Constitutional Law

textual interpretation

focus on the words themselves

history interpretation

examining the framers intent and societal norms

precendent interpretation

relying on past court decisions

policy interpretation

weighing the consequences of different interpretations

Magna Carta

English doc saying we need law + even the king must respect it

Symbolic success representing people’s freedom

Philadelphia Convention

Produced the US Constitution

the official purpose of the convention was merely to come up with suggested revisions to the Articles of Confederation, but the delegates to the convention decided to go beyond that and draft a constitution that would replace the Articles of Confederation

Virginia Plan

pro central government - highly centralized

• 3 branches check each other

New Jersey Plan

pro state sovereignty

• revise articles of confederation to enable Congress to raise revenues and regulate commerce

Marbury v Madison

established Judicial Review

• H: SC doesnt have jurisdiction over claims because cannot have original jurisdiction, however SC still has the right to declare acts of Congress/ Exec unconstiutional

Judicial Supremacy

SC has final say on meaning of the constitution - prevailing today

Departmentalism

each branch has equal say on meaning of the constitution

“A political court” Richard Posner

Explained that the Supreme Court has tremendous discretion to resolve important questions that do not have any objectively right or wrong answer.

• “there are certain to be equally articulate, “reasonable” people who disagree and can offer plausible reasons for their disagreement, and there will be no common metric that will enable a disinterested observer to decide who is right”

Police Power

allows state and local governments to adopt any law not prohibited by the constitution

• not available to federal government

• Federalist No 5 “the powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the state governments are numerous and indefinite”

Fletcher v. Peck

Government cannot impair the obligations of a contract according to Contracts Clause Art 1 §10

• TAKEAWAY: court exercises its power of judicial review to strike down a state law that violates the contracts clause

McCulloch v. Maryland

RULE: Congress can make all laws Necessary and Proper for execution of their enumerated powers

HOLDING: Regulating commerce is enumerated power, opening bank is “necessary” (interpreted as convenient) for execution of this power, therefore it cannot be taxed by the state

“We must never forget that it is a constitution we are expounding”

Marshall in McCulloch v. Maryland

• Marshall argued that the Constitution is not a highly detailed legal code and therefore we cannot expect it to specifically list each and every incidental or implied power that properly accompanies the national government’s enumerated power

Andrew Jackson response to McCulloch

“John Marshall made his decision; not let him enforce it”

• thought necessary was construed too broadly

Gibbons v. Ogden

Federal law > state law regarding interstate commerce because this is an enumerated power granted to Congress through constitution

• a.     Marshall argued that the word “commerce” (in Article I, § 8, clause 3) should be read broadly to include navigation and all aspects of commercial intercourse.

Originalism

original intent of the framers

1.     Different views of originalism:

• Authors intent: meaning attached to drafter’s intent

• Voter’s intent: meaning that voters intent was at the time

• Original public meaning: general meaning at the time rather than meaning to any particular person - Prevailing approach in recent years

Scalia, Thomas, Amy Coney Barrett, Kavanaugh, Gorsuch

Living Constitutionalism

document that evolves/adapts over time in response to new needs and concerns

• RBG, Sotomayor, Ketanji Brown Jackson

Barron v. Baltimore

BOR, including 5^th Amendment, is only a limitation of power to the US gov and is not applicable to state governments - not uncon for state to ruin wharf

• BOR was for antifederalists, so interpret through their eyes to find purpose

Dred Scott v. Sandford

Slaves and their descendants, even if free, were not intended to be included as citizens under the constitution and therefore don’t get its freedoms

Struck down the Missouri Compromise (slavery prohibited above MO southern border (except in MO))

1.     Taney hoped this decision would resolve divided country because there was an answer – did the opposite and caused outrage

2.     If constitution is unjust, can amend it but courts don’t have the power to change its meaning

• Lincoln didn’t originally want to end slavery; just wanted to stop it where it is – no expansion

Ex Parte Merryman

Only Congress can suspend habeas corpus only in extreme situations of public safety

• Congress eventually meets again and decides to suspend habeas corpus and endorses Lincoln’s actions

The Prize Cases

president may use force without official congressional declaration of war because he has obligation to protect county in wartime

• The theory vs the reality of the constitution: reality is the war has already began, even without Congress officially saying so

