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157 Cards in this Set

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What are the weaknesses of Articles of Confederation?
Weak national authority, couldn't resolve interstate boundaries, commerce, and international defense.
What is the significance of a written constitution? Contrast this with England.
The American Constitution was described by Paine as a thing antecedent to government; government is a creation of the Constitution; people are sovereign, not the government.
In contrast, the English system gave the parliament unlimited power, Blackstone said that what Parliament does, no power on earth can undo.
What is the significance of a Republican government ("We the people") of limited powers?
Government limited by Constitution; constrains legislation; people are sovereign
What are the powers enumerated in Article I? What specifically in Section 8?
Created Congress, legislative powers in 2 branches.
Section 8 defined Congresses specific powers - express and implied.
What are the powers enumerated in Article II?
Created the Executive branch - defines powers and qualifications.
What are the powers enumerated in Article III?
Creates judiciary - Supreme Court - authorizes Congress to create lower courts; defines jurisdiction of Supreme Court.
Why divide power between three branches?
Centralization of power was considered tyranny; strong presumption of inaction - less government is best.
Why maintain two levels of government?
Federal government has limited powers - must be enumerated by the Constitution.
State government is inherent - valid unless violates a specific limitation imposed by the Constitution.
Some functions of government are clearly handled better at the local level, some require national government.
What is the significance of Article VI?
The Supremacy Clause states that once a Federal law is enacted, it is supreme, conflicting state laws are invalid and are preempted.
What is the significance of Article V?
The Amendment process, makes it hard to amend, only 17 since the Bill of Rights, makes it hard to change during emergencies, protects from dictatorship and majority rule.
Which branch would be the "final" arbiter of constitutional meaning?
The Constitution doesn't say but this evolved into Judicial Review.
What case established the principles of Judicial Review?
Marbury v. Madison
What is judicial review?
That the court can declare acts of Congress unconstitutional. "It is emphatically the province and duty of the judicial department to say what the law is."
What is the historical context of Marbury v. Madison? Expand on the conflict between Federalists and Republicans.
Federalists (Marshall) were concerned about controlling national power, and the incoming Republicans were skeptical of nationalizing power and were pro states rights.
What were the sources for finding judicial review in Marbury by Chief Justice Marshall?
Text - supremacy clause, oath clause, arising under the constitution, Article III.

History - Federalist 78 by Hamilton that courts have special competance in Constitutional matters.
What are the arguments for judicial review in a democracy as proposed by Federalist 78?
Insulation: independent, lifetime appointments so they have the security to interpret the law without fear of retaliation by other political branches (reducing salaries)

Expertise: the courts approach is tempered by judicial craft and precedent.

Weakness: least dangerous branch, can't raise an army or accumulate power, protects minority rights against the political majority.
What is the Counter-Majoritan difficulty?
That individuals on a Supreme Court are not elected but can void acts of a democratically elected legislature.
What is the Hand/Wechsler debate?
Hand: no certainty of power of judicial review - therefore the court should use it less frequently and use restraint.

Wechsler: argument strongly based in the Constitution - activist - more willing to see the court assert its authority over legislature.
What is the significance or Article V in thinking about the scope of judicial review?
In an ideal world it is better to amend, but in the real world its impractical. BUT if Congress needed to, it could initiate an amendment to overtturn a constitutional interpretation of the Supreme Court and this serves as a constraint on judicial pwoer.
Was Cooper v. Aaron a correct reading of Marbury?
Yes, in referring to desegregation of arkansas schools the court legitimizes power by referring to Marbury and backing a strong view of judicial supremacy = strong view of Marbury.
What is Meese's criticism of Cooper v. Aaron and Marbury?
That Cooper expands Marbury by confusing Marshall's assertation of judicial authority to interpret the Constitution with judicial exclusiveness. That congressional and executive officials should consider it part of their own duty to engage in Constitutional interpretation.
What is Constitutional plurism and what is the problem with it?
It means for each branch to police itself and don't pass the buck to the Courts. Problem is that society would then need to be more vigilant. Each branch is self-aggrandizing attempting to centralize power in its own branch.
What is the Political Question Doctrine?
It makes clear the distinction between a matter of law versus a matter of politics. A political question cannot be decided in court.
Describe the 2 strands of the Political Question Doctrine? (Seperation of powers / Prudential concerns)
Separation of Powers principles where the Court will not decide matters which it concludes are committed by the Const. to other branches of government for decision.

