Constitutional Law.docx

Constitutional Law Modalities of Constitutional Interpretation Post’s Three Modalities, and Criticisms Doctrinal: authority of the const. as law ? stability, reliability What happens at T1, when there is no doctrine? ? you’ll need some other modality Why should we do something just b/c past courts have told us to? What to do w/ bad precedent? Historical: equation of constitutional authority w/ consent ? give effect to the original bargain that was struck/intent of the bargainers Fundamental criticism: why should we be bound by the consent/intent of long-dead framers? Implied consent: reverts to responsive modality ? implied consent requires a connection btw present day Americans and the founders, through a national ethos Responsive/Functional: authority of ethos (whole experience of nationhood) ? let const. respond to the times, but it must grow out of the original seeds Does this really rest on any authority? What exactly is an “ethos”? Counter-majoritarian: why should we allow court to impose its own conception of ethos on Congress/country? Bobbit’s Six Modalities Historical (Intentional) Textual Structural: relationships between institutions Doctrinal Ethical (Post: Responsive) Prudential: cost-benefit analysis Marsh v. Chambers [Handout] FACTS: Court finds that Neb. state legislature did not violate Establishment Clause in permitting or paying for prayers before legislative sessions Majority (Burger) opinion: Historical/Intentional modality: even First Congress had legislative prayer ? historical approval by First Congress of legislative prayer illustrates their intent behind Establishment Clause (to allow legislative prayer) Doctrinal: basically ignores doctrinal test Dissenting (Brennan) opinion: Response to Burger’s historical argument: (1) legislators who allowed prayer may have been influenced more by politics (daily hurly-burly of lawmaking) as opposed to constitutionality of their decision (higher law-making); (2) states are responsible for ratifying const. ? why do we care about intent of framers?; (3) meaning of const. isn’t fixed by intent of framers Doctrinal: under Lemon test, this would clearly be unconst.: (1) statute has a religious, not secular, purpose; (2) primary effect is religious; (3) leg. prayer improperly entangles state and religion (state supervision of religion, and creation of political divisions based on religion) Note: even Brennan seems to think that Lemon is too harsh and doesn’t heavily rely on it Functional/Responsive: what is Establishment Clause supposed to do, and how can we give effect to these functions w/ regard to this statute? Judicial Review History of Marbury v. Madison Spectrum of gov’t power: Very strong centralized gov’t: King George Strong centralized gov’t: federalists Weak centralized gov’t: anti-federalists Very weak centralized gov’t: states under Articles of Confederation 1800: Federalists lose election ? try to entrench themselves in gov’t by appointing life-tenured Federalist judges (e.g. Chief Justice Marshall) Marbury is a similar appointment ? BUT appointed to be justice of the peace (not life-tenured, Art. III judge) Republican backlash: try to undue Federalist entrenchment, incl. by withholding commissions Primary Criticism of Judicial Review: counter-majoritarian Justifications for Judicial Review Not in the text of const. ? requires two functionalist moves: Justifications for Constitutional Supremacy: Intent of Framers to bind future generations w/ their principles Written-ness of const. Supremacy Clause: fed. const./laws supreme law of land Justifications for Judiciary as Ultimate Interpreter of Constitution Judicial competence to interpret all laws Judicial competence to interpret at least some cases under the const. Judges take an oath to uphold the const. Defense of Judicial Review SCOTUS must have supervisory role: most important is fed. review of state legislation ? protects federalism Martin v. Hunter’s Lessee [CB 128]: state court finds unconst. fed. statute granting fed. appellate jx. over state court decisions/const. of state laws ? court: state sovereignty is subject to fed. sovereignty: fed. const. worried about state prejudices/interests obstructing regular admin. of justice, and of creating uniformity of decisions throughout country Courts protect fundamental values: legislatures are subject to politics of the time ? judges are better able to pronounce and guard our fundamental values (“ways of the scholar”) (Bickel) Courts keep political process pure: courts step in at times of process failure (Ely) Courts protect minorities from majority tyranny Court is not a distinctively counter-majoritarian body Court has its own base of power/legitimacy, which it’s unlikely to risk by going against majority (Dahl) Marbury [CB 108]: important for establishing power of judicial review, as well as political question (justiciability) doctrine FACTS: Adams withholds Marbury’s comm’n as justice of the peace ? court held that, although Adams violated Marbury’s legal right and he was entitled to a remedy, the law giving SCOTUS power to issue writ of mandamus was unconst. Holding: Judiciary Act vested original jx. in SCOTUS to issue writs of mandamus ? BUT, since mandamus isn’t listed in Art. III(2), Congress only could give SCOTUS appellate jx. to issue writ Marshall’s justifications for judicial review: How could Marshall have avoided reaching the question of judicial review? Recusal: he was the Sec. of State that didn’t deliver comm’n ? he didn’t have to recuse himself (statute at that time was lax; modern statute would have forced recusal), and felt he had a unique contribution to make to the case Delivery: could have said delivery of the comm’n was necessary, and since it wasn’t deliver, Marbury was not entitled to relief ? Marshall says no: delivery was just a formality (like mailbox rule in contracts) Political Question: could have said that const. puts the power of comm’n solely in executive’s province, and that it is only a political, not a justiciable, question ? Marshall says no: executive was required by law to deliver the comm’n; once Marbury was appointed, political part was over Statutory Interpretation [SEE HANDOUT]: could interpret statute not as granting original jx. to issue writ, but simply saying its something SCOTUS can do within its appellate jx. (which would still mean that SCOTUS was not able to issue the writ in this case) Const. Interpretation: says that Congress can make exceptions to the grant of appellate jx. in Art. III Limits on Judicial Review Political question doctrine: certain questions are political in nature such that court won’t hear the case What are political questions (Baker factors boiled down): Textual commitment of adjudicatory power to another branch Powell v. McCormack [CB 890]: Const. did not give Congress adjudicatory power to add new requirements for Congress ? BUT Congress did have adjudicatory power over disputes over textual requirements (e.g. age) Institutional competence: lack of judicially administrable standards Voting rights cases: adjudicating gerrymandering involved a lot of data analysis outside of court’s competence Comity: prudential reasons against interference ? judges are less politically accountable and are often asked to act after important/hard-to-reverse decisions have already been made Decision to wage war By declining to intervene in a political question, court isn’t saying anything about the merits of the case ? just saying there’s an countervailing reason for not intervening Standing: are you the right person to bring the case? Const. Requirements: An injury in fact that is Fairly related to defendant’s conflict, and Likely to be redressed by a favorable court decision Prudential Requirements: Prohibition on assertion of legal rights of third parties Prohibition on asserting generalized grievances shared widely among large group of people (e.g. “taxpayer” standing) Exception: taxpayer standing to challenge violation of Establishment Clause when money is being paid (Chambers) Prohibition on asserting claims not within “zone of interests” Congress sought to protect Justifications: Limit number of potential plaintiffs Difference in quality of advocacy if you don’t have dog in the fight Art. III: there must be a “controversy” ? if there are no actually injured parties, there really is no controversy (prohibition on AOs) Ripeness and Mootness Temporality: is it too early or too late? Exception to mootness: when particular completed act is capable of repetition (e.g. abortion) Cert. practice No appeal as of right to SCOTUS SCOTUS denies vast majority of cert. petitions Federalism Federalist Structure of Government Federalism: two sovereigns (central and state) occupy the same physical space Originalist vision: under the const., Congress was to have limited and enumerated powers as a check on its capacity to trump state legislation Congress’s trump card: supremacy clause Limitations: Enumerated powers, mainly Art. I, Sec. 8 Specific prohibitions on Congressional powers (Art. I, Sec. 9) 10th Amdt.: powers reserved to the state History: Rise of Congressional power 1819: McCulloch interprets Necc. and Proper clause 1824: Gibbons uses Commerce Clause Why did this happen under Marshall? ? reason why he was appointed was to further Federalist vision Early 1900s: cases under Commerce Clause going both ways Heyday of Congressional power (1937-95) 1937: “switch in time” makes SCOTUS back down No Congressional enactments struck down under Commerce Clause Devolution of power back to states 1995: Lopez strikes down Gun Free School Zones Act as in excess of Commerce Clause Not clear how far SCOTUS will take this Values of Federalism Promotion of efficiency National gov’t is better at solving coordination and collective action problems (trade, foreign affairs, nat’l projects, environment, internalizing negative externalities from individual states) State gov’t is better at solving local problems b/c of geography/mores Promotion of individual choice Permitting states to come up w/ own solutions ensures that more people’s preferences are satisfied (esp. if people move to states w/ preferred policies) BUT people often unable to move, or won’t move on single issue ? also, does this increase polarization in nation? Promotion of experimentation States as social laboratories w/o risk to nation BUT states are more often followers than not Example: Kennedy concurrence in Lopez: experiment with how to keep guns out of schools Promotion of citizen participation Population is better able to participate at local rather than fed. level BUT doesn’t explain why we stop at state level: shouldn’t we be giving more power to localities? ? also, assumes that fed. gov’t will be more likely to be captured by interest groups Corollary: Kennnedy concurrence in Lopez: keeping federal-state lines clear keeps the governmental functions from blurring into one another, and thus makes it easier for citizens to hold those responsible accoutnable Prevention of tyranny Double security: gov’t split btw states and feds, and each gov’t is then split into different departments ? lots of checks and balances BUT Supremacy Clause is big thumb on the scale in favor of feds Example: Kennedy concurrence in Lopez Foundational Federalism Cases McCulloch [CB 38] FACTS: MD successfully sues cashier McCulloch for refusing to pay state tax on Bank of U.S. Question #1: Does Congress have power to create Bank? ? court: yes SEE MODALITIES HANDOUT Question #2: Does state have power to tax the Bank? ? court: no Structural modality: fed. gov’t is supreme, and state is only supreme over things which are particularly within its sovereignty ? the Bank is a fed. creature, and state doesn’t have sovereignty over it (Bank has constituency of nation, not of individual state) Essence of supremacy is power to remove all obstacles to action within its sphere ? if state taxation is an obstacle to actions over which fed. gov’t is supreme (e.g. establishment of nat’l bank), then fed. gov’t has power to remove that obstacle Taken to extreme, power to tax is power to destroy ? we can’t trust a state not to take the power to the extreme b/c the state isn’t answerable to other states w/ regard to its taxing power (no taxation w/o representation) Critique: is power to tax really power to destroy? Some other concerns: Even if tax doesn’t destroy Bank, it still lets individual states work their will against a nat’l institution Collective action problem: taken as a whole, state taxes may destroy Bank Limitations on federal immunity: States can levy nondiscriminatory taxes on federal officials General local laws that incidentally affect mode of carrying out fed. employment (e.g. postal workers need to obey local traffic rules ? BUT they don’t have to get state driving license) Gibbons [CB 168]: important for: (1) Congressional preemption of state action ; (2) seeds of dormant commerce clause in Johnson’s concurrence FACTS: Ogden, who has a state license giving him exclusive right to operate ferries in NY waters, sues to stop Gibbons from beginning a competing ferry service under a federally-granted license ? SCOTUS rules for Gibbons Interpretation of interstate commerce: “commerce” includes navigation, and “interstate,” though it means more than one state must be implicated, still allows for regulation into states Concurrent powers?: Question: did the grant of power to fed. gov’t to regulate interstate commerce leave any of that power to the states, until fed. gov’t acts? Marshall: doesn’t have to reach that question ? fed gov’t did act in this case, so state could not exercise the power, even if it did have it Although states and fed. may employ same means (e.g. issuing licenses), doesn’t necessarily mean they are exercising same power (e.g. state regulating intrastate commerce, fed. regulating interstate commerce) Once Congress acts, it must be superior, and anything states do, even if an otherwise proper exercise of their own powers, that conflicts