Emancipation Proclaimation

Ends slavery in rebellion states, states that never seceded were permitted to retain slavery;

Reasons of importance:

1.     Black men in army

2.     Symbolic for ending slavery

Jurisdiction Stripping

Congress can eliminate court’s jurisdiction if they don’t like the court’s decisions or possible future decisions

• Only appellate, not original jurisdiction

Jurisdiction Stripping - Traditional View

Congress can change appellate jurisdiction as long as it doesn’t violate the constitution

Jurisdiction Stripping - Opposing View

Congress cannot use its power to change jurisdiction in a way that would:

1.     Undercut too much the enforcement of any constitutional right

2.     Interfere too much with Judicial Branch essential functions in Art III § 2

• Separation of powers violation

Ex Parte McCardle

The constitution permits Congress to make exceptions and regulations to appellate jurisdiction of the SC - JURISDICTION STRIPPING

• HOLDING: court no longer has jurisdiction over appellate review for writs of habeas corpus bc of Congress repealing an act, therefore they cannot proceed with McCardle’s case for “libelous” articles

Texas v. White

Constitution meant for “state” to mean political community within a unified government and this unity is complete, final, perpetual, indissoluble

13th Amendment

abolished slavery and involuntary servitude

• § 2: Congress has the power to enforce it

14th Amendment § 1: key clauses:

• Privileges and Immunities (Rights of citizenship OVERRULES Dred Scott)

• Due Process

• Equal Protection

Equal Protection

= 1. Intentional 2. State Action

• all people must be treated equally under the law

Vick Wo v Hopkins

even if a law isn’t discriminatory on its face, discriminatory administration of the law is unconstitutional – denial of equal protection

Plessy v. Ferguson

separate but equal does not violate equal protection under the 14^th amendment because it didn’t intend to enforce social equality

14th Amendment § 5

Congress enforces other parts of 14^th with legislation

15th Amendment

African American men get right to vote

Article IV State Citizenship

no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US

Slaughter House Cases

RULE: 14^th protects only rights guaranteed by the US and not those guaranteed by individual states

• HOLDING: 14^th not violated – law didn’t infringe on uniquely national rights

1.     Due process: butchers property/liberty interest was not infringed

2.     Equal Protection: applies only to race

• SC’s first encounter with the Civil War amendments

• Determined these amendments are about race, not altering fed/state balance

the Civil Rights Cases

Congress does not have the power to prohibit racial segregation of businesses such as theaters, hotels, restaurants - 14th does not prohibit private discrimination + only applies to government

• 13th doesnt apply bc only addresses slavery - not segregation/discrimination

Trump v. Anderson

States can disqualify using § 3 for state offices, but Congress has power for fed offices

• HOLDING: Congress should pass legislation under §5 to establish a process for determining who falls under §3 (ruling out the court system as a way to enforce)

The Lochner Era

• Pure capitalism, federal government cannot impede

• 1932 FDR became president, New Deal was very aggressive legislative approach to GD

• SC was more likely to limit Congress

Lochner v. NY

States police power cannot infringe on right to contract freely if not for reasonable conditions that further the health, safety, and general welfare of their citizens

• HOLDING: state can’t regulate working hours for bakers because this violates 14^th Amendment right to contract freely under Due Process Clause – baking is not a profession that needs government protection

Hammer v. Dagenhart

Commerce Clause cannot be used to regulate child labor because the manufacture of goods doesn’t have anything to do with its entry into commerce

• TAKEAWAY: narrow interpretation of Congress’s power to regulate under the Commerce Clause

Shecter Poultry (Black Monday bc SC shutting down New Deal)

Congress can’t give president unlimited power with his act to approve poultry competition codes, and D had no interstate commerce so cant be federally regulated

• TAKEAWAY: SC continues to strike down regulations of matters like industrial production and labor conditions proposed by the New Deal

Court Packing

Roosevelt proposal to appoint new justices if any members of the Court chose to continue serving past 70 ½ - would’ve enabled him to pick 6 more

• Roosevelt’s way to overcome judicial resistance to New Deal programs

West Coast Hotel v Parrish

“Switch in time that saved nine”; Seen as reaction to court packing – looks like Roberts caved to pressure even though he was going to vote this way anyways

HOLDING: Overruling precedent in order to hold that a state’s minimum wage law for female workers did not violate Due Process rights – setting minimum wage does not go against right to freely contract