Prudential concerns - some otherwise Const. legal questions ought to be avoided to prevent judicial embarrassment.
What is Originalism?
A theory of constitutional interpretation - seeks to protect values clearly stated in text of the Const. or derived from framers intent. Limit when Court can review which is desirable because the Court is Counter-Majoritarian. Democracy means majority rule, can't leave interpretation to unaccountable judges. (Scalia, Thomas)
What is Non-Originalism?
A theory of constitutional interpretation that seeks to protect unstated values, that the court can legitimately interpret, does not require an amendment to do so, that originalism is impossible to apply, text is vague, framer's intent is unknowable, strict interpretation can lead to ridiculous results. Example, 2nd amendment refers to Pres and VP as "he".
What are some other theories of constitutional interpretation besides originalism?
Textual, Structural, Dotrinal precedent based arguments, balancing arguments, moral reasoning.
What are the three questions that must be answered in determining justiciablility?
Who - proper party, interest, harmed.

What - what subject matters are appropriate for Supreme Court - no advisory questions limited to cases and controversies.

When - ripe (not too soon), moot (not too late)
What is the case or controversy requirement?
Article III, Section 2 states that federal courts cannot give opinions on abstract or hypothetical questions; no advisory opinions; need focused, specific conflicts to explore every aspect of the situation, constitutional issues only decided if strictly necessary, need party before court who has been harmed or is imminently facing danger.
When is a case moot?
A case is moot if it raised a justiciable controversy at the time it was filed, but events occuring after the filing have deprived the litigant of an ongoing stake in the controversy.
Name the 6 modern factors that must be present in order to make an issue a non-justiciable political question. (Baker v. Carr)
1. Commitment to another branch
2. Lack of standards
3. Unsuitable policy determination - impossible to decide issue without an initial policy determination clearly for non-judicial discretion
4. Lack of respect for other branches.
5. Political decision already made
6. Multiple pronoucements - potential for embarassment from multifarious pronouncements by various depts. for one question.
What is representation reinforcement?
Concept that a state should not be able to impose taxes on federal taxpayers beause residents of other states are not represented in the state's political process.

Federal government can fairly impose taxes on States becasue the ppl of all states are represented in Congress.
If the Senate had convicted President Clinton, should there have been an opportunity for judicial review? What if he argued that his activites weren't high crimes and misdemeanors.
Probably could not have appealed unless he could find valid Consitutional grounds; definition of high crimes and misdemanors ambiguous, also not specified who defines those terms.
Why is there review of state court judgments?
Supremacy clause allows for review of federal questions. We want uniformity of rules, all states should interpret federal questions the same way.
What is the importance of Martin v. Hunter's Lesee?
Supplied argument of legal uniformity for review of state court decisions - rejected sovereignty argument put forth by state, treaties and Constitution could not be interpreted differently by different states.
What is the result of Cohens v. Virginia?
Established ability of Court to review state criminal cases for Constitutional issues.

Particulary notable for Marshall's disdain of state court judges - that they are not independent, subject to majority pressures.
What is Justice Holmes famous quote on review of state court judgments?
I do not think the US would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states."
What would be so bad about having pluralism in Constitutional interpretation (in the case of states)?
There would be jurisdiction shopping; inability to deal with interstate problems, treaties, national defense.
What is Jurisdiction Stripping?
When congress curtails the jurisdiction of courts by legislation. Example Ex parte McArdle - Court had no jursidiction because Congress had changed a statute they made; since Congress made the law, they could change it.
Could Congress pass a law preventing federal courts, the Supreme Court, from hearing any state laws concerning mandatory prayer in public schools?
Court would have right to hear based on Const. text - no establishment of religion
From policy perspective - uniformity of state laws with regard to Const. issues
From Case law, McArdle is not a precedent, that dealt with statutory issue.
What is Article X?
Reiterates that undelegated powers were "reserved to the States respectively, or to the people."
What are the comparative advantages of state and federal governments?
States: efficiency, laboratories of experiment, republicanism, also better able to handle local problems, more informed, limits centralization of power.