w/ fed. action must give way Johnson’s concurrence: dormant commerce clause: even if Congress hadn’t acted here, state would still lose ? fed gov’t occupies the field of interstate commerce, and power to regulate includes power to not regulate Commerce Clause and Substantive Due Process Due Process versus Equal Protection Due Process: 3 forms Procedural: notice; opportunity to be heard Substantive: not textually enumerated (e.g. freedom of contract) Vehicle for incorporation: enumerated rights, but not against particular sovereign (e.g. 14th Amdt. incorporates against states) Equal Protection: arbitrary distincitons Lochner Era: Ebbing of Congressional Power Attacks on Congress from both sides: Commerce Clause: cases are going both ways ? sometimes SCOTUS lets Congress regulate, sometimes it doesn’t States challenging federal power Due Process: Lochner lets individual rights eat into both states and fed. Individuals challenging state and federal power Recurring doctrinal issues: Subject-matter: is the particular subject of Congressional regulation “interstate” as opposed to local activity? Purposes: is Congressional regulation within the purposes for which Congress was delegated interstate commerce power, or is it merely a pretext to do something else? Reservation of powers: regardless of subject-matter and purposes, does a particular instance of Congressional regulation run afoul of 10th Amdt. reservation of powers to states? Pre-1937 (Switch in Time) Commerce Clause Distinctions NOTE: All of these distinctions disappeared post-1937 Valid Exercise of Congressional Power Invalid Exercise of Congressional Power Interstate (“throat of commerce,” “stream of commerce”) ? Gibbons: means something pretty broad Intrastate (Schechter: chicken had come to rest within the state, so fed. reg. unconst.) Commerce (subject-matter distinction): set of activities that circled around goods that already existed Agriculture, manufacturing, mining (subject-matter distinction): seen as existing pre-commerce Direct effects on commerce Indirect effects on commerce Commerce Clause Cases Champion [CB 437]: inherently harmful product (lottery tickets) FACTS: Appellants indicted for conspiring to transport lottery tickets across state lines in violation of fed. statute ? SCOTUS upholds statute under Commerce Clause Appellants: lottery tickets are not “subjects of commerce” b/c they have no intrinsic value ? [more important] even if they are subjects of commerce, Congress only has power to regulate, not to prohibit Are lottery tickets subjects of commerce? ? SCOTUS: of course: people buy them for chance to win $ Dissent: insurance contracts are like lottery tickets (both have contingent values), and those contracts are not treated as subjects of commerce ? Distinction btw the two? Tickets are assignable; insurance policies are not Does Congress have power to prohibit? ? SCOTUS: yes: power to regulate includes power to prohibit (like McCulloch); Congressional power to regulate interstate commerce is plenary; if states have power to prohibit noxious lotteries, why can’t Congress keep interstate commerce free of such pollution (esp. when Congress is only body that can occupy the field of interstate commerce) Dissent: 10th Amdt. leaves police power to the states ? here, Congress isn’t exercising its power to regulate commerce, but an alleged police power to suppress lotteries Hammer [CB 441]: important for process/product distinciton FACTS: Father of child millworkers challenges fed. statute imposing a 30-day stop on goods manufactured by minors before they can enter interstate commerce ? SCOTUS strikes down law as in excess of Commerce Clause Process v. Product Distinction Hammer says the goods themselves are not harmful ? what Congress didn’t like was the process by which goods were manufactured, and Congress doesn’t have power to regulate process Congress is both doing something it was not delegated to do (to regulate process; deter unfair competition), and intruding on 10th Amdt. reserved police powers Not like in Champion, where the lottery tickets themselves were harmful Hammer has been overruled w/ respect to process/product distinction ? although it reemerges in int’l context Prisoner’s dilemma: child labor laws may be optimal, but states have incentive to cheat ? regardless, Congress doesn’t have the power to regulate against unfair competition Due Process Clause Cases Lochner [CB 417]: important for substantive due process idea of freedom of contract FACTS: Bakers challenge state maximum hours legislation ? SCOTUS strikes down based on unenumerated right of “freedom of K” Freedom of K: SCOTUS finds this as part of the liberty guaranteed in 14th Amdt. Scrutiny: health regulation not a reasonable interference w/ freedom of K Baking isn’t an unsafe trade, and the hours a baker works doesn’t affect public health through quality of bread Fairly stark categorization of which occupations are dangerous and which are not (unlike Harlan’s dissent) Bakers as a class are not in need of state protection Pretext: seems that the real purpose of statute was not to regulate public health, but to regulate relationship btw master and employees Harlan’s dissent: Disagrees that baking is certainly not a dangerous profession ? makes an empirical argument that the evidence is at least unclear either way Harlan focuses more on a continuum of dangerousness than majority Limited judicial review: making these decisions is ordinarily in the province of the legislature, not the judiciary ? it is enough to say that reasonable men could disagree about need to regulate work hours in this way Holmes’ dissent: Criticizes majority for expounding a certain social economic theory (Social Darwinism), which the 14th Amdt. does not enact Finding unenumerated rights: concerned w/ counter-majoritarian court striking down statute using an unenumerated right ? BUT SCOTUS can find unenumerated rights when a reasonable person would say that the proposed right is deeply rooted in nation’s traditions and history (which is not the case re: freedom of K) Coppage [CB 424] FACTS: statute prohibited “yellow dog” contracts (contracts forbidding employees to join labor unions) ? SCOTUS ruled statute unconst. violated freedom to contract Freedom to K: based on liberty and right of private property State interest in regulating freedom of contract: unequal bargaining power is inherent in freedom to contract ? not a legitimate state interest to try to remove those inequalities (e.g. by forbidding anti-union contracts) Muller [CB 426]: SCOTUS upheld statute limiting women’s workday ? paternalism (women are weak and need to be protected by men), romantic paternalism (women are important for raising children) The New Deal Era 1937 Switch in Time After SCOTUS strikes down New Deal legislation (e.g. Hammer, Schechter), FDR gets fed up and proposes court packing scheme Const: Art. III says there needs to be a SCOTUS, but doesn’t specify # of justices Commerce Clause Cases Jones & Laughlin Steel [CB 549]: SCOTUS beginning to back off FACTS: Jones & Laughlin refuse NLRB’s order to reinstate workers it had fired for engaging in union activity, arguing that the fed. statute was in excess of Commerce Clause ? SCOTUS upholds statute but doesn’t overrule Schechter Since company was engaged in manufacturing, you would think regulation would be invalid ? BUT SCOTUS distinguishes: Direct v. Indirect: this was a huge steel manufacturing company, and labor strife here would have a direct and deleterious effect on interstate commerce ? not like Schechter, where the effect of chicken processing plants was too remote Steam of commerce: even though engaged in manufacturing (so not technically “commerce”), this was a vast interstate corporation ? thus was in the stream of interstate commerce Darby [CB 551]: important for overruling Hammer and the process/product distinction FACTS: Lumber company challenges FLSA (minimum wage/maximum hours) as in excess of Commerce Clause Erasing Process/Product Distinction: Explicitly overrules Hammer: (1) paints it as an anomaly that’s never been followed; (2) retirement of Four Horsemen made it easier to overrule Also moves beyond Champion: not just about goods themselves being noxious Adopts unfair competition/prisoner’s dilemma reasoning: valid fed. interest to regulate intrastate activities that eventually send goods out to interstate commerce b/c results in race to the bottom Reaches pretty far into state: not only prohibits shipment of goods in interstate commerce, but also directly imposes work standards w/ respect to any employees engaged in production of interstate goods ? since employer doesn’t really know which goods will go to interstate commerce, statute necessarily and appropriately reaches everyone so long as there’s some intent to ship some goods interstate SCOTUS also says that 10th Amdt. is a truism ? not an independent source of authority for states Wickard [CB 553]: important for really pushing Commerce Clause and aggregating economic activities FACTS: Sec. Ag. penalizes wheat farmer for exceeding his allotment under fed. statute, even though the wheat was entirely for his own consumption ? SCOTUS upholds statute as not in excess of Commerce Clause Substantial economic effect: Congress can regulate even purely local activity if it has substantial economic effect on interstate commerce ? farmer was screwing w/ Congress’s attempt to control wheat prices by adding too much supply (or, rather, decreasing demand) SCOTUS seems to erase the direct/indirect effect distinction (Laughlin Steel) Due Process Cases Blaisdell [CB 501] West Coast Hotel [CB 510]: important for (indirectly) overruling Lochner FACTS: Hotel defends ist violation of state minimum wage legislation for women on basis of freedom of contract ? SCOTUS finds for chambermaid Rejecting “freedom of contract”: “liberty” in const. does not include freedom of contract ? BUT what does “liberty” mean then? B/c SCOTUS does seem to be saying that the regulation does impinge on some type of liberty; otherwise, why would it need to determine if there was due process? Due process = regulation which is reasonable in relation to its subject and adopted in the interests of the community Finds that protection of women is a legitimate state interest and that fixing a minimum, livable wage is a reasonable means to that end Although SCOTUS talks about protecting women, it doesn’t try to fit this into a Muller exception ? broader rejection of freedom of contract Spillover: worried not just about abuse effect on women, but the fact that society will have to pick up the slack Indirectly overrules Lochner: overrules Adkins, which relied on Lochner Second Reconstruction to Rehnquist Revolution (1937-1995) Deference: during this time, SCOTUS gives lots of deference to Congress re: Commerce Clause ? BUT SCOTUS is more aggressive re: Substantive Due Process and Equal Protection (seeds: Carolene FN 4) Carolene Products [CB 513] FACTS: Carolene Products indicted for shipping skimmed milk interstate in violation of fed. law ? SCOTUS upholds the law under both Commerce Clause and Due Process Commerce Clause [least important]: Congress can exclude articles whose use can reasonably be conceived to be injurious (like Champion: intrinsically dangerous products) Due Process: SCOTUS first engages in empirical analysis and finds that Congress was justified in finding that filled milk was dangerous Not for SCOTUS to determine whether there were less restrictive alternatives (e.g. labeling) or if statute didn’t go far enough (Congress may choose address one evil and not another) Rational basis (dictum): rebuttable presumption that regulation has rational basis ? since it was at least debatable whether or not filled milk should be regulated in this way (or at all), presumption was not rebutted ? FN 4 opens door for categories deserving higher scrutiny Specific const. prohibitions: Bill of Rights, as incorporated in 14th Amdt. Due Process Some rights not incorporated against states: (1) right to bear arms; (2) 3rd Amdt.; (3) grand jury clause; (4) civil jury guarantee; (5) bail provision Political rights: when reg. restricts political processes that would normally be used to repeal undesirable leg. Note: there may be unenumerated political rights (e.g. right to vote) which would fall outside of 1 Discrete/Insular minorities: by definition a counter-majoritarian protection of minorities Involves substantive decision to pick and choose which minorities you want to protect Irony: you have to be powerful enough to get on Court’s radar in order to be recognized as a powerless minority Would it be better to protect “diffuse and anonymous” minorities? (Ackerman ? BUT note Yoshino’s argument re: gays: fact that gays are “diffuse and anonymous” means they can better infiltrate political processes/become accepted, and thus less in need of protection) Lee Optical [CB 520]: important for moving rational basis out of dictum and setting up radically deferential scrutiny FACTS: Due Process and Equal Protection challenge to statute prohibiting opticians from fitting lenses to face w/o ophthalmologist/optometrist prescription Rational basis review: SCOTUS gives radically deferential scrutiny Judicial imagination: rational if SCOTUS can imagine some rational reason for legislation ? “enough that there is an evil at hand, and that it might be thought that regulation was rational way to correct it” Legislature itself doesn’t have to articulate reason for reg. Criticism: Gunther says that, re: economic legislation, SCOTUS should be less willing to imagine rationales and should instead look to some state source (e.g. legislative hx.) for a rationale ? What about process failure (e.g. interest groups trick legislatures)? Does rational basis let SCOTUS imagine reasons for regulation that legislators never thought of/didn’t intend? Statute may be needless, wasteful, or not logically consistent ? that’s up to legislature, not SCOTUS Equal Protection and Due Process: