1. Definition
a. the judicial power of the US shall not be construed to extend to any suit
b. commenced/prosecuted against one of the states by citizen of another state OR
c. by citizens or subjects of any foreign state
i. thus, federal courts lack jurisdiction if falls under 11th

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11th amendment Three Basic Questions

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a. (1) is the plaintiff one to whom the amendment applies?
i. citizens suing states
1. including citizens suing their own states (Honz)
is the defendant in the lawsuit a state?
i. states being sued
ii. political subdivisions do not count
1. school boards, city councils, etc.
3. Ex Parte Young
a. a suit against a state official seeking to enforce the official to comply with the constitution in the future is not barred by the 11th as a suit against the state

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Privileges and Immunities

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a. applies to those traveling or passing through or working
i. but don’t intend to stay
b. the citizens of each state shall be entitled to the privileges and immunities of the citizens of the several states

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Privleges and immunities guarantees

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c. does not guarantee absolute equality
i. entitlement of the fundamental rights: (Corfield)
1. protection by gov should be the same (police, fire, etc.)
2. equal treatment in terms of property acquisition
3. allow one to pass through the state – no visas
4. to claim habeas corpus
5. maintain actions in the courts
6. pursue professional or employment
7. no higher taxes
8. entrance into state bar examination if otherwise qualified

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3. Barron

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a. concluded that the bill of rights does not apply to the states
i. (1) purpose
1. was to create and limit national government
ii. (2) language
1. says “congress” would have said states if meant to
iii. (3) history
1. universally understood the BOR don’t apply to states

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5th Amendment

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a. “. . . nor be deprived of life, liberty, or property without due process of law. . .”

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Procedural v. Substantive

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a. only a procedural requirement or substantive rights to liberty and property?
b. if it is substantive, what are the effects?
i. every law takes away liberty
ii. every law classifies
c. what does liberty mean?
i. it cannot mean all liberty or there would be no laws
1. which liberties are substantively protected?
ii. fundamental liberties?
1. which ones are those?

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14th Amendment Privileges and Immunities

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1. Fourteenth Amendment
a. applies to citizens
2. Slaughter-House Cases
a. always health, safety, and efficiency concerns
b. have problem with the great majestic generalities:
c. rejects the expansive view of the 14th amendment
i. purpose of civil war amendments was slavery eradication
2. history lends itself to this – does not care about econ of butchers
d. privileges and immunities only protects those unique to a citizen of the US
1. what about out of state tuition v. welfare?

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. Incorporation Doctrine

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1. 14th Amendment Due Process
a. due process reference to liberty, life, property
i. procedure v. substance
b. those portions of the BOR that are deemed to be FUNDAMENTAL or IMPLICIT
concept of order and liberty are absorbed by the due process clause
i. substantive rights the lack thereof would not be a free society

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Incorporated Amendments

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a. first
i. speech, establishment, etc.
b. fourth
i. search and seizure
c. fifth
i. indictment, double jeopardy, self-incrimination, takings
d. sixth
i. speedy, public, jury trial; notice of charge, confrontation, right to counsel
e. seventh
f. eighth
i. bail, excessive fines, cruel and unusual punishment

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Rational Basis

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a. Ends = legitimate governmental interest
b. Means = rational or conceivable b/t law and ends
law is presumed constitutional

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Strict Scrutiny

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a. Ends = compelling governmental interest
b. Means = necessarily related to the ends
i. least restrictive means to achieve the end
1. no reasonable alternative
e. applied to fundamental liberties

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Intermediate Scrutiny

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a. arising from equal protection –gender
i. some classifications by gender make sense, others don’t
b. Means = important governmental interest
c. Ends = substantially related
i. least restrictive means
1. no reasonable alternative

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5. Identify The Interest

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a. some classifications are classifications of life
b. same with liberties
i. some are ordinary, some are fundamental

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Right Of Privacy

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1. Meyer v. Nebraska
a. forced to teach in English – substantive due process
i. privacy to marry, establish a home, and bring up children

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Where is PRivacy found in BOR?

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i. 3rd quartering of troops – generalized freedom of privacy herein
ii. 1st – married couple association and autonomy over reproduction
iii. 4th – protection against unreasonable S&S – privacy implications
iv. 5th – self-incrimination – privacy internally
v. 9th – rights retained by the people

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Abortion

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1. contraception married to single to abortion
2. reproductive autonomy
a. if abortion = contraception – important/intimate decisions
3. c/l style progression

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Three ways to decide abortion

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d. three potential ways to decide:
i. (1) abortion is constitutionally protected
ii. (2) abortion is constitutionally prohibited
1. “person” issue
a. court concludes person in constitution = president, senate,
b. Ely – this logic suggests only adults and NOT corporations
2. if this applies, fetus has a right to life unless consents otherwise
iii. (3) constitution is silent
1. should be to the legislative branches not the court 

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Trimester governmental interests?