Federal: provide public goods that transcend boundaries, cross-state regulation, prevention of negative externalities (pollution), prevention of races to bottom, challenge tryannies of local majorities.
What is the significance of McCulloch v. Maryland?
Marshall read national powers of Congress expansively - implied powers; all means necessary legitimate, allowed for definition of necessary as convenient or useful.

Marshall found right to create bank was Constitutional under necessary and proper clause, but right to tax it was not because it would give the state the power to destroy. RESULT: Congress has basically no limitations at all.
What is the doctrine of implied powers?
Authorization to act does not need to be explicit, the federal government, especially Congress, may validly exercise power that is ancillary to one of the explicit powers, as long as it does not conflict with the Constitution.
What were states trying to do in US Term Limits?
They tried to impose additional restrictions on candidates for Congress that are not contained in the Constitution.
What is the majority opinion in US Term Limits?
Structural argument - states will have no power over composition or operation of Fed. Govt.

Historical - can't have reserved powers of what didn't exist before the Constitution.
What is the dissenting opinion in US Term Limits?
Textual argument - states can exercise all powers, including power over fed govt. if Const. doesn't withhold, Const. is silent on term limits, doesn't explicitly prevent States from establishing eligibility requirements, silence implies the power.
Who wrote the Kentucky and Virginia resolutions and what was their perspective regarding sovereignty?
Authored by Jefferson and Madison, the federal govt. was but a compact among the states and that the states had a right to resist unconstitutional exercises of federal power.
Was the concurrence in Bush v. Gore consistent with the dissent in Term Limits?
Dissent in Term Limits essentially said that because the Const. was silent on the subject, the State had the right to create its own term limits: The concurrence in Bush v. Gore read into the Const. language that wasn't there because of the importance of the decision - the opinions are inconsistent.
What was the significance of the X Amendment language vs. Articles of Confederation language for debate for national power?
Constitution increased power of the national govt. as compared to the Articles - most importantly to levy taxes and regulate interstate and foreign commerce; the X Amendment was designed to allay fears of a powerful, excessively centralized national government.
What is the Commerce Clause?
Article I, Section 8, Clause 3 - To regulate Commerce with foreign nations, and among the several states, and with the Indian tribes; most important power of Congress!
Tell the story of the Commerce Clause as a history of a pendulum-like jurisprudential movement.
Pre-1937 - Court tries to limit national power: court used judicial review & authority to police balance between Fed/State - struck down provisions of New Deal.

Post-1937-1995 - almost unlimited national power - rational basis

1995-present - Lopez, Morrison - Court begins to swing back.
What was the result of Gibbons v. Ogden (NJ/NY Ferry case)
Marshall created a strong foundation for national power - broad view of Commerce - defined commerce as traffic & intercourse, not only buying and selling.

Congress could regulate matters within a state as long as it had some commercial connection with another state; plenary power.
Describe the following Pre-1937 Commerce clause cases:
1) Sugar Trust Case
2) Shreveport Rate Case
3) Champion v. Ames
Sugar Trust Case - distinguished between manufacture and commerce - Congress did not have power to regulate manufacturing.

Shreveport Rate Case - if intrastate activities affect interstate commerce - Congress has ability to regulate.

Champion v. Ames - the Lottery case - lottery tickets are subjects of traffic, therefore subjects of commerce.
What is the significance of Holmes dissent in Hammer v. Dagenhart (children weekly hour limit case)?
Holmes said that Congress has a right to regulate interstaet commerce, this issue is interstate commerce because it affects national public policy. The fact that it has a collateral effect upon local activities otherwise left to state control does not render the statute unconstitutional. This is significant because it becomes the majority view of the Court in 1937 until today.
Who were the four horsemen?
4 extremely activist judges that tried to limit national power, preserve state power.
What is the court packing plan by FDR?
FDR proposed to add 6 judges to counteract judicial activism and push thru New Deal legislation - voted down.
Why is the revolution of 1937 so important?
Court showed greater willingness to defer to legislative decisions; the court substantially loosened the nexus required between the intrastate activity being regulated and interstate commerce. This continued until Lopez when the court found congress went beyond its Commerce Clause powers.
What test was expanded in NLRB v. Jones & Laughlin Steel Corp?
The substantial economic effect test which gave Congress a broad base of power.
What case post 1937 overruled Hammer v. Dagenhart (child labor)?
US v. Darby - law created min. wage & max hours for employees engaged in production of goods for interstate commerce upheld

Congress may choose means reasonably adapted to the attainment of the prmitted end, even though it involves control of intrastate activity.
What theory was introduced in Wickard v. Filburn?
The Aggregation Theory - P's own effect on the market may be trivial, but taken together with that of many others similary situated it is far from trivial.