SCOTUS treats both clauses as affording basically same degree of protection in cases of ordinary social or economic regulations ? unlike Lochner, which gave Equal Protection little importance outside of race Civil Rights Act Title II (prohibiting on public discrimination) and Commerce Clause ? criticism: is it a good idea to base civil rights legislation on Commerce Clause? Doesn’t it require convoluted attempts to bring particular establishments within interstate commerce? Note that SCOTUS retracts Commerce Clause jurisprudence; does this endanger civil rights legislation? Heart of Atlanta [CB 560]: SCOTUS upheld Title II re: prohibiting discrimination in a motel easily accessible by interstate highway under Commerce Clause ? fact that Congress was legislating a moral wrong as well didn’t detract from fact that discrimination in such hotels greatly affected interstate commerce (blacks would have to find lodging elsewhere) Katzenbach [CB 560]: SCOTUS upheld Title II re: prohibiting discrimination in a restaurant located near interstate highway ? rational basis: excluding blacks result in less interstate commerce; discrimination causes unrest affecting general interstate commerce; discrimination deters professionals from moving into such areas and thus hurting industry ? SCOTUS cites Wickard: even though particular commerce here (this one restaurant) might be trivial, it’s part of a larger whole Rehnquist Revolution Pushing back on Commerce Clause jurisprudence: a lot now depends on whether regulated activity is classified as economic or not, and whether link to interstate commerce is too attenuated ? very subjective determinations, leading to lots of uncertainty/litigation Lopez [CB 601]: important for pulling back on Commerce Clause power FACTS: Student challenges federal statute prohibiting guns in schools ? SCOTUS strikes down statute as in excess of Commerce Clause SCOTUS says that Congress can regulate three areas under Commerce Clause ? Lopez test: Channels of interstate commerce Instrumentalities of interstate commerce, or persons or things in interstate commerce Activities that substantially affect interstate commerce Four factors for “substantially affect”: Is the activity economic in nature? Lopez distinguishes Wickard: Wickard aggregated economic activities ? having guns in schools is not economic, so can’t aggregate Also, regulation is not an essential part of a larger regulation of economic activity ? suggests that regulation of intrastate non-economic activity would be OK if part of larger scheme regulating economic interstate activity (see Raich) Is there a jurisdictional element? Jx element limits application of statute (e.g. can’t bring into school a gun that has travelled in or otherwise affects interstate commerce) Compromise: makes statute const., but limits applicability Are there Congressional findings: not necessary or sufficient to guarantee constitutionality, but helpful Is there a sufficiently close link btw activity and interstate commerce: link cannot be too attenuated SCOTUS rejects assertions that guns in schools affect interstate commerce b/c they: (1) hurt learning process and thus result in less-educated workforce; (2) increase costs of violent crime which affect entire nation; (3) reduce willingness of people to travel Congressional remand: some of opinions suggest that Congress could revisit the statute and include more explicit findings linking guns to interstate commerce ? if SCOTUS excepts statute w/ revised findings, why force Congress to do that now? Clear statement rule: this is a way for SCOTUS to enforce federalism through backdoor by requiring Congress to carefully think out and explain the interstate link More than clear statement, might push Congress to giving greater respect to states Kennedy’s concurrence: On one side of the ledge, Kennedy stresses doctrine/stare decisis ? might militate against pushing back on Commerce Clause power On the other hand, Kennedy is big into states rights ? makes a structural argument based on federalism Seems to focus on social experimentation justification: schools are traditionally province of state, and fed. statute would prevent states from experimenting with different ways of keeping guns out of schools Thomas’ concurrence: Makes strong textualist/orignalist argument: privileging document (const. ) over doctrine Textualist arguments: Original understanding of “commerce” = selling, buying, bartering, transporting for these purposes ? doesn’t include this activity Much of Art I, Sec. 8 (e.g. Congressional power to coin $) would be surplusage if “commerce” meant something broader than that Intra-textualist: looks at how “commerce” is used elsewhere Like intratextualism in McCulloch (“necessary”) and Roe Suggests that SCOTUS should seriously look again at Commerce Clause jurisprudence: like Darby (overruling Hammer’s product/process distinction), Thomas argues that 1930s jurisprudence was outlier ? BUT this jurisprudence was followed for 70 years Stevens’ dissent: guns are articles in interstate commerce ? therefore this should be a Category #2 case, not Category #3, under Lopez Souter’s dissent: doctrinal and prudential concerns ? this is bringing us dangerously back to pre-1937 days of doctrinal instability, leading us on path towards another const. crisis (like court-packing scheme) Breyer’s dissent: Criticizes majority for not giving Congress deference it is due under rational basis test: const. grants Congress power to implement Commerce Clause, and Congress is more competent to make empirical judgment Rational basis: discusses at length how guns in schools hamper learning environment and result in poorly educated workforce Morrison [CB 623]: important for following Lopez FACTS: SCOTUS strikes down VAWA as in excess of Commerce Clause Gender-motivated crimes of violence are not economic in nature, nor is there a sufficient link btw activity and interstate commerce Further, no jurisdictional limit, or sufficient Congressional findings Federal v. national distinction: violence against women may be a nat’l problem (in that it happens across the nation), but is it really federal (in that it affects relationships btw states) Raich [CB 624]: important for reaffirming Lopez, but finding that this fell on side of Wickard FACTS: SCOTUS (Lopez dissenters) upheld fed. law prohibiting cultivating/using medicinal marijuana, even if marijuana had never crossed state lines Majority: sees this as similar to Wickard ? legitimate reasons to fear that medical marijuana in CA would spill over into interstate market Scalia’s concurrence: emphasizes that Lopez suggests that Congress may regulate local noneconomic activity as part of larger regulation of interstate commerce ? invoking Necc. & Proper clause, only question is whether means chosen are reasonably adapted to the legitimate end O’Connor’s dissent: this leaves little left of Lopez Vertical and Horizontal Federalism Vertical Federalism: relationship between federal gov’t and states Taxing and Spending Power (Art. I, Sec. 8, Cl. 1): Congress has power to tax and provide general welfare of United States S.D. v. Dole [CB 627]: important for establishing test for when Congress can use Spending Power to influence state legislation FACTS: SCOTUS upholds Congressional statute withholding federal highway funds from states w/ drinking age below 21 as not in excess of Spending Power Congress is regulating drinking age, which looks to be state power (21st Amdt: interpreted to grant state power over alcohol regulation) ? BUT SCOTUS says Congress can indirectly regulate this area through Spending Power Four-part test (all conditions must be met): Conditions placed on federal grants must be in pursuit of general welfare Conditions must be unambiguous so states know the consequences of their choice Conditions on federal grants must be related to federal interest in particular nat’l projects or programs Conditions may not violate other constitutional provisions O’Connor’s dissent: broad spending power lets Congress do through the back door what it can’t do through front door ? also, link btw nat’l interest and conditions imposed is too attenuated: conditions are both over and under-inclusive for keeping roads safe from drunk drivers Horizontal Federalism: relationship btw states Dormant Commerce Clause: negative inference from Commerce Clause ? even where Congress has not acted, Commerce Clause restricts state’s regulation of interstate commerce such that states cannot engage in economic protectionism (see Gibbons concurrence) Other examples where const. lets Congress dominate the field: declaration of war; post offices; roads; printing $; immigration/naturalization Example of concurrent powers: taxation (see McCulloch: states can tax within their sphere of sovereignty, but cannot tax within fed. sphere) Black-Bird Creek [CB 730]: early reluctance to create Dormant Commerce Clause ? Marshall doesn’t want to let Congress occupy field of interstate commerce when it hasn’t spoken Application of Dormant Commerce Clause Question 1: Does state regulation impinge on an activity covered by federal legislation? Yes: state regulation is invalid under simple preemption analysis (Gibbons) Question 2: Does state regulation discriminate against interstate commerce? Yes: virtually per se rule of invalidity ? in order to survive must satisfy either: Strict scrutiny: further an important, non-economic state interest and there must be no reasonable nondiscriminatory alternatives Market participant exception: state must be acting as a purchaser, seller, subsidizer, or some other kind of participant in the market Question 3: Does the (non-discriminatory) state regulation burden interstate commerce? ? i.e. not discriminatory in purpose, but in effect Pike balancing [CB 731]: if statute effects a legitimate local purpose, court must balance this interest against the burden on interstate commerce (in this case, SCOTUS found that state’s interest in protecting reputation of its produce by requiring cantaloupes to be packaged in-state was outweighed by substantial financial burden it placed on cantaloupe sellers engaging in interstate commerce) Hughes [CB 731]: refined Pike into 3-part test Does challenged statute regulate even-handedly with only incidental effects on inter-state commerce, or does it discriminate against interstate commerce either on its face or in practice effect Does statute serve a legitimate local purpose, and, if so Can alternative means promote this local purpose as effectively w/o discriminating against interstate commerce NOTE: Congress likes Dormant Commerce Clause (structural argument: mechanism for monitoring state regulations that threaten integrated national economy) and legislates against that background ? if SCOTUS drops Dormant Commerce Clause jurisprudence, Congress would probably enact broadly worded statute to bring courts back into doing what it already is doing Privileges & Immunities Clause (Art. II, Sec. 2): citizens of each state entitled to P&I of citizens in several states What are the P&I of citizens of several states (Corfield): Interstate travel Reside in state for biz or other purposes Do biz in state Take, hold, and disposes of property Equality, rather than fundamental rights, principle: you can’t favor your citizens over citizens of other states NOTE: different from P or I clause of 14th Amdt., which includes fundamental rights (Slaughterhouse) P&I test for challenged statutes: Does the legislation treat out-of-staters differently w/ respect to a recognized P&I? NOTE: discrimination must be purposeful; otherwise, law is valid (unlike DCC, which covers non-purposeful discrimination under Pike/Hughes balancing) If so, is the legislation tailored (no less restrictive means) to a substantial justification? Separation of Powers Theoretical Background Montesquieu: 3 departments, each w/ special institutional competence Madison/Fed. Paper No. 51: less about SoP than checks & balances ? Madison feared concentration of power, so he actually wanted interaction btw departments of gov’t in order to check & balance one another (double security) Executive Power: Veto Power Art. I, Sec. 7, Cl. 2: bills passed must be approved by prez., who may veto BUT Congress can over-ride veto ? legislative check Executive Power: Pardon Power Art. II, Sec. 2, Cl. 1: prez. can pardon for offenses committed against U.S. ? interpreted as not allowing for Congressional limitation BUT prez. cannot pardon for offenses against states (federalism check) or someone who has been impeached (SoP check) Executive Power: Treaty Power Art. II, Sec. 2, Cl. 2: prez. has power to make treaties, which have supremacy over pre-existing statutes (although a subsequent statute has supremacy ? last in time controls) BUT treaties must be ratified by Senate (although prez. can bypass through executive agreement, an unenumerated power) ? legislative check Executive Power: Appointments Power Art. II, Sec. 2, Cl. 2: prez. can appoint ambassadors, judges, officers of U.S. BUT appointments must be approved by Senate, and Congress may vest appointment of inferior officers in the courts ? legislative check Executive Power: Chief Executive/Commander in Chief Does the prez. have unenumerated powers? Const.: Art. II, Sec. 1 vests “executive power” in Congress ? compare to Art. I, which vests in Congress “powers herein granted” Jackson’s Youngstown concurrence [CB 827]: test for unenumerated executive powers ? becomes much more important than majority opinion Prez. acts w/ express or implied authority of Congress ? maximum prez. authority Authority both of prez. in his own right and that which Congress delegates Prez. acts in face of Congressional silence ? prez. has authority so long as he doesn’t take over function of another branch of gov’t or prevent it from performing that function Prez. acts against express will of Congress ? prez. has little authority and action is likely invalid Youngstown [CB 823]: especially important for Jackson’s