Constitutional Law – Professor Patricia Bellia, Spring 2008ndlaw/pad/outlines2/PAD ConLawOutline... · 1 | C o n s t i t u t i o n a l L a w O u t l i n e Constitutional Law –

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Constitutional Law – Professor Patricia Bellia, Spring 2008 Methods of Constitutional Analysis:

- Text: looks at the text of the amendment- specifically at what is written to determine what is

meant (“that’s what the Constitution says)

- Original Meaning: focuses on the original meaning of the words at that time (at the time of the

framing); is a historical argument

- Original Intent: not so much the words meaning but what the framers of the constitution intended

(is problematic because we must determine who the Framers to pay attention to should be, why we

should pay attention to them, and how we go about deciding what can be proof of their intent)

- Purposive: looks to the underlying purpose of the amendment (This constitutional provision was

meant to accomplish a particular goal, and we should interpret it this way because this way best

suits the goal). Different from original meaning argument because it focuses less on what the

specific words meant at the time and more on the goal the drafters were trying to achieve.

- Structural: idea that various constitutional provisions when put together are meant to create a

certain governmental structure so you have to look at them together

- Precedent: prior case history points to a particular point

- History/Tradition: that’s the way Americans have done things for years.

Methods of Interpretation:

- Dynamism (Living Constitution)

- Originalism

Key Features of the Constitution:

- Two governments within each state. People are citizens of their state and the nation.

- Federalism- the way power is divided between state & federal governments

•••• Federal government has all the power in foreign affairs but limited power in domestic

matters.

- Separation of powers� 3 branches of government; Check & balances


1. The Federal Judicial