Result = National power that is unlimited.
What is significant about Heart of Atlanta Motel?
Court sustained a law against segregation, Congress was legislating against a moral wrong, which was no less valid, found that racial discrimination had a disruptive effect on commercial intercourse. Was extremely deferential to Congress.
What is the Rational basis standard (Commerce Clause)?
Where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.
Can the Court create reasons for Cnogressional laws ex post?
Yes, court can suppply reasoning in retrospect.
What is role of factual findings?
Almost irrelevant - court defers to legislative branch - which need not make any findings.
Do the cases after 1937 provide any principled limit on Congressional power?
No limit on national power.
What case cased a reemergence of judicial scrutiny? Result?
US v. Lopez (gun-free school zone law)

Established that there still were some limits on Congress' Commerce Clause power - first time in 60 years Court invalidated federal statute on grounds it was beyond Commerce power. Distinguished between economic & noneconomic activity; must be signficant effect on commerce; incidental effect not enough.

Return of an activist Court policing the Federal/State divide.
What was the definition of the scope of commerce power from US v. Lopez?
1) Congress may regulate channels of interstate commerce (roads, ports, air traffic routes)

2) Congress may regulate instrumentalities of interstate commerce, even though the threat may come only from intrastate activities.

3) Congress may regulate those activites having a substantial relation to interstate Commerce - must substantially affect interstate commerce.
Does US v. Lopez provide a proper reading of Gibbons?
Yes, allows for some limit on Commerce clause power.
Is US v. Lopez consistent with Wickard and the Civil Rights Act cases?
No - it allows for judicial activism and a review of the facts by the courts: also returns to an era of doctrinal differentiation - economic vs. non-economic.
How does US. v. Morrison (Violence Against Women Act case) clarify Lopez?
Suggest that Lopez will be major obstacle for the Congress whenever they rely on the Commerce Clause to regulate non-economic activity.

Plus the regulation & punishment of intrastate violence has always been a province of the states.
Why is the post Lopez 1995 era called the Anti-Federalist Revival?
Now the court won't give mush deference to the fact that the Congress believed that the activity has the requisite "substantial effect" on interstate commerce. The Court will basically decide the issue itself from scratch. It will no longer be enough that Congress had a rational basis for believing the requisite effect existed, the effect must in fact exist to the Court's satisfaction. If what's being regulated is an activity the regulation of has been traditionally states domain (education, family law, general crim law) the Court is less likely to find Congress is acting within Commerce Power.
What is the 10th Amendment about?
The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Is the Tenth Amendment a judicially enforceable "external" limit on Congress' power?
There is no clear answer as to whether its enforceable.

Two views
1) 10th amendment doesn't provide a separate limit on Congress, but is only a reminder that Congress can't legislate without Constitutional authority. Federal laws violate the internal limit of the enumerated powers of Article I, not the 10th Amendment.

2) 10th Amendment protects state sovereignty from federal overreaching thru proclaiming that a reserved area of lawmaking is exclusive to the States, it is a key protection of federalism.
Tell the story of the 10th Amendment as a history of a pendulum-like jurisprudential movement (similar to the story of the Commerce Clause)
1) Court takes active role (Nat. League of Cities)
2) Judicial Restraint (Garcia)
3) Limits on Congressional Power (NY v. US, Printz)
What was the majority opinion in the 10th amendment case of National League of Cities?
Federal law was struck down because it violated 10th amendment despite being consistent with commerce clause. Rehnquist felt the court should take an active role in policing the fed/state divide, should protect "traditional state functions"
What was the result of Garcia? (10th amendment case)
Reversed National League, removed approach of 10th Amendment as check on federal power, felt that traditional state functions is unworkable standard, too formal.
What was NY v. US and Printz v. US signficance?
NY:Garcia is as Lopez:Darby

Both cases strengthen Court's role in policing the Fed/State divide.