concurrence FACTS: Truman, on his own authority, seizes steel mills in order to prevent the threat of a nationwide strike from impeding military efforts in Korea (no Congressional declaration of war) ? SCOTUS says prez. was Korenot permitted to do this Black’s majority (textualist: action authorized by const.?): Source of authorization: no statute authorizing seizure ? so, if valid, authority had to come from const. itself (Art. II) Authority as “commander in chief”: “theatre of war” doesn’t include a domestic labor dispute Authority of executive/“faithfully execute” laws: Truman wasn’t executing any law, but was making law himself ? Art. I vests all legislative powers only in Congress Frankfurter’s concurrence (structural: Congress forbade this): Barred by statute: interprets Labor Mgmt Relations Act as implicitly denying prez. authority to unilaterally seize plant BUT leaves open idea that prudential and structural modalities could work together to permit prez. seizures during wartime: “Gloss of life” on const. text: a long unbroken practice, known by Congress, by prez. who was purporting to act within exec. const. power may bring such power within exec. power Douglas’s concurrence (text/intent: Takings Clause vests seizure power in Congress; structural: SoP): Takings: 5th Amdt. says that all takings must be compensated, BUT only Congress has power over purse strings ? therefore, implication must be that only Congress has power to seize (since seizure w/o compensation would be unlawful) Truman is essentially trying to exercise a lawmaking power Rejects prudential model: Douglas notes that the slow pace of legislature may make it more desirable to let prez. do this ? BUT just b/c it is more desirable doesn’t make it constitutional Jackon’s concurrence (structural: is prez. acting against Congress’s will?; textual: is this an exercise of commander in chief?) Test: much more fluid test than Black (see above) Truman’s seizure falls under Category #3: Congress has enacted statutes re: seizure of private property which are inconsistent w/ Truman’s action ? therefore, seizure would only be lawful if it’s within Truman’s power and outside of Congress’s Power as commander in chief isn’t so uncontrolled as to include seizure not in case of rebellion but of a lawful economic struggle Vinson’s dissent (prudential: in time of great crisis, prez. must be able to act): Can this fit into one of Jackson’s categories? ? depends on level of generality: are we looking just at this particular seizure, or are we looking at within the context of the prosecution of war? Korematsu [CB 966]: important for generating strict scrutiny analysis FACTS: Korematsu, refusing to obey military order to go to internment camp, is convicted under federal statute making it a crime to disobey a military order ? SCOTUS upholds the order Strict scrutiny: genesis of strict scrutiny: legal restrictions that curtail rights of s single racial group are immediately suspect BUT Korematsu is anomalous b/c it upholds action under strict scrutiny: Military necessity is big thumb on scale in favor of gov’t Korematsu not excluded b/c of his race, but b/c he was member of race at war w/ USA Military necessity exception: SCOTUS grants lots of deference to military ? where is this in the const? Frankfurter’s concurrence splits the difference: deference to military in times of war, but not in times of peace ? BUT const. doesn’t differentiate btw times of war and peace Murphy’s dissent: Classic strict scrutiny analysis: this action tracks racial animus more closely than it does national security ? unreasonably related to military necessity b/c both over-inclusive (excludes all Japanese-Americans, regardless of individual’s loyalty), and under-inclusive (other non-excluded people engage in disloyal activities) NOTE: in FN to discussion that legislation was based on misinformation and prejudice against Japanese, Murphy notes that special interest groups were particularly active in applying pressure for evacuation Jackson’s dissent: Another classic strict scrutiny analysis: under-inclusive and driven solely by race ? Korematsu would be excluded while a non-Japanese person would not solely b/c of his race Prudential argument for political question doctrine? Jackson says that, while this action may be militarily expedient, it shouldn’t get the stamp of judicial approval lest it open the door for wider invocation of the principle of racial discrimination ? Jackson argues that SCOTUS should either strike down the action, or not rule on it at all (leave it as a political question) Executive Power: Habeas Corpus and Military Commissions Writ of Habeas Corpus: legal action through which a person can seek redress for unlawful detention Not actually guaranteed as an affirmative right Suspension Clause (Art. I, Sec. 9): writ can only be suspended in cases of rebellion or invasion ? negative implication that writ exists Presidential suspension of the writ Lincoln suspends writ during Civil War ? const? Suspension Clause is in Art. I, not Art. II: has now been interpreted as only allowing Congress to suspend writ Milligan [CB 287]: doesn’t address question of whether Lincoln’s suspension was constitutional Early cases on military commissions Milligan [CB 287]: important for setting precedent for more limited executive military powers (must be distinguished in later cases if you want more power) FACTS: Milligan convicted by a military tribunal in Indiana (which was not a theatre of military operations) for allegedly planning an armed uprising against Union ? SCOTUS unanimously orders Milligan released Majority: more extreme ? military courts can only try individuals when the civilian courts are closed (i.e. martial law/theatre of war) Concurrence: less extreme ? Congress could have authorized these military tribunals within its war powers (declare war, raise/support/govern armies), but it didn’t Quirin [CB 872]: important for being on opposite end of spectrum as Milligan, and for setting up lawful-unlawful belligerent distinction FACTS: Nazi saboteurs (incl. American citizen) landed on USA soil, captured, and convicted by military tribunal set up by Executive Order pursuant to Congressional statute ? SCOTUS upholds the convictions Congressional authorization: Articles of War say prez. can set up military tribunals to try persons for crimes against laws of war NOTE: b/c SCOTUS found Congressional authorization, it left open question of whether prez. can unilaterally set up military commissions Unlawful/lawful distinction: lawful combatants are subject only to capture and detention, while unlawful combatants are also subject to trial by military tribunal ? ? were unlawful under laws of war b/c buried uniforms/entered as spies NOTE: Hamdi: O’Connor focuses more on combatant-civilian distinction Haupt’s citizenship? Doesn’t matter ? citizens can still be enemy belligerents NOTE: Hamdi: Scalia differs on question of citizenship Distinguishing Milligan: Milligan was not a belligerent, and thus not subject to laws of war NOTE: foreshadowing Hamdi Hamdi and Rasul: detainees can challenge their enemy combatant status and file habeas petitions, regardless of citizenry and location in states or Guantanamo ? DoD sets up Combatant Status Review Tribunals (CSRTs) to determine whether individuals are enemy combatants Hamdi [CB 841]: important for saying that AUMF gives prez. authority to detain citizens as enemy combatants for duration of active hostilities, but that enemy combatants are entitled to some due process to challenge their classification before some neutral decisionmaker FACTS: Hamdi, an American citizen, seized as an enemy combatant in Afghanistan and detained in a Naval brig w/o charges ? SCOTUS plurality says prez. had authority to detain citizen as “enemy combatant” but Hamdi was entitled to some process to challenge classification Question #1: Does prez. have authority to detain citizens who qualify as “enemy combatants”? ? SCOTUS says yes “Enemy combatant”: part of/supporting hostile forces in Afghanistan and who engaged in armed conflict against USA in Afghanistan Congressional authorization: AUMF authorized prez. to detain citizens (incident of war, and thus part of “necc. and approp. force”) ? this puts detention in Youngstown Category #1 NOTE: O’Connor thus doesn’t reach question of whether prez. may detain absent Congressional authorization Scalia’s dissent: AUMF doesn’t authorize detention ? even if it did, AUMF did not suspend writ, and therefore Hamdi cannot be detained w/o charges Does it matter that Hamdi is a citizen? Non-Detention Act: says citizens can’t be detained except pursuant to act of Congress ? O’Connor says AUMF is such an act Souter’s concurrence: reads AUMF as not authorizing detention, meaning NDA bars detention of citizens (Category #3) ? BUT concurs b/c he thinks giving some process is better than nothing Scalia’s dissent: also doesn’t think AUMF authorizes detention of citizens Doctrinal: citizens can still be enemy combatants (Quirin) Can citizens be detained for in perpetuity? O’Connor doesn’t reach this question: enemy combatants can be detained for length of active hostilities, which are still happening in Afghanistan NOTE: const. may not be immune to broad sociopolitical changes ? O’Connor suggests that understandings that prez. can detain only for duration of active hostilities may unravel if nature of conflicts change (e.g. discrete wars change to war on terror) Question #2: What process is due a citizen who contests his “enemy combatant” status? No one argues that writ has been suspended ? question is what type of review is an enemy combatant entitled to? Gov’t proposals: No judicial review over individual process ? only review whether legal authorization exists for broader detention scheme “Some evidence” standard: court assumes accuracy of articulated basis for detention, and assess only whether that basis was sufficient SCOTUS plurality: highlight legitimate concerns, but too extreme Balancing test: weigh private interests against gov’t interest ? unclear what process is actually due: ? must receive notice of factual basis for detention and be given fair oppty to rebut that basis before neutral decisionmaker O’Connor leaves open possibility that a military tribunal can serve as the neutral decisionmaker, rather than an Art. III court Role of court: O’Connor makes clear that SoP requires that courts still play a role in the detention of enemy combatants ? war is not a blank check to prez. Rasul: SCOTUS finds that non-citizens detained at Guantanamo can file for statutory habeas ? USA controls Guantanamo and US courts have exclusive jurisdiction over it (sovereignty doesn’t matter) Conditions for asserting statutory habeas corpus: (1) citizen; or (2) under jurisdiction of the court Detainee Treatment Act of 2005: Protects all prisoners from inhumane treatment Strips courts of habeas jx for aliens detained at Guantanamo ? places exclusive appellate jx from CSRTS or military commission in DC Cir. Hamdan [Supp. 87]: important for finding that SCOTUS still had habeas jx. over pending claims, and that military tribunals set up to try detainees at Guantanamo were unconst. FACTS: alien detainee at Guantanamo charged w/ conspiracy files habeas and being tried by military tribunal (CSRT affirmed enemy combatant status) Question #1: can SCOTUS hear the case after DTA apparently strips it of habeas jurisdiction? ? SCOTUS: yes Statutory interpretation: DTA doesn’t explicitly make section stripping courts of habeas applicable to pending cases, while other provisions are ? therefore, SCOTUS has jx. over pending cases like Hamdan Const? Marbury: Congress can strip SCOTUS of appellate jx. w/o adding to its original jx. Question #2: are the “military commissions” a constitutional exercise of executive authority? ? SCOTUS: no DTA, AUMF, and UCMJ do not permit these tribunals ? they merely acknowledge prez. authority to establish them when authorized (tautology), rather than authorizing them UCMJ prohibits these tribunals ? military tribunals must be consistent w/ UCMJ, laws of war (e.g. Geneva Conventions), and be uniform insofar as practicable Benchmark for consistency: court-martial, not civilian courts ? SCOTUS finds not consistent; Court-martial Bush’s Military Tribunals Presiding officer must be military judge Presiding officer must be military lawyer 5-member court required 3-member court sufficient Evidentiary standards: Federal Rules of Evidence Relaxed evidentiary standards (hearsay, unsworn declarations, coerced statements) SCOTUS reads UCMJ as requiring consistency w/ Geneva’s requirement that he be tried by “regularly constituted court” ? tribunals are not such court How does this become a constitutional case, as opposed to statutory interpretation of UCMJ? ? fact that Congress has placed limits on exec. power over detention brings this into Youngstown Category #3 analysis ? means that Congress may pass laws constraining executive’s conduct of warfare and foreign policy Breyer’s concurrence: basically invites Congress to give prez. authority to create these military tribunals Military Commissions Act of 2006: takes Breyer up on his offer and authorizes establishment of military tribunals, making any future cases Youngstown Category #1 cases Authorizes prez. to set up military tribunals to try (unlawful) alien enemy combatants, and explicitly excludes certain UCMJ procedures Strips courts of jx. over habeas petitions filed by alien detainee who has been determined to have been properly detained as an enemy combatant, or is awaiting such determination Except for DTA (giving DC Cir appellate jx. over CSRT), strips courts of jx. to hear any other detention-related challenge from alien determine to have been properly detained as enemy combatant, or awaiting Explicitly makes act applicable also to pending cases Boumediene [Supp. 62] FACTS: alien detainees at Guantanamo determined by CSRT to be enemy combatants file habeas in DC Cir., which says MCA stripped it