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iii. (1) first trimester
1. no compelling interest at all
iv. (2) second trimester
1. maternal health becomes compelling
a. thus regulations may include facilities, equipment, etc.
v. (3) third trimester (fetus viability)
1. protecting potential human life becomes compelling
a. a state may proscribe abortion EXCEPT
i. if abortion is necessary to protect mother

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Planned Parent Hood Approach

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i. (1) pre-viability
1. woman has a right to choose b/f viability
2. state may not impose an undue burden on this choice
a. “substantial obstacle in path of abortion”
b. Casey allowed:
i. informed consent
ii. 24 hr waiting period
iii. minor consent of parents IF judicial bypass
c. Casey prevented:
i. signing stating informed husbands (effects < 1%)
1. was a physical abuse (or fear) exception
2. was exception if H not father(2) post-viability
1. state may prevent abortion here UNLESS
a. threatening to the life of the mother

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Glucksberg Test

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a. (1) right objectively and firmly rooted in nation’s history and tradition
b. (2) careful description of the fundamental liberty interest

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5 types of Classification and how Duncan describes it:

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Five Types of Classifications
1. Perfect Classification
a. all T’s are M’s and all M’s are T’s
b. the means completely achieve the ends
c. restrict fundamental right or suspect class will only stand under strict if perfect
d. all needy gets help, no one not needy gets help
2. Irrational Classification
a. no T’s are M’s
b. flunks rational basis
c. help the rich
3. Underinclusive Classification
a. all T’s are M’s but some M’s are not T’s
b. some needy gets help, many needy still don’t
c. probably pass rational basis but probably not heightened or strict
d. fits some purpose but not all purpose
4. Overinclusive Classifications
a. all M’s are T’s but some T’s are not M’s
b. all needy gets help and some rich gets help
c. more than needed
5. Both Under and Overinclusive
a. anyone who does not have a car gets help
b. some right don’t have cars, some needy do have cars
c. sometimes meets the ends, sometimes doesn’t
d. probably pass rational basis

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What are the types and examples of classifications

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1. Suspect
a. strict
b. race, alienage, national origin (RAN)
2. Quasi-Suspect
a. intermediate
b. gender, illegitimacy (GI)
3. Non-Suspect, Normal, Ordinary
a. rational basis
b. economic classifications, age, size, disability
c. general deference to court for means of achieving legitimate interest (Railway)
d. seem to let the court pretty much determine what the interest is
e. legislature does not have to think or even express the achieved reason
i. achieved interest does not have to challenge or motivate legislature
f. rational basis is generally the antithesis of judicial humility

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1. What Does It Take To Get To Strict Scrutiny

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a. (1) discriminating racial classification on its face
b. (2) uneven application of a neutral law
i. Yick Wo
1. inferred discriminatory intent

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Disparate Impact

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a. still applied evenly and neutral on fact
b. tax laws, welfare, Jews as professors
c. is not enough for strict scrutiny standing alone (Arlington Heights)
i. equal laws NOT equal results
d. must find an invidious discriminatory intent
i. intending to discriminate, purpose to classify

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b. Adarand

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i. basically makes 5th and 14th both = strict
ii. all racial classifications whatever = strict

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Race Quotas

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c. Grutter
i. UM used race as a factor to reach a critical mass
1. critical mass was some range of number so not to isolate
a. is this really a range or a quota? still have lowest number
ii. Bakke held quotas unconstitutional
1. set numbers
iii. compelling interest shifted from remedying discrimination to
1. diversity in education
a. enhancing law school, breaking down stereotypes
b. not having “different views” which did not pass in FCC
2. could not show an objective existence of discrim at UM anyway
iv. is race necessary? is it narrowly tailored?
1. couldn’t they just lower the admission standards?
2. Court said they can keep high standards and have diversity
3. Court decided this under a deferential posture
a. normally strict scrutiny is never deferential
4. quota was NOT narrowly tailored

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Classifications Disadvantaging Retarded, Etc

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a. dislike of a group or fear of a group is not a legitimate state interest
i. even if a non-suspect class

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c. Romer

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laws allowing exclusion by sexual orientation for landlords, churches, etc.
ii. problem:
1. very broad  including public libraries, etc.
iii. Court said even under rational basis, so BROAD and over inclusive
1. as to fail the rational basis test
a. not reasonably related even with
i. leg state interest to protect private people