NY - Congress can't commandeer state legislative process
Printz - Congress may not compel state exec branch to preform functions even if easy to perform and temporary.
What are the alternatives to commandeering a state exec branch?
Look for situations where Congress would have power thru necessary and proper language of the Commerce Clause

Also Congress may condition receipt of Federal funds by voluntary cooperation with federal program - can't be coercive though.
After Printz, may federal govt. require state officials to report to Justice dept. statistics on missing children the state has already collected?
Probably not, although could enact a program that would require reporting as a condition of acquiring subsequent federal funds.
What is the key modern case for 11th Amendment cases?
Seminole Tribe v. Florida - Bars suits for monetary relief in Fed. Courts, Fed administrative agencies against state gov, by citizens of other states, foreign countries, own citizens. Also prohibits suits for monetary relief against state govt. for federal questions in state courts.

State can't be sued by citizen on federal cause of action in state or federal court.

Federal govt. can sue state.
What is the War Power?
Congress has the power to declare war and to tax and spend for national defense: The President is the Commander in Chief.
What is the courts view on limits of Congressional regulatory power over domestic affairs in wartime and when effects of war still felt? What case?
Woods v. Cloyd Miller Co.

War power includes power to remedy evils which have arisen from its rise and progress and continues for duration of emergency; war power does not necessarily end with cessatio of hostilities; this is an extension of the necessary and proper clause.
What is the Treaty Power? Name the important case.
Congress can enact laws to enfore treaties, beyond enumerated powers, ignore the 10th amendment since this is a national problem, becomes law of the land by supremacy clause.

Missouri v. Holland (migratory bird treaty case)
Is there a limit on the Treaty Power?
Yes, in Reid v. Covert the court stated that Treaties can't violate explicit prohibitions contained in the Constitution - but the structural aspect of 10th Amendment is no barrier.
In what area does the President have substantially greater authority?
Foreign affairs than with respect to domestic affairs.
What are the two approaches to the Separation of Powers doctrine?
Formalist - rigid approach, rigid line between branches, can't be crossed.

Functionalist - branches not hermetically sealed from one another
What are the sources of the Separation of Powers Doctrine?
Not explicit in the Constitution, implied.

Each branch has enumerated powers.

Judiciary acts as check on Congress and the President.
Why might we value inefficiency of the national government?
Inefficient government incentivized by structure which secures individual liberty.
What was Jackson's three categories of executive action described in Youngstown Sheet (steel seizure case)?
1) Pres acts under Congressional Statute - maximum authority

2) Zone of Twilight - concurrent authority; distribution of power unclear

3) Pres acts specifically against will of Congress - minimal authority - unless action is specifically allowed by Const.

Steel seizure fell under the third category, therefore action by Presiden was deemed unconstitutional.
What is the significance of the lack of enumeration of executive power in Article II?
Because of lack of enumeration, much of President's power in domestic and foreign affairs is implied, President cannot make laws though.
What is Chief Justice Rehnquist's view of constitutional law during wartime?
Middle ground - laws will not be silent in time of war, but they will speak with a somewhat different voice.

1) Constitution stands no matter what
2) All bets are off during wartime emergencies
What is the doctrinal foundation of the adminstrative state (sometimes viewed as another branch of government)?
Delegation of law making power from Congress to other branches - EPA, INS, FDA. Created by Congress, controlled by Executive.

Advantages: efficient, allows Congress to pass buck for unpopular decisions

Problems: no accountability.
What are two principle ways to maintain control over adminstrative acts?
1) legislative veto
2) control over administrative jobs - appt & removal
Categorize the battle between formalism and functionalism in INS v. Chadha?
Majority was Formalist - powers of national government acn be categorically distinguished line drawing, avoids agrandisement of one branch vis a vis another, wants an active court to intervene.