of habeas jx. Question: does constitutional habeas apply to aliens? ? SCOTUS: yes Congress did not formally suspend writ through MCA/DTA ? accordingly, possible that alien detainees held in Guantanamo (technically not part of USA) can invoke habeas Historical modality: Kennedy says that Guantanamo situation is so unique, historical modality is indeterminate Structural modality: even if USA isn’t sovereign over Guantanamo, it obviously controls it ? habeas would thus apply to Guantanamo (see Rasul’s similar reasoning re: statutory habeas) SoP: political branches can’t just turn const. on and off at will, i.e. by giving up formal sovereignty over Guantanamo and thus precluding the extension of habeas there 3-part test for getting habeas: Citizenship and status of detainee, and adequacy of process through which that status determination was made Detainees not USA citizens, but they do deny “enemy combatant” status ? procedural mechanisms of CSRT fall far short of those that would eliminate need for habeas review Nature of the sites where apprehension and then detention took place Guantanamo is under control of USA Practical obstacles inherent in resolving detainee’s entitlement to the writ Military mission at Guantanamo would not be undermined by habeas review Dissent: bait-and-switch: Breyer invited Congress to set up these tribunals, and now SCOTUS is saying they still aren’t good enough to foreclose habeas jx. Obama decides to close Guantanamo and review detention policies/specific cases Fourteenth Amendment Different conceptions of race and E.P. consequences Status race: marker of social status, particularly white supremacy E.P. consequences: rejected as invidious Formal race: bloodlines/skin color E.P. consequences: “color-blind,” “anti-classification” principle: race is only skin deep Historical race: creates difference (only) through contingent historical practice (i.e. racial differences not hard-wired into us) E.P. consequences: “anti-subordination” principle: remedial jurisprudence Culture race: culture, community, consciousness ? more celebratory of race E.P. consequences: “diversity” principle: pluralist jurisprudence (e.g. affirmative action is OK b/c it doesn’t remedy past wrongs, but adds diversity to learning experience) Categories of Rights Civil: property, sue, contract, travel Political: vote, hold office Social: associate, marry Introduction to Equal Protection Clause Strauder [CB 351]: important for: (1) distinction btw visions of race/E.P. consequences; (2) categories of rights (civil-political) FACTS: Strauder (black) convicted of murder by state court jury from which blacks were statutorily excluded ? Strauder successfully challenges jury statute as violation of Equal Protection HOLDING: E.P. guarantees that juries be selected without consideration of race Two rights at stake and two different visions of race: Right of ?: fear that racial prejudices will affect juries and deny ? equal protection in that he won’t enjoy full protection of a fair jury that other (non-minorities) enjoy Race matters: anti-subordination principle Right of jurors: violation of E.P. if otherwise qualified jurors are excluded solely b/c of race Race shouldn’t matter: anti-classification principle “Civil” versus “political” rights: dissent says 14th Amdt. protects only civil rights ? political rights (those arising from form of gov’t and its administration, e.g. jury trial) aren’t protected and are subject to regulation by states Majority doesn’t really address this distinction “Friendly” legislation: court says E.P. protects minorities from “unfriendly” legislation based on race ? does that mean “friendly” (e.g. affirmative action) legislation is OK? 14th Amdt. should be construed liberally, BUT only to carry out its intent Limitations on 14th Amdt.: court says it wasn’t meant to cover, e.g., women (state may exclude jurors based on sex, property ownership, age, education) ? amdt. was only meant to cover race Privileges or Immunities Clause Slaughterhouse Cases [CB 320] FACTS: Invoking 13th and 14th Amdts., butchers challenge state law granting monopoly to Slaughter-House Co. over all butchering done in New Orleans ? SCOTUS upholds the law HOLDING: most important: SCOTUS narrowly reads P or I clause: only protects privileges and immunities of citizenship of the United States, not citizenship of the states Narrow reading of P or I clause: Based on distinction btw citizens of United States as such and citizens of states Distinguishes btw P or I (14th Amdt.; narrow; applies against fed. gov’t) and P & I (Art. IV, Sec. 2; more robust, including right to pursue a calling [Corfield]; applies against state gov’t) What does P or I protect? Habeas corpus; protection on high seas; protection in foreign countries; rights secured by treaties ? NOTE: doesn’t include right to vote (which is why we needed suffrage amendments) Commonality: federal-state distinction Consequence: closing off of P or I protection probably leads to substantive due process in Lochner SCOTUS says that, while the amdts. aren’t necessarily limited to blacks, protection of blacks was their overriding purpose and they should be read in this light Dissents: Fields: P or I protects unenumerated rights Bradley: P or I incorporates Bill of Rights against the states Congressional Power Under 14th (and 13th) Amdt. Civil Rights Cases [CB 373]: important for state action doctrine FACTS: Challenge to Civil Rights Act of 1875, prohibiting racial discrimination in access to public accommodations ? SCOTUS holds that the Act was in excess of Congress’s power under 14(5) and 13(2) 14th Amdt.: State Action Doctrine: 14(5) only gives Congress the power to enact “corrective” (as opposed to “direct” against individuals) legislation in response to state discrimination 14(1): gives individuals right of action against states for denying them equal protection ? no need to wait for any Congressional implementing legislation 14(5): only gives Congress power to “enforce” 14th Amdt. ? therefore, 14(5) is limited by 14(1)’s state action requirement Does Congress have to wait for state to actually discriminate? ? no: but there must be some colorable claim that states are going to violate 14th Amdt. Why is state action doctrine a conceptual disaster area? Line between state and private action is so murky Examples where private actor is performing a state function: (1) company town; (2) running an election Shelley [CB 383]: significantly undermines state action doctrine ? mere judicial enforcement of a private contract (racially restrictive covenant) constituted state action 13th Amdt.: limited to narrow definition of slavery and badges/incidents of slavery Rare private-private amendment: persons cannot enslave others Congressional Powers Under 13(2) and 14(5) Public Actors Private Actors Prohibition of badges and incidents of slavery 13(2) & 14(5) 13(2) Prohibition of Equal Protection violations beyond B&I of slavery 14(5) Neither NOTE: Civil Rights Act of 1875 is very similar to Civil Rights Act of 1964, which was upheld under Commerce Clause Equal Protection Creation of Separate But Equal Doctrine Plessy [CB 359]: important for upholding SBE FACTS: Plessy (1/8 black) brings E.P. challenge against his ejection from a train pursuant to state law requiring SBE accommodation for whites and minorities ? SCOTUS says SBE is not a violation of EP Whiteness as a form of “property”: People benefit from having reputation of being white Does this mean you have a takings issue if you’re misclassified by conductor? Category of right affected: Majority: social right (maybe not protected by 14th Amdt.) ? right to associate Thinks civil/political rights are not affected by SBE Consistent w/ Strauder: statute in Strauder explicitly excluded blacks from juries ? statute in Plessy is facially netural Dissent: civil right (def. protected by 14th Amdt.) ? right to travel Similarities btw majority and Harlan’s dissent? Both believe in white supremacy ? almost as if Harlan is saying, “Don’t worry, we don’t need SBE in order to maintain white supremacy” Road to Brown NAACP: major engine of civil rights litigation Equalization cases: litigation strategy to first accept SBE, but keep bringing cases to enforce it ? eventually, SBE will collapse from its own weight (b/c you can never make everything truly equal) Missouri ex rel. Gaines: state law school claims that blacks can attend law school in adjacent state ? SBE not satisfied Sweatt: state hastily constructs black law school meant to mimic current law school ? SBE not satisfied McLaurin: separate sections for blacks in classroom, library, cafeteria ? SBE not satisfied Dismantling SBE Brown [CB 898] FACTS: black kids challenge SBE in public schools as violation of EP SCOTUS asks three questions, answered as below: NAACP W. Va. Framer’s direct intent Fears of integration expressed in floor debates, but not quashed Same 39th Congress that proposes 14th Amdt. votes out funds to black schools Framers’ “springing” intent [intentionalist & ethical modalities] 14th Amdt. stated in broad terms (Strauder: terms are as comprehensive as possible) As the courts have repeatedly demonstrated, Framers’ intent has not been interpreted to permit desegregation Judicial power independent of framers’ intent Judiciary has already required de facto desegregation Argument for repose: we’ve come so far, everything will fall apart if we move too fast Structure of the opinion: Dismisses historical evidence as inconclusive Describes cases that have chipped away at SBE States importance of education Cites to contemporary sociological evidence (doll studies) Controversial: should SCOTUS have relied on psychological studies? Judges not experts in sociology, and can’t judge credibility of studies Holds that SBE education facilities are inherently unequal Is separate inherently unequal? Anti-classification: yes ? differences are only skin-deep Anti-subordination: maybe not ? only unequal if it subordinates minorities VMI: Ginsburg suggests that it may be const. to have a SBE school for women ? empowers women Similarly situated: under EP, comparators are similarly situated people, e.g. OK to have school for the blind ? not quite SBE Defers statement of remedy Bell’s criticism: Brown makes inequalities less transparent ? SBE makes inequalities more apparent Bolling [CB 913] FACTS: 5th Amdt. Due Process challenge to school segregation in DC Reverse incorporation: SCOTUS gives an equal protection gloss to 5th Amdt. Due Process ? legitimate? Can’t say that 5th Amdt. framers intended to incorporate 14th Amdt. Structural: SCOTUS makes a structural rather than intentionalist argument ? if we’re going to hold states to this standard (Brown), we have to hold fed. gov’t to at least same standard Impact of Brown? Not much: nothing really happened on the ground ? real engine of change was subsequent Civil Rights Act of 1964 A lot: Brown was integral to the passage of Civil Rights Act Scrutiny Matrices Scrutiny Classifications by Statute Under Current Equal Protection Doctrine Heightened Scrutiny Facially discriminatory law (Strauder, Loving) Facially neutral law administered in discriminatory manner (Yick Wo) Facially neutral law passed w/ discriminatory intent (pretextual law) (Hunter) ? court tries to pierce the veil Rational Basis Facially neutral law passed w/o discriminatory intent (as defined by court: mere knowledge of disparate impact is not enough) that has a disparate impact (Davis) Scrutiny Classifications by Subject Matter Under Current Equal Protection Doctrine Strict Scrutiny: Means: “narrowly tailored to…” ? CLASSIC ANALYSIS: not be under- or over-inclusive Ends: “…a compelling governmental interest” Race (Korematsu); National origin (Oyama); Alienage (Graham) ? exhaustive list NOTE: political function exception Intermediate Scrutiny: Means: “substantially related to… Ends: “…an important governmental interest” Sex (Craig v. Boren) [w/ bite? (VMI)]; Non-marital parentage (Timble) ? exhaustive list Rational Basis “with bite”: Means: “rationally related to…” Ends: “…a legitimate governmental interest” Disability (Cleburne); Sexual orientation (Romer) ? just examples; may be more Rational Basis: Means: “rationally related to…” Ends: “…a legitimate governmental interest” Everything else, incl. age; opticians (Lee Optical) Strict Scrutiny Korematsu: racial classifications immediately suspect and subject to most rigid scrutiny Loving [CB 959]: important for: (1) modern strict scrutiny standard; (2) intertwining of equality (EP) and liberty (Due Process) FACTS: inter-racial married couple challenges state law prohibiting inter-racial marriage ? SCOTUS finds statute in violation of EP State’s equal application argument: statute is applied equally to whites and non-whites SCOTUS rejects, saying statute is about white supremacy: redefines statute as forbidding blacks from marrying whites, as opposed to forbidding interracial marriage in general ? whites can do something (marry whites) that blacks cannot, and vice versa Strict scrutiny standard: necessary to the accomplishment of some permissible state objective, independent of racial discrimination Anti-classification: this is just an invidious racial classification ? statute discriminates based solely on race Anti-subordination: statute is a measure of White Supremacy ? helps maintain who is black and who is white Due Process: SCOTUS also says that statute deprives Lovings of their vital personal and civil right of the freedom to marry ? why did SCOTUS also decide on Due Process? Shoring up Bolling: since Bolling was a 5th Amdt. case (i.e. no EP clause) Shoring up substantive due process Equality/Liberty Matrix Rights-Based Strict Scrutiny (Liberty) Rights-Based Rational Basis Review (Liberty) Classification-Based Strict Scrutiny (Equality) Law barring marriage on basis of race Law barring welfare entitlement on basis of race Classification-Based Rational Basis Review (Equality) Law barring marriage on basis of age Law barring welfare entitlement