• Got rid of right to freely contract as we knew it

NLRB v Jones & Laughlin Steel

Roosevelt’s NLRB to protect union formation affects J&L because its activities affect interstate commerce – subject to federal regulation

• TAKEAWAY: upholding Roosevelt’s New Deal programs a valid exercise of Congress’s power under the Commerce Clause

US v Darby Lumber

Fair Labor Standards Act (FLSA) upheld by SC – established federal minimum wage

3.     TAKEAWAY: significantly expanded federal power and MINIMIZED 10^th

• “the Amendment states but a truism” (not a limitation on the authority of national gov to exercise its powers)

Wickard v. Filburn

if local activity exerts a substantial effect of interstate commerce, Congress can regulate under Commerce Clause

• TAKEAWAY: illustrates the drastic change in the Court’s approach to economic regulations – STRENGTHENED Commerce Power the furthest it will go

fundamental rights approach

Rights that were fundamental to the principles of liberty and justice only

• Cardozo

Palko v Conneticut

FUNDAMENTAL RIGHTS APPROACH

• Double jeopardy is not a hardship so acute that policy won’t endure it, and is also doesn’t violate the fundamental principles of justice, therefore not incorporated or forced on states

Total Incorporation Approach

Apply all BOR protections to states

• Hugo Black: thought objectives of the 14^th was to incorp BOR to states. Historically, the author of the amendment even said so himself.

  • Harlan (grandson) leading critic of Blacks opinions

Selective “jot for jot” incorporation approach

SC applies certain rights from the BOR on a case by case basis

• EXACTLY the way they are in the BOR

• John Marshall Harlan (grandson)

Chicago Burlington & Quincy RR v Chicago

14^th’s Due Process requires governments to pay just compensation if they take private property – like the Takings Clause in 5^th

Twining v New Jersey

Due Process doesn’t include exemption from self-incrimination because this is not an ESSENTIAL ELEMENT of Due Process, therefore 14^th doesn’t give power of 5^th to states

2 part test for rational vs strict scrutiny

• Does government action fit goal it was meant to accomplish?

• Magnitude of government’s purpose – is it a compelling goal?

Rational Basis Scrutiny

challenger must show government’s action could not rationally serve any conceivable, legitimate purpose

• age

• hippies

• mental and physical ability

• undocumented illegal children

• applies to everything other than specified in intermediate and strict

Carolene Products

RATIONAL

defferential – every benefit of the doubt to legislature because voters are wise and can protect themselves against bad legislation with voting

• Law upheld as long as there is a rational, conceivable basis for it

Railway Express Agency v. NY

RATIONAL

A law to eliminate distractions that is underinclusive (no times square) or overinclusive (encompasses things that aren’t distracting) doesn’t violate Equal Protection because passes rational basis review. Leg could’ve decided it was necessary to deal with vehicle ads first

Williamson v. Lee Optical

RATIONAL

If a regulation is a conceivable justification to correct a health and safety problem – constitutional

Intermediate Scrutiny

government must show that its action was substantially related to an important interest

• gender

• parental marriage status

Strict scrutiny

government must show its action was narrowly tailored to a compelling government interest

• race

• national origin

• citizenship status

Carolene Products Footnote

Situations in which much tougher judicial scrutiny would apply

• Violates specific provision of the BOR

• Relating to political process like voting etc

• Statutes directed at minorities – this minority group may not have a lot of political/voting power

Korematsu v US

STRICT SCRUTINY

Government restrictions targeting a specific racial group [in footnote] are immediately suspect and subject to the most rigid/strict scrutiny – not to say that are unconstitutional however bc this wasn’t

• 2018 case Trump v Hawaii on Muslim travel ban parallelled Korematsu – court upheld President’s travel ban – but technically overturned Korematsu?