Dissent - Functionalist - pragmatic, powers aren't easy to distinguish, don't want activist court that intervenes.
List the reasons supporting executive privilege.
1) promote free exchange of information; frank disclosure from people he talks to

2) if no privlege, could tie up President in litigation for years - protects Pres. from judicial encroachment.
List the reasons against executive privilege.
1) we want to know about bad stuff.

2) dont' want president to be able to break the law

3) court has power - Marshall in Marbury - encroachment on judicial authority.
Where is executive privilege found in the Constitution?
Nowhere - implied; inherent power claimed by executive, not from strict textual reading; structural implication.
What the result of Clinton v. Jones?
Court rejected claim that a President should have temporary immunity while he is in office from claims that arose before he took office. Also no policy to allow immunity from claims against unofficial acts.

(In view of distractions during Clinton's presidency - may want to revisit this decision)
Tell me about the important positions of Justice Marshall.
Marbury - it is emphatically the province and duty of the judicial department to say what the law is.

MCCulloch v. Maryland - depended on the necessary and property clause to create that national bank, so long as the means is rationally related to a constitutional end, and not specifically prohibited

Gibbons v. Ogden - conflict between a state and law of Congress, the supremacy clause is controlling
What is Holmes view of the commerce clause?
In the dissent in Hammer v. Dagenhart - so long as the congressional regulation falls within power specifically given to Congress (here the power to regulate interstate commerce) the fact that it has a collateral effect upon local activities otherwise left to state control does not render the statute unconstitutional. Implicitly rejected the 10th amendment as a source of limitation on federal authority.
What is Frankfurter claim to fame?
His approach of prudence, balancing, his view of the role of the Court in political questions.
What are some of Scalia's notable stances?
federalism, separation of powers, formalism, countermajoritian difficulty.
What are the reconstruction Amendments?
XIII, XIV, XV amendments after the Civil War, all enacted for the purpose of barring discriminatino by states against individuals, especially blacks
What does the 14th amendment state?
No state shall make or enforce any law which shall abridge privileges or immunities of citizens of the US; Due process clause; Equal protection clause.
What is the incorporation controversy with the 14th amendment?
It is unclear what effect the 14th amendment had on State's obligation to honor the Bill of Rights: 2 views
1) Selective incorporation - fundamental rights view - liberty as used in the 14th amendment is to be interpreted by judges without regard to the Bill of Rights. Only those aspects of liberty that are in a sense "fundamental" are protected by the 14th amendment. (1,4,5,6,8 amend)

Total incorporation - all the guarantees in the Bill of Rights are applicable to the states via the due process clause: activist judiciary protects individuals against the state.
How did the Supreme Court rule in Slaughter-House first case under the 14th amendment?
Narrowly, not a Bill of Rights issue, no rights against the states, monopoly of butchers did not violate due process.
What is natural law as introduced by Chase in Calder v. Bull?
extra-constitutional law, from religion, social compact, history, tradition, these laws cannot be violated by legislative acts. Liberty may include some independent set of values (national values) that can be applied against states.
What is the social compact theory?
Locke - society functions by an agreed upon set of rules, customs, traditions, passed down from generation to generation, these formed the social compact which later evolved into the written constitution.
Define "liberty"
14th amendment states "...nor shall any state deprive any person of life, liberty, or property without due process of law..." May include rights to contract - economic, privacy - abortion, contraception, sodomy.
What was the judicial climate before the 14th amendment and Slaughter-House?
Judicial restraint regarding state infringment of individual rights.
Describe substantive due process.
A protectino of fundamental economic rights - limitation upon the substantive power of State legislatures to regulate economic and non-economic life.
What was Allgeyer v. Louisiana about?
Court used substantive due process to invalidate a state statute, prevented D from exercising his freedom of contract. The guarantee of liberty in the 14th amendment protected not only physical liberty but also such intangibles as the right to live and work where on wishes and to enter any contracts necessary to accomplish these goals.
What happened in Lochner v. NY?
Court struck down as an abridgement of the "liberty to contract", violation of due process - a law which limited hours which a bakery employee could work.
When and what was the Lochner era?
1900-1937 - widespread invalidation of economic legislation on substantive due process grounds - judicial activism: the court did allow some laws for classes that needed special protection (women). In all court struck down more than 200 state laws.
Summarize Lochnerizing.
1) Due process clause protects freedom of contract - independent of explicit text of constitution.