on basis of age Why might we want to change strict scrutiny into a per se rule of invalidity? Tie yourself to the mast ? really prevent racial discrimination (e.g. avoid Korematsu situation) Grutter [CB 1120]: SCOTUS finds that affirmative action program survives strict scrutiny Recent developments in strict scrutiny Johnson [CB 991]: strict scrutiny applies to race-based cell assignment program Morales [CB 999]: strict scrutiny does not apply to census questions soliciting race-based identification Odd? This is a gov’t document that classifies people according to race, so you’d think strict scrutiny would apply ? BUT standard of review seems to follow legitimacy of gov’t activity, and just trying to count how many races we have is legitimate Brown v. Oneonta [CB 1004]: strict scrutiny does not apply to police use of racial suspect descriptions to conduct race-based “sweeps” Similar reasoning to Morales: not the state the produced the racial distinction, and this is a legitimate gov’t activity Grutter [CB 1120]: affirmative action survives strict scrutiny What we gain: no more muddled cases like Morales and Oneonta trying to contort their way out of strict scrutiny What we lose: strict scrutiny begins to lose its bite How do we decide who gets strict scrutiny? Carolene test (discrete, insular minority); or Bowen test (NOW DOMINANT) [CB 1524] History of discrimination Obvious, immutable or distinguishing characteristics Political powerlessness Disparate Impact Constitutional versus Statutory Treatment of Disparate Impact Constitutional: disparate impact, not matter how great, isn’t enough for strict scrutiny ? only relevant if probative of intent “Intent”: purposeful (Davis) ? “b/c of,” not “in spite of” (Feeney) Statutory: Title VII is more protective ? employer can only defend against disparate impact w/ biz. necessity Rationale for different treatment: Title VII is more limited in scope, so court is more willing to go deeper in protection Griggs: Title VII ? sometimes you have to treat people differently in order to treat them equally Davis: Equal Protection ? disparate impact isn’t enough; makes constitutional question turn on intent Constitutional Definition of “Intent”: “Puposeful” (Davis) ? Mere knowledge of discriminatory effect is not enough: action must be taken “b/c of,” not “in spite of,” discriminatory effect (Feeney) Arlington Heights Factors [CB 1039]: gives evidentiary bases for Davis Impact of the official action Historical background of the decision Sequence of events leading up to the challenged decision Departures from normal procedural sequence Substantive departures where the factors usually considered strongly favor a decision contrary to the one reached Legislative or administrative history Hunter [CB 1040]: even if racial discrimination is shown to have been a “substantial” or “motivating” factor behind enactment of law, burden shifts to gov’t to show that the law would have been enacted otherwise Criticism and alternatives [CB 1035]: Implicit biases: people often make decisions based on race w/o realizing it, making it difficult to prove intent ? question should be whether race “made a difference” in the allegedly-discriminatory action Cultural meaning: the cultural meaning of an action is the best proxy for unconscious racism (e.g. what building a wall btw black and white nghbds says) ? this also helps support affirmative action programs (meaning: not to discriminate against whites, but to ameliorate wrongs against blacks) Affirmative Action Bakke [CB 1072]: highly fractured court, w/ no plurality (Powell’s sole opinion seen as the law at that time) ? important for: (1) saying that affirmative action isn’t always unconstitutional; (2) accepting diversity as primary compelling interest FACTS: state school’s racial quota program challenged as violation of Equal Protection ? Powell’s opinion splits the difference, saying this program is invalid, but not all race-based programs are invalid Scrutiny: Powell, writing for himself, applies strict scrutiny ? Brennan, dissenting for 4 justices, applies intermediate scrutiny Powell’s Five Rationales for Affirmative Action Racial balancing ? categorically rejected (too close to quotas) Remedying past discrimination by state actors ? accepted, but discrimination must have come from same state actor that is promulgating remedy Remedying societal discrimination ? rejected Promoting health-care delivery in minority communities ? maybe OK, but disappears as a potential rationale Diversity ? accepted NOTE: Powell, joined by 4 otherwise-dissenters, says that lower court erred in saying that affirmative action can never be constitutional ? makes important Powell’s praise of Harvard’s race-plus program (blacks aren’t considered in isolation from whites, but race is a “plus”) Fullilove [CB 1078]: using unarticulated scrutiny, SCOTUS upholds federal MBE law as a reasonable reaction to history of racial prejudice in procurement practices ? example of how SCOTUS initially gave more deference to feds than states Wygant [CB 1080]: using strict scrutiny, SCOTUS rejects school’s policy to first fire non-minority teachers, saying: (1) it didn’t further compelling state interest (rejects minorities as role-modeling rationale); and (2) even if it did further interest of remedying past discrimination, it wasn’t narrowly tailored (firing too burdensome to be borne by non-minorities) Croson [CB 1081]: important for narrowing what constitutes past dx. (e.g. dx. in that city and in that industry) FACTS: city’s MBE policy to require city contractors to subcontract at least 30% to MBEs challenged under equal protection ? SCOTUS invalidates NOTE: the opinion re: application of standard speaks for the court, but the opinion re: laying out the standard doesn’t even get plurality Not in furtherance of compelling interest ? this isn’t remedying past discrimination in city’s construction industry (i.e. not remedial) Ordinance declares itself to be remedial ? SCOTUS: not enough Past dx in construction industry ? SCOTUS: no real evidence MBEs receive 0.67% of contracts even though minorities constitute 50% of population ? SCOTUS: what’s really relevant is how many minorities are qualified to do this work, and we don’t know that number Congress has said that past dx has stifled minority participation in construction ? SCOTUS: federal-state distinction matters (Congress has more power under 14(5) than states) NOTE: in Adarand, O’Connor herself says this distinction doesn’t matter Not narrowly tailored to remedying any past dx No consideration of race-neutral alternatives Quota rests on unrealistic assumption that minority % in population will translate into minority % in construction Metro Broadcasting FACTS: challenge to federal affirmative action program ? SCOTUS upholds Scrutiny: SCOTUS applies intermediate scrutiny on the grounds that program was example of federal, “benign” race-dx. (good to have diversity of viewpoints in broadcasting) ? OVERRULED BY ADARAND Adarand [CB 1109]: important for clearing up muddled doctrine by applying strict scrutiny to affirmative action programs, no matter what FACTS: challenge to fed. program in contracting ? SCOTUS remands Scrutiny: SCOTUS says strict scrutiny applies, no matter what ? BUT explicitly rejects “strict in theory, fatal in fact” Rejects “benign” racial classification distinction (Metro) Rejects fed-state distinction (Croson) SCOTUS lays down three principles guiding gov’t racial classification: Skepticism: SCOTUS will be skeptical of any racial preferences Consistency: same standards for whites and minorities Congruence: both fed. and state treated the same Scalia and Thomas concurrences: racial preferences never appropriate way to remedy past dx., and affirmative action smacks of paternalism Stevens’s dissent: there is a critical difference btw state action that imposes burdens on disfavored minority and state action that benefits minority “in spite of” adverse effects on majority Grutter [CB 1120]: important for: (1) upholding affirmative action program under strict scrutiny; (2) affirming that (educational) diversity is a compelling interest (not just remedying past dx.) FACTS: challenge to state school’s admissions policy of taking account of race ? SCOTUS upholds Compelling gov’t interest: education diversity compelling b/c individuals need exposure to diversity in order to succeed in global marketplace ? limiting to educational diversity (universities are special) Rehnquist’s dissent: why do you just care about racial diversity? O’Connor’s answer: race is unique b/c of nation’s history ? BUT this sounds like remedial through the back door after Adarand rejects notion that “benign” racial classifications get less than strict scrutiny Narrowly tailored: race is only a plus-factor, and school considered race-neutral alts. ? school isn’t imposing a quota, but making individualized determinations and trying to reach critical mass of minorities Rehnquist’s dissent: critical mass is just a veil ? this is really about a quota, and school was very cognizant about # of minorities it was admitting NOTE companion case: Gratz: struck down an affirmative action program at another school b/c it assigned extra points to racial groups: this was placing too much formal emphasis on race ? basically SCOTUS is saying that you have to be more circumspect about considering race Sex Discrimination Big question in sex discrimination cases: what is the line between nature and culture? ? How skeptical should we be when court justifies separate treatment as based on nature? Post-Reconstruction Amdts: SCOTUS largely resists women’s rights Separate spheres: romantic paternalism idea that law of nature made women (home) different from men (work) Bradwell [CB 1180]: statute denying women right to practice law was a rational discrimination btw the sexes and did not violate 14th Amdt. ? “paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” Example of how intentionalist modality would lead to narrow interpretation of 14th Amdt. (not meant to change gender roles) and textualist would lead to broader interpretation (text of 14th Amdt., unlike 15th, is framed in high level of generality that makes no gender distinctions) Minor [CB 1180]: no right to vote under P or I Romantic paternalism: not quite separate spheres (b/c women can work), but still says women need protection Muller [CB 1181]: state may regulate women’s employment in ways it cannot regulate men’s ? women are the weaker sex and need to be protected Aberration: Adkins [CB 1181]: minimum wage law for women violated liberty of contract ? reads 19th Amdt. as embodying a more general norm of gender equality that undermined notions of special protections for women West Coast Hotel [CB 1181]: upheld women’s minimum wage law ? overruled Adkins as relic of Lochner jurisprudence Goesaert [CB 1182]: using rational basis, upheld law forbidding women bartenders unless they were wife or daughter of male owner ? rational distinction btw groups of women b/c state could assume that women working for husband/father were better protected Overview of Modern Evolution of Scrutiny: Reed [CB 1183]: rational basis w/ bite: SCOTUS invalidates law preferring men over women as estate administrators Frontiero [CB 1188]: strict scrutiny: plurality applies strict scrutiny ? note that a majority NEVER applies strict scrutiny Craig [CB 1214]: intermediate scrutiny: court invalidated law allowing younger girls to buy alcohol (court clearly worried about disadvantaging men vis-à-vis women) VMI [CB 1229]: intermediate scrutiny w/ bite: substantially related to important govt interest which is genuine, not hypothesized/invented post hoc, and not reliant on overbroad generalizations of gender talents, capacities, or preferences Frontiero [CB 1188]: important for: (1) equating women w/ blacks; (2) adopting strict scrutiny (though only plurality did) FACTS: Due Process challenge to statute that lets servicemen always claim wives as dependents, but only lets servicewomen claim husbands as dependents if he is dependent for over ½ of his support ? SCOTUS invalidates (w/o majority opinion) Powell’s plurality: analogizing to race, applies strict scrutiny Each had long hx of discrimination: Romantic paternalism put women not on a pedestal, but in a cage Each were burdened for immutable characteristics which are highly visible, increasing possibility of discrimination Each were victims of stereotyping, meaning they were judged by immutable characteristics that had nothing to do w/ actual abilities Each were politically powerless If women constitute majority of population, how can they be politically powerless? ? Discrete and insular: maybe an inadequate proxy for what we want to protect, OR maybe they are discrete and insular via relegation to home Remember Bowen’s 3-part test is prevailing test now Brennan’s dissent: disagrees w/ strict scrutiny ? wants to defer to pending ERA: don’t disrupt political process Criticism: should social movement behind ERA be enough to merit adoption of strict scrutiny? Was Brennan actually being counter-majoritarian? Majority of states approved ERA Parade of Male Plaintiffs Litigation Strategy: Ginsburg (while at ACLU) adopted strategy of brining male plaintiffs to challenge facial sex-discrimination that appeared to burden men rather than women Intermediate Scrutiny and “Real Differences” Doctrine VMI [CB 1229]: important for: (1) apparently establishing intermediate scrutiny w/ bite; (2) affirming real differences doctrine, meaning SBE might be OK re: gender FACTS: Equal Protection challenge to force VMI, intensive all-male military school meant to produce “citizen soldiers,” to admit women ? SCOTUS: denial of this unique educational opportunity to women for no legitimate reason violates E.P. Scrutiny: intermediate scrutiny ? does SCOTUS add extra bite? Exceedingly persuasive: does Ginsburg say that it must meet intermediate scrutiny (substantially related to important gov’t interest) AND be exceedingly