Brown v Board of Education

separate but equal is inherently unequal and violates equal protection under 14^th

• Overturned Plessy v Furguson

  BACKGROUND:

  1.     Thurgood Marshall was NAACP attorney here

  2.     Controversial approach of citing AA psychologist who gauged children’s feelings on race – not conventional legal analysis, its science

  3.     4 justices were ready to overturn, 4 were going to deny, Felix Frankfurter in the middle

  4.     Stalled the case, successful because CJ died during this time and Warren was appointed

  5.     Warren convinced other justices and Reed, saying it wouldn’t be rushed into schools

  6.     Got unanimous decision because it was so important – be candid, we have to choose right vs wrong

Brown II

District courts must require schools to desegregate with “deliberate speed” (slow + careful) and at the earliest date

Cooper v Aaron

“Judicial Supremacy”: SC has the ultimate say about the Constitution’s meaning and so other government officials must accept the SC’s interpretations

• Court interpretation of constitution is “supreme law of the land” – exaggeration of Marbury v Madison

Edwin Meese challenging Cooper v Aaron

saying court decisions are supreme law of the land is at war with the basic meaning of the rule of law, SC decisions are to be interpreted differently than the constitution

What happens to DC and the 14th?

SC said although 14^th doesn’t apply, BOR does

• 5^th due process → equal protection is part of due process = reverse incorporation

• Critiques: this goes back in time intent wise; if intent of Equal Protection was to be part of Due Process, why would both be needed to be added into 14^th after 5^th?

The Lungar test

for determining state action 1982

1. First, deprivation must be caused by

• The exercise of some right or privilege created by the government or

•   By a rule of conduct imposed by the government or

• By a person for whom the government is responsible

2. Second, the party charged with the deprivation must be a person who may fairly be said to be a government actor.  This may be

• Because he is a government official

• Because he has acted together with or has obtained significant aid from government officials, or

• Because his conduct is otherwise chargeable to the government

Shelly v Kramer

Agreement where only white people could live in STL neighborhood becomes violation of 14^th when the court enforces it because government cannot deny equal protection

Burton v Wilmington Parking

Eagle coffee cannot discriminate as prohibited by 14^th because it has a symbiotic relationship with the government

• 1964 Civil Rights Act later prohibits segregation in places like this

Jackson v Metropolitan Edison

In regards to shutting off Jackson’s power because she did not pay, Edison is not connected enough with state to subject edison to 14^th w/o Due Process

• Influenced by merits of the case?

• Could’ve been logical to say this was gov, but wasn’t unconstitutional based on merits

DISSENT: factors of a monopoly make it state law; what if company said it wouldn’t provide to a black neighborhood?

Jones v Alfred H Mayer Co

42 USC 1982 ensuring all citizens have same property rights is a valid exercise of power under 13^th, so D cannot deny P property because of race

• Restrictions to property rights would be considered a “badge of slavery”

• Under § 2, Congress can use 42 USC 1982 to determine if something is connected to § 1 badges of slavery

Memphis v Green

Closure of the road does not impair property rights, just causes inconvenience, that 13^th was not designed to eradicate.  14^th not violated because no intent

• Just because cases a disparate impact does not make it unconstitutional

Bradwell v Illinois (1870s)

Rejected from IL bar because was a woman → eventually was made honorary member though

• Justice Bradley said womens right to be a lawyer is not in constitution

19th Amendment

Women gain the right to vote only – people argued that it should encompass more

Goesaert v Cleary (1948)

ONLY USED RATIONAL - prior to 1970s

it is rational for Michigan to exclude women from being licensed as bartenders unless they worked in bars owned by their husbands or fathers

• Not our job to question MI motive, just needs to be rational

The Feminine Mystique 1960s

1960s liberation movement was sparked

ERA – very controversial

• Liberals for

• Conservatives against – thought it would take away women’s right to support the home, include women in draft, etc

Reed v Reed

Eliminating a class of persons only to avoid needing to have hearings on their merits is not justification and is against Equal Protection

• Father should not have just gotten son’s estate because statutes says to give to the male, he definitely didn’t deserve the estate

• TAKEAWAY: Court struck down a law discriminating against women

  • Rational basis scrutiny – or was the court applying a higher standard without saying so?

Craig v Boren

INTERMEDIATE ESTABLISHED

gender-based difference with laws must serve important government objectives + be substantially related to achievement of those objectives – Intermediate (stricter than rational)

• HOLDING: Statistics provided aren’t enough to justify gender based OK law on alc sales, so this denies equal protection and is reversed

US v Virginia

government classifications must be substantially related to an important government purpose that can be demonstrated by the gov if it offers an exceedingly persuasive justification for the classification

• HOLDING: VMI unconstitutional under Equal Protection because their justification is not persuasive for not allowing women in schools (uses a generalization about women); and their women’s school is not comparable or sufficient

• intermediate srutiny → drifting toward strict?