2) State may limit liberty of due process only for valid police cause - health & safety.

3) Means(laws) used to achieve compelling need must be essential to achieving its purpose. Court has a role in scrutinzing whether purpose is valid and whether law is necessary. Strict Scrutiny.
What was wrong with Lochner?
1)Stands for judicial activism that makes up rights out of thin air.
2) Court places burden of justification on state
3) Meddling
4) Counter-majoritarian
5) Legislature in better position to know facts
6) Nowhere does it say freedom of contract in Constitution
7) Liberty only defined as freedom from bodily constraint.
8) Fundamental role of state to equalize social relationships gone.
What case marked the decline of Lochner era?
Nebbia v. New York - at time of election of FDR and New Deal - large scale governement intervention in economic affairs was clearly at odds with Lochner freedom of contract.
What happened in the post lochner case of West Coast Hotel v. Parrish?
court upheld a state minimum wage law for women - expressly overturned Adkins. Deferential view towards state legislature in economic rights, death knell of economic substantive due process.
What case marks the end of Lochner?
Carolene products - rational basis approach led to 2 tier standard of review.

1) Rational basis - deferential standard for economic issues - minimal scrutiny.
2) Strict scrutiny - for fundamental rights, state must demostrate law is necessary to achieve compelling interest - activist.
What happened post 1937 to review of economic regulation? Williamson v. Lee Optical?
Court deferred to state; deferential role gone too far, court was unwilling to overturn any economic legislation.

The Modern court has withdrawn almost completely from reviewing state legislative economic regulation for substantive due process violations.
What about non-economic substantive due process cases post Lochner?
Court willing to strike down legislatino which it finds violates important non-economic interests: sex, marriage, child-bearing, child-rearing, right to privacy, personal autonomy
How is contract like or unlike sexual privacy?
Contract is public whereas sex is private.
What was the significance of Griswold v. Conn.?
1st case used non-economic substantive due process to protect a fundamental right - invoked strict scrutiny; reproductive rights are fundamental. Majority opinion uses Pneumbras of privacy instead of Due process clause.
What are Penumbras?
Douglas rahter than using substantive due process clause, found that several of the Bill of Rights guarantees protect the privacy interest & creates a penumbra or zone of privacy.
What was the significance of Lawrence v. Texas?
Court found that petitioners are free as adults to conduct the execise of their liberty under the Due Process Clause of the 14th Amendment. overturned Bowers which denied homosexual sodomy as a fundamental right. First use of comparative law (European Law)
Describe rationality review in terms of Equal Protection Clause cases?
Least probing, doesn't apply to suspect of quasi-suspect (gender) calssifications, mostly economic issues. Court asks whether it is conceivable that the classification bears a rational relationshiop to an end of the government which is not prohibited (legitimate) by the Constitution.
Describe Intermediate Scrutiny in terms of Equal Protection Clause cases?
Gender and illegitimacy, alienage. The means chosen by legislature (classification) must serve important governmental objectives and must be substantially related to the achievement of those objectives.
Describe Strict Scrutiny in terms of Equal Protection Clause cases?
Any statute based on suspect classification (race) or impairs fundamental right (voting). The classification is upheld only if it is necessary to promote a compelling government interest. The objective must be exteremely important & fit between means and end must be tight.
Should rationality review be stricter for social and economic regulation?
Yes, existing standard is too permissive, little more scrutiny would be good, Constitution should influence legislature to protect public, not private interests. But in reality, no stricter standards for economic or social issues.
What is the original purpose of the 14th amendment and what is is used for now?
Originally intended to remedy the legacy of slavery, but from the beginning the Court used the Equal Protection Clause to impose a general restraint on the use of classifications.
What the result of a facially discriminatory classification?
Automatically struck down, example Strauder v. West Virginia trying to make juries all white.
Describe the failure of strict scrutiny in Korematsu v. US
First application of strict scrutiny and only case where not fatal; a stain on American courts, Court failed to resist majoritarian pull of the moment to protect liberty of individuals.
What was facially discriminatory but symmetrical ?
Separate but equal laws. Classifies by race but superficially does not explicitly disadvantage minorities.
Why did the court choose to uphold Jim Crow laws in Plessy v. Ferguson?
Stated that the 14th Amendment only applied to political equality no social, the law is symmetrical (separate but equal), in context of a facially symmetric law, perception of stigmatizing blacks is only because they choose to put that construction on it.
What was Harlan's dissent in Plessy?
1) Concern about perpetuation of a caste - racial dominance; the 14th Amendment finds social subordination repugnant.