persuasive? Rehnquist’s concurrence: “exceedingly persuasive” isn’t part of the test, but just a description of how hard the test is to meet Yoshino: this isn’t the strongest argument that VMI ratchets up intermediate scrutiny Stringent tailoring requirement: Ginsburg says you can’t look at average woman, but have to ask whether there is one woman who could make it through adversative method (and, if so, can’t exclude women) ? tailoring requirement so stringent that it’s impossible to meet Yoshino: strongest ratcheting interpretation Court’s rejection of VMI’s justifications: Single-sex institution is important for offering diversity of educational opportunities in the state ? COURT: doesn’t reject this as an interest, but finds it is just a pretext considering state’s long hx. of using single-sex education to keep women out of higher education Rehnquist’s concurrence: agrees that state doesn’t really seem interested in offering diversity, but thinks Ginsburg looked too far back in hx. ? should only have started at point when SCOTUS first held that single-sex education was questionable under E.P. Admitting women will require VMI to change its unique adversative system ? SCOTUS: even though some women might not make it through system, and some accommodations will have to be made, you can’t say that NO woman could make it through Real Differences: Ginsburg says there are gender differences, but they should be cause for celebration, not denigration ? anti-subordination principles, not anti-classification Suggests that SBE not inherently unconst. for gender ? SCOTUS backing off from racial-gender comparison Origins of Real Differences Doctrine Sonoma County: using intermediate scrutiny, plurality upholds statutory rape law that punishes man but not woman ? real difference is that women by nature will be punished w/ pregnancy, so state can add missing punishment component for men ? men and women must be treated differently in order to make them equal Nguyen [CB 1296]: using intermediate scrutiny, SCOTUS upholds law automatically granting citizenship to love child of alien father and citizen mother, but not to love child of alien mother and citizen father Modern Due Process Unenumerated Rights Drawing Some Degree of Heightened Scrutiny Right of privacy Marriage Use contraception Abortion Read obscene material Keep extended family together Parental control of children Intimate sexual conduct Right to vote Right to travel Right to refuse medical treatment Protection of Non-Economic Unenumerated Rights During Lochner Era Meyer [CB 1340]: law prohibits teaching foreign language to kids under 8 ? SCOTUS invalidates as unreasonable infringement of 14th Amdt. liberty to raise children (rights recognized as “essential to the orderly pursuit of happiness by free men”) Pierce [CB 1340]: law requires kids to attend public, as opposed to private, schools ? SCOTUS invalidates as unreasonable infringement of 14th Amdt. liberty of parents to direct upbringing and education of kids Birth of Modern Due Process Problem: how do you protect unenumerated rights w/o falling into repudiated Lochner doctrine? NOTE: not all unenumerated rights are fundamental rights deserving of heightened scrutiny Major unenumerated right: right of privacy Zonal privacy: space/place (e.g. home) Relational privacy: intimate relationships Decisional privacy: personal autonomy to make decisions intimate to personhood Penumbra theory: textually enumerated rights cast shadows of peripheral rights Griswold [CB 1342]: SCOTUS invalidates law banning use of contraception as violation of right of privacy ? finds right of privacy in shadow of other rights (right to assemble/associate, right against quartering of soldiers, right against search/seizure, right against self-incrimination) Criticism: relies on incorporation of Bill of Rights against states Harlan’s non-textual approach [Griswold]: Rejects notion that 14th Amdt. Due Process is limited by Bill of Rights ? not a “series of isolated points” Look to values implicit in concept of ordered liberty Look to traditions Evolution of Fundamental Liberty Definitions Bowers: deeply rooted in nation’s history and traditions, OR implicit in concept of ordered liberty Michael H.: Scalia/Rhenquist test: define liberty at most specific level for which you can find a tradition going either way Glucksberg: (1) deeply rooted in nation’s history and traditions, AND implicit in concept of order liberty; (2) define right as specifically as possible Lawrence: follows Glucksberg in focusing on history (but not that long of history: 50 years), BUT last paragraph implies that liberty interests evolve over time Abortion and Stare Decisis Roe v. Wade [CB 1388] FACTS: state statute prohibits abortion except for purposes of saving mother’s life ? SCOTUS invalidates as violation of Due Process and imposes trimester framework Doctrinal grounds: SCOTUS relies on 14th Amdt. Due Process, as well as cite other cases that seem to recognize extension of right of privacy (Loving, Pierce, Meyer, Eisenstadt) ? seems to abandon penumbra Type of privacy: decisional privacy (BUT in consultation w/ doctor) History: long historical analysis to show that anti-abortion is not deeply rooted in nation’s history (ethical modality: ethos has not been as anti-abortion is it may seem now) ? BUT how does this get us to saying that right to abortion is deeply rooted? Levels of generality: fits abortion in under general right of privacy ? would this work after Glucksberg? Scrutiny: since fundamental right of privacy, strict scrutiny State interests: Discourage illicit sexual conduct ? SCOTUS rejects Protect woman’s life ? SCOTUS accepts Protect prenatal life ? SCOTUS accepts as protecting potential of life (fetus not a “person” for purposes of 14th Amdt., based on intratextual interpretation of “person” in const.) Narrowly tailored: SCOTUS prescribes trimester framework Until end of first trimester: woman and doctor get to make decision ? safe harbor for woman (drops out in Casey) After first trimester: state may reasonably regulate to protect woman’s health Until this point, risks of mortality are low At point of viability (beginning of third trimester): state may also regulate (or even proscribe) abortion to protect potential of life, except to preserve woman’s life Was Roe rightly decided? On collision course w/ itself: as medicine advances, abortions will be safer later into pregnancy, but viability will also occur earlier in pregnancy ? what happens when these two points meet? (O’Connor) Potential for human life: there is also potential, not just after viability (O’Connor) Roe goes too far: judicial legislation: (Rehnquist’s dissent) Roe doesn’t go far enough: avoids hard questions (e.g. when does life begin?) Casey [CB 1424]: important for: (1) reaffirming Roe (sort of); (2) rejecting trimester framework (and strict scrutiny) in favor of weaker undue burden test; (3) stare decisis factors FACTS: law regulating abortion requires women to give informed consent (and be first given certain specific info), obtain informed consent of a parent (if a minor), and certify that she has notified husband (if married), with exceptions for “medical emergency” ? SCOTUS (supposedly) reaffirms Roe, but only invalidates marital notice provision Summary of opinions: Joint Opinion (O’Connor, Souter, Kennedy) Stevens opinion Blackmun opinion Rehnquist opinion (White, Scalia, Thomas) Result Woman must give informed consent 24 hours prior to abortion Valid Invalid (though information about risks of abortion valid) Invalid Valid Valid (7-2) Minors must get informed consent of parent Valid Invalid Invalid Valid Valid (7-2) Married woman must notify spouses Invalid Invalid Invalid Valid Invalid (5-4) Requirements above waive for medical emergency Valid Valid Invalid Valid Valid (8-1) Reporting requirement Valid Valid Invalid Valid Valid (8-1) Decisional privacy: right of woman to define her own concept of personhood Abortion as Equal Protection? ? Casey talks about how pregnancy is uniquely woman’s issue, and they shouldn’t be placed in a box by state/man (e.g. rejecting marital notice provision): sounds like equality/anti-subordination principle How faithful is Casey to Roe? Reaffirms Roe’s “essential” holding: Right of woman to have abortion w/o undue interference by state before viability State has power to restrict abortions after viability, so long as it makes exceptions for woman’s health State has legitimate interests from outset of pregnancy in protecting health of woman and life of fetus BUT rejects trimester framework in favor of “undue burden” Criticism of trimester: collision course w/ itself Undue burden test: Casey draws one line at viability Pre-viability: state cannot impose undue burden Post-viability: state can limit or even proscribe abortion, w/ woman’s health exception Scrutiny: SCOTUS doesn’t use strict scrutiny, so appears to reject Roe’s argument that abortion is fundamental right (within privacy) Blackmun’s opinion: should have applied strict scrutiny Stare Decisis Factors (Casey) Casey Factors: prudential and pragmatic Workability: workability of const. rule articulated in challenged precedent ? common example: rules that are too vague (e.g. “traditional” gov’t functions) Reliance: structuring of lives based on rule Extension of reliance from traditional commercial context Suggests precedents should be overturned quickly, conflicting w/ anti-vacillation argument Change in doctrine: bare remnant of abandoned doctrine ? suggests that precedents can be gradually eroded Change in fact, or changed perception of constant facts Justifies overruling Lochner and Plessy Criticism: just a way for SCOTUS to do what it wants ? or, SCOTUS is institutionally incompetent to judge society’s changed perceptions of facts Two instances when SCOTUS unlikely to overrule precedent: Want to avoid vacillating too much In order not to undermine legitimacy of court, shouldn’t respond to public pressure by overruling Hotly contested by Scalia: SCOTUS robbed of legitimacy more when it doesn’t repudiate largely rejected rule (e.g. Dred Scott) ? blames SCOTUS itself for engendering political force, since it engages in expansive judicial legislation Modern Due Process and Equal Protection: Gay Rights Bowers (1986) [CB 1466]: FACTS: man brings Due Process challenge to conviction under anti-sodomy statute for having oral sex w/ another man in his bedroom ? SCOTUS upholds statute Two definitions of fundamental rights: Implicit in the concept of ordered liberty Deeply rooted in nation’s history and traditions Limited question: even though statute bans sodomy by everyone, SCOTUS only looks at question as applied to consensual gay sodomy Privacy: court’s decision may turn on which conception of privacy: Relational (majority): this isn’t like previous privacy cases, which focused on family relationships Decisional and Zonal (Blackmun’s dissent): statute violates right to control nature of intimate rltshps, and privacy in home Rationality: even though this isn’t fundamental right, still must get rational basis review ? statute reflects a morality decision, which isn’t irrational (many laws make moral judgments) Harm of unenforced anti-sodomy statutes: Ripple effects into other areas of law ? e.g. child custody: since you’re gay, you’re probably engaging in illegal activity (i.e. gay sex), so you’re not going to get custody Stigmatic/normative harm If you can criminalize this conduct, prevents gays from getting heightened scrutiny Strategy: why push Due Process instead of E.P.? Privacy seen as less incendiary ? you don’t have to talk about treating gays as equals Romer (1996) [CB 1505] FACTS: E.P. challenge to CO referendum forbidding any gov’t from making gay “orientation, conduct, practices, rltshps” a basis for protected status/claim of discrimination SCOTUS: statute is both too narrow and too broad: Narrow: singles out gays: at minimum prevents gays from getting heightened scrutiny, and prohibits gay-specific discrimination laws Broad: withdraws protections across the board: may preclude someone from determining that decisions based on you being gay are arbitrary under general anti-discrimination laws Does statute treat gays worse, or simply deny them special protections? Majority: treats gays worse ? even if they are still protected under general protection laws, the fact that they are denied a way of getting specific protection that other groups enjoy (i.e. gays have to seek a change to state const. – remember that statute was passed b/c gays were getting special laws passed in municipalities) Scalia’s dissent: this is about denying gays special rights ? fact that gays have to go through different political mechanism doesn’t mean they’re denied E.P. Rational? Majority: statute is too broad to fit state’s reasons ? this is nothing but animus towards a group of people, and legislation trying to create a class (which it can’t do – Harlan’s Plessy dissent) ? never legitimate state interest to simply harm a politically unpopular group Scalia’s dissent: rational ? if it’s const. to make gay sex illegal (Bowers), then it must be const. to pass other laws not even disfavoring gays, but denying them special rights Statute might mean moral disapproval/dislike of gays, but it doesn’t constitute unconst. animosity Scrutiny: Is Romer about gays in particular, or the nature of the statute in general? ? if it’s not about gays in particular, then maybe it suggests a big change to rational basis review Structure: this is about the effect the statute would have on any particular group ? case would have come out the same if it was about gays or about ophthalmologists Scalia’s dissent: suggests that it’s hard to see from this decision why laws banning polygamy now aren’t unconst. Gays: this is a special review given to gays only ? rational basis w/ bite Scalia’s dissent: sees this as a political issue ? gays were using clout in localities to get protections, but then were overridden by larger state politics ? in