• does not rule out separate but equal for genders

Current state of ERA

ERA proponents must convince courts:

a.     Congress deadline is invalid

b.     Revocation of ratification is invalid

Factors relevant for deciding scrutiny

                                               i.     Extent of prejudice and discrimination

                                             ii.     Isolated or dispersed? – Carolene “discreet and insular minority”

                                           iii.     Immutable? – doesn’t change and they don’t have control

                                            iv.     Extent group can protect itself politically – voting power

                                             v.     Likelihood of characteristic being relevant

Massachusetts board of retirement v Murgia

RATIONAL

requiring retirement at 50 is rationally related to the states objective of keeping officers physically able

US Dept of Ag v Moreno

RATIONAL

depriving a class for government benefits because they are an unpopular group is not rational and violates Eqal Protection

Cleburne v Cleburne Living Center

RATIONAL

Not rational for the city to deny permit to mentally disabled home because of the bias of the surrounding private buildings

• DISSENT [Marshall]: court is actually applying strict scrutiny here

Plyer v Doe

RATIONAL ?

Illegal aliens subject to rational basis scrutiny, but needs to serve a substantial government purpose (so actually intermediate?)

• HOLDING: National policy of keeping aliens out is not furthered by prohibiting these children from school – it wasn’t their choice to be here

Graham v Richardson

STRICT

AZ PA laws unconstitutional because saving welfare costs is not a justification to discriminate based on citizenship under Equal Protection and does not survive strict scrutiny

Exceptions – don’t need strict scrutiny

• Immigration laws need to differentiate

• State and local can decide if government jobs need to be citizens only (leadership, public school teachers, police officer)

• NOT for lawyers – would be unconstitutional

Students for Fair Admissions v. President and Fellows of Harvard

Equal protection is universal and does not change meaning when applied to different races

• HOLDING: consideration based on race in college admissions violates Equal Protection under the 14^th Amendment (UNC public) and VI of Civil Rights Act (Harvard private)

• race can still be a plus factor when shows different perspective - like mentioned in personal statement

Students for Fair Admissions v. President and Fellows of Harvard DISSENT

society is not colorblind, we can’t help it if we ignore race has always mattered; it is Equal Protections goal of an equal society and AA helps us get there

• Text: words only say equal protection for all – could’ve made more colorblind

• History: point to race-conscious Congress at the time of the 14^th

Regents v University of California v Bakke

HOLDING: Powell swing vote, thought CA med school could not have a quota, race and diversity is just a “plus factor”

• Educational benefits that flow from a racially diverse student body was their compelling argument

Grutter v. Bollinger

HOLDING: point system approach at Michigan was unconstitutional, but AA programs are okay – allowed holistic review with goal of getting “critical mass” of underrepresented minority students

RULE: AA programs are temporary – not meant to go on another 25 years

GO THROUGH AND ALL FOR PDP 0 - commerce clause + new fed X

X

ACA Individual Mandate + Commerce Power

Individual mandate is not valid under the commerce power because failure to have insurance is not an activity that is affecting interstate commerce, it is an inactivity, and we cannot regulate inactivity. Not necessary and proper.

• DISSENT: inactivity subsidizes the market and has a rational effect on interstate commerce

ACA Individual mandate + Tax Power

Congress can use tax power to influence conduct, this gives them a choice; even though this was labeled as a penalty, it works as a tax (when 2 meanings, adopt the meaning that does not violate the Constitution)

• dissent: take the plain meaning of the words to find that Congress intended this to be a penalty, and not a tax which is unconstitutional

ACA Medicaid Expansion

unconstitutionally coerces states to participate in the expansion of Medicaid – all or nothing nature is coercive given the amount of money involved - states dont really have a choice here

• Comandeering - SD v Dole factors

• DISSENT: this is the first time court is finding spending power to be coercive, states have no existing rights to federal funds

Does the Anti-Injunction Act prohibit the court from deciding the ACA tax?

Anti Injunction Act: prohibits courts from hearing lawsuits seeking to prevent assessment or collection of taxes. Challenger must first be taxed before they can bring a lawsuit seeking a refund.

• this is a tax for constitutional purposes

• this is not a tax for AIA statute purposes - statutory interpretation says penalty - since Congress wrote both, they determine how they relate to eachother