2) Constitution is color-blind, racial classification per se is invalid.
What case marked the end of Jim Crow?
Brown v. Board of Education I, court ruled that public schools segregated on basis of race violated the 14th Amendment Equal Protection Clause.
What about Plessy does Brown overturn?
1) Separation is inherently unequal - something beyond tangible equality-antidiscrimination view.

2) Education context - primary locus for inculcation of values, American citizenship - anti-subordination view.

3) Psychological - segregation does lead to harmful badge of inferiority - may effect their "hearts and minds" in a way that can never be undone.
Can a law be facially neutral, but still have disparate impact?
Yes, still can be unconstitutional under equal protection if 1) discriminatory impact on a particular racial group AND
2) must have racially discriminatory purpose (motive)
What is benign racial classification?
This can be found in affirmative action in education.
Name some affirmative action education cases and their reasoning.
Bakke, Grutter, Gratz - achievement of educational diversity in higher education is a compelling interest that may justify states use of benign race based classification: remedial reasons are not compelling
What techniques are allowed in affirmative action?
No quotas or set asides
May only use it as one factor among many - every individual must be reviewed individually, cannot assign point value to race classification.
What is Thomas' surprising dissent in Grutter?
Benign classifications are stigmatizing, disagrees that diversity is a compelling interest, many other ways to achieve racial balance like lowering standarized testing requirements.
What kind of scrutiny does sex discrimination garner?
Intermediate scrutiny in Craig v. Boren

Exceeding pursuasive justification - closer to strict than rationality in VMI case.
How does sex differ from race?
1) biologic - women can give birth
2) social and legal disadvantage different
3) women aren't a minority
Describe the religion clauses (establishment and free exercise)
1) Establishment clause - no law respecting an establishment of religion

2) Free exercise - or prohibiting the free exercise thereof
What are the 2 fundamental principles regarding religion animating the 1st amendment?
Voluntarism - advancement of a church would come only from the voluntary support of its followers and not from political support of the state

Separatism - religion & government function best if each remains independent of other
What are religious exemptions?
Neutral laws of general applicability, not intended to burden free exercise, require exemptions.
What case was the high water mark for constitutionally required accomodation for religious practice?
Sherbert v. Warner - 7th Day Adventist would work on Saturday case. Court used strict scrutiny, saw an unconstitutionally compelled choice between economic viability and religion. No compelling interest for state.
What is the Sherbert rule?
1) is there a substantial burden on religion?

2) was there a compelling state interest with narrowly tailored means?
Criticisms of Sherbert rule?
1) Original understanding - contrary to intent of framers
2) Establishment - in demandnig comelled exemptions, extreme favoritism to religion.
3) Consistency - created doctrine courts could not apply well
What case did free exercise clause standard of review change?
Peyote case, Employment Division v. Smith - mere rationality for generally applicable laws that don't single out specific religion, even it if burdens religious practice.
What is the lemon test for the Establishment Clause?
Must satisfy all three:
1) Purpose - it must have a secular legislative purpose (Ten commandments have no secular purpose)

2) Effect - its primary effect may neither enhance or inhibit religion

2) Entanglement - it must not foster exsessive goct. entanglement with religion.

Test is losing importance!!
What is the coercion test?
Government may not force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
What is the lemon test for the Establishment Clause?
Must satisfy all three:
1) Purpose - it must have a secular legislative purpose (Ten commandments have no secular purpose)

2) Effect - its primary effect may neither enhance or inhibit religion

2) Entanglement - it must not foster exsessive goct. entanglement with religion.

Test is losing importance!!
What is the coercion test?
Government may not force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
Waht is the test for religious symbolism outside the school context?
Test - would a reasonable observer seeing the display conclude that the government was endorsing religion in general or endorsing a particular religion? If yes - violation. Remember context of the display, are there other religious displays nearby.