actuality, gays were acting in a counter-majoritarian manner Lawrence (2003) [CB 1482] FACTS: Due Process challenge to TX law prohibiting gay sodomy ? SCOTUS overrules Bowers and finds law unconst. Liberty interest: right to privacy Decisional privacy: you get to decide how you want to structure your intimate rltshps Zonal: this is stuff done in the privacy of your own home Fundamental right? SCOTUS never specifically says that there is a fundamental right to engage in gay sex; decision sounds like it might be rational basis review/rational basis w/ bite Historical analysis: Questions Bowers: not really clear from hx. that there are ancient roots for prohibiting and prosecuting gay sodomy Positive hx. (more recent: past 50 years): Fewer states prohibiting this conduct Int’l opinion has swung against prohibitions Eroded by Casey (liberty to make personal decisions) and Romer (protecting gays under E.P.) Reasons to overrule Bowers: No reliance on Bowers (Casey) Erosion by subsequent cases/bare remnant (Casey) Wrongly decided: Fact that majority of state traditionally viewed homosexuality as immoral is not a legitimate reason for the law Didn’t recognize the liberty interest at stake Better decided under Due Process or E.P.? Due Process: Human rights: recognizes that this is a liberty interest that connects all of us Get rid of the stigma by addressing the substantive prohibition Don’t make this about protecting certain groups, b/c then SCOTUS will tend to define groups by certain traits/activities (e.g. gays defined by sodomy) E.P.: SCOTUS should call out subordination when it sees it Privacy reinforces the closet: saying it’s OK to do this as long as you do it in private Don’t Ask/Don’t Tell [CB 1536] Speech creates rebuttable presumption that you’ve engaged in gay conduct Propensity language: makes this a really hard presumption to rebut “Propensity” suggests ban on orientation rather than conduct Witt: suggests that DADT is vulnerable after Lawrence Not just up to prez. to repeal DADT: now an exec-Congress hybrid Gay marriage State-by-state litigation Follows Loving pattern: pick and choose more hospitable states/courts and create a patchwork of supportive states, and then move to SCOTUS High bar for a strong enough patchwork: Loving: only 16 statutes left on books Lawrence: only 13 statutes left on books Why don’t opponent just go straight to SCOTUS? ? SCOTUS will deny cert. if decision has independent state law grounds, so advocates deliberately don’t raise fed. questions Difference btw civil union and marriage Baker (VT): gays must receive all material benefits of marriage, but don’t title of marriage ? civil unions enough Nancy Fraser: politics of redistribution versus politics of recognition Redistribution: about stuff Recognition: symbolic, dignity Is marriage really superior to civil unions? Marriage merged identify of woman into man Channeling: after slavery, polyamorous tradition was channeled into marriage and lost Goodridge (2003) [CB 1545] FACTS: MA court found that denying gays right to marry was unconst. under state Due Process and E.P. Rational basis review: court doesn’t reach question of heightened scrutiny b/c it finds statute fails rational basis, BUT is it really applying rational w/ bite? ? rejects all reasons offered by state Marriage is supposed to provide favorable setting for procreation Marriage isn’t about procreation but rather mutual commitment of partners This justification focuses on single trait of gay couples (can’t procreate) and denies them protection across the board Opposite-sex marriage is best environment for kids Best interests is a legitimate state interest, but it has nothing to do w/ sexual orientation of parents Banning gay marriage has no rltshp to promoting opposite-sex marriage, thereby promoting kids’ BI Banning gay marriage will be detrimental to BI of gay marriage kids Court: not recognizing gay marriage won’t save state $ Court: recognizing gay marriage won’t devalue straight marriage Is ban on gay marriage sex discrimination, or sexual orientation discrimination? Sex: just b/c you’re a man means you can’t marry a man, while a woman can (like Loving) Sexual orientation: social meaning analysis: even though statute doesn’t say anything about, this is clearly meant to apply to gay people Why might advocates want this to be about sexual orientation? ? get heightened scrutiny, which is portable Loving analogy: Loving Gay Marriage ? argues statute barring whites from marrying non-whites facially discriminates on basis of race ? argues statute barring men from marrying men facially discriminates on basis of sex State defends that both whites and non-whites are prohibited from marrying outsider of their race State defends that both women and men are prohibited from marrying someone of their own sex Court rejects state’s equal-application defense on grounds of “white supremacy” (Hypothetical) Court rejects state’s equal-application defense Modern Due Process and Privileges and Immunities Michael H. (1989) [CB 1371] FACTS: Michael, father of married woman’s daughter, wants visitation rights and raises Due Process challenge against statute that creates irrebutable presumption that child of wife living w/ husband is child of that marriage What liberty interest is Michael raising? ? Scalia offers test (which only Rehnquist joins): refer to most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified Scalia wants to ground liberty interests in “objective” evidence of hx. and cabin substantive Due Process doctrine This case: possible interests that could be asserted Parental rights of adulterous natural father ? most specific for which Scalia can find a tradition (cutting against ?) Parenthood Family rltshps Personal rltshps Emotional attachments in general NOTE: substantive Due Process claims are won or lost on levels of generality (e.g. Bowers: if SCOTUS had examined Bowers as privacy in home as opposed to homosexual sodomy, outcome might have been different) O’Connor and Kennedy concurrence: says previous decisions have not focused on most specific level of generality, and don’t want to tie themselves to doing that Stevens’ dissent: “Traditions” just as malleable as “liberty” Scalia would anchor Due Process in the past Glucksberg (1997) [CB 1579] FACTS: Due Process challenge to state ban on physician assisted suicide ? SCOTUS upholds statute New test for determining fundamental liberties Deeply rooted AND implicit in ordered liberty SCOTUS: no hx right to assisted suicide Define the right as specifically as possible SCOTUS: refuses to find this right as embedded within previously recognized rights over body (e.g. right to refuse medical treatment) Rational basis review: even though there is no fundamental liberty interest at stake, SCOTUS must still go through rational basis review ? finds it to be rational (preserve human life, study and prevent suicide, keep medical profession clean, protect vulnerable groups, slippery slope) Limiting principles: Slippery slope: afraid of slipping towards euthanasia E.P. dimension: concern for disparate impact on poor, elderly, disabled ? thinks they’re particularly vulnerable to being subtly coerced/influenced into getting assisted suicides Is Due Process the new E.P.? SCOTUS is closing down E.P.doors: No more heightened scrutiny groups No disparate impact claims Restrictions on what Congress can do under Section 5 But, SCOTUS is pushing open liberty door and doing more equality work under rubric of liberty Lawrence: Due Process right to liberty, but also element of treating gays equally Glucksberg: equality concern that certain groups are disparately impacted by assisted suicide ? NOTE: equality concerns can act as a brake as well as a goad to liberty Why is this attractive to SCOTUS? In highly pluralistic society, SCOTUS not sure how to decide which groups get what scrutiny (Scalia’s peyote case: in a country w/ so many religions, we can’t give out these exceptions to drug rules for certain religions) Saenz v. Rose: FACTS: CA has durational residency requirement that limits level fo welfare benefits ? SCOTUS strieks down under right to travel embedded in 14th Amdt. P or I Is this a renaissance of P or I, or just a blip? Blip: Path dependency Textual difference: Due Process protects “persons,” P or I protects “citizens” ? progressives are likely to resist P or I b/c they want to expand rights Enforcement of Fourteenth Amendment Katzenbach v. Morgan [CB 576]: important for being an aberrational grant of a lot of power to Congress under 14(5) ? NOTE: this is just an historical artifact FACTS: Congress passes VRA, Sec. 4(e) says no person who has completed 6th grade in Puerto Rico shall be denied right to vote b/c of inability to read/write English ? SCOTUS upholds statute as proper exercise of Congressional power under 14(5) SCOTUS precedent: Lassiter ? says literacy requirements don’t violate Sec. 1 How can Congress say the opposite under Sec. 5? Is this consistent w/ Civil Rights Cases: Congress swept too far by violating state action doctrine What is Congress’s Sec. 5 power? Two interpretations of Morgan: Morgan I: Congress is enforcing under Sec. 5 its interpretation of Sec. 1 ? it doesn’t need to peg itself to Court’s interpretation Ratchet FN: cuts back a bit on this radical grant of power to Congress ? Congress doesn’t have power to restrict/dilute SOCTUS’s Due Process or E.P. decisions Morgan II: Congress is enforcing under Sec. 5 court’s interpretation of Sec. 1, but, b/c of Necc. & Proper clause, Congress can stretch court’s core interpretation ? prevails under Boerne Corrective/prophylactic measures Boerne and its aftermath Boerne [CB 629]: new law of the land, not Morgan FACTS: Congress passes RFRA, which says that states cannot substantially burden exercise of religion, even w/ rule of general applicability, unless burden is in furtherance of compelling gov’t interest and there’s no less restrictive way to do it Run-up to RFRA: Sherbert: SCOTUS says state must make carve-outs for religion when making individualized determinations for employment benefits ? balancing test: substantial burden versus compelling gov’t interest Smith: pushes back on Sherbert, only giving rational basis review to a facially neutral, non-animus statute RFRA: Congress upset about less protective Smith, and wants to restore Sherbert doctrine ? Congress says it is providing religious protections above the floor set by Smith Modified Morgan II: Congress flouting what SCOTUS has said ? changing jurisprudence is not an enforcement of Sec. 1 as court has interpreted it Modifying Morgan II: shorter Congressional leash ? doesn’t have power to enforce via necc. & proper legislation, but congruent and proportional measures Morrison [CB 643] FACTS: VAWA gives victims of gender-motivated violence private COA ? SCOTUS rejects under both Commerce Clause and 14(5) Excess of Commerce Clause power ? fails Lopez test: Not economic in nature No jurisdictional element Congressional findings not sufficiently probative Link to interstate commerce is too attenuated Excess of 14(5): Sec. 1 right as defined by SCOTUS: guaranteed equal protection by the state Congruent and proportional? NO ? state action problem 14th Amendment Enforcement and Sovereign Immunity Boerne’s aftermath in sovereign immunity Most bite in sovereign immunity cases (Congress can’t claim Commerce Clause power to abrogate a state’s sovereign immunity) 11th Amdt: sovereign immunity for cases brought against a state by citizen of another state, or by citizens of foreign state Hans: reads “citizens of another state” as “citizens of any state,” saying 11th Amdt. prohibits suits against a state by its own citizens (otherwise courts would be discriminating against out-of-staters) Ex Parte Young: citizens can sue state for prospective injunctive relief, but not for damages Seminole Tribe: test for how Congress can abrogate a state’s sovereign immunity: State waives its immunity; OR Clear intent by Congress to abrogate and an action pursuant to proper (i.e. post-11th Amdt.) power Cleburne (1985) [CB 1327] FACTS: E.P. challenge to city’s denial of special-use permit for construction of home for retarded ? SCOTUS strikes down permit requirement Scrutiny: SCOTUS says it’s using rational basis, but looks like rational basis w/ bite (b/c SCOTUS strikes down the provision, and doesn’t try to imagine rationales for the legislature) Why aren’t disabled people entitled to heightened scrutiny? Do they fail Bowens test? History of discrimination: majority claims that legislation tries to deal w/ them sympathetically ? Marshall’s concurrence says hx of segregation and discrimination has been grotesque, and essentially amounted to trying to eliminate disabled people Politically powerless: disabled people have ability to get attention of lawmakers ? opposite of Frontiero, which said ERA should be a reason to give women heightened scrutiny, and pointed to fact that women aren’t represented in gov’t Immutable characteristics: this would be immutable Slippery slope: no principled way to make distinctions among disabled people ? NOTE: Congress doesn’t have to worry about principled decisions (it can do what it wants), but courts do Rationales rejected by SCOTUS: Negative attitudes of property owners Fear of harassment by students Fear that house was located on flood plain Fear about # of occupants How was reasoning different from Lee Optical? Doesn’t use one step at a time analysis ? fact that rationales are under-inclusive shouldn’t have mattered Court doesn’t imagine rationales Marshall’s concurrence: sliding scales: balancing gov’t interest against individual’s interest ? White doesn’t pick up on this: doesn’t want to endanger “fatal in fact” re: race Garrett FACTS: employees bring suit under ADA against state employers for money damages? SCOTUS upholds 11th Amdt. sovereign immunity defense Sec. 5, not Sec. 1, debate: question is whether Congress can abrogate state sovereign immunity, not whether Congress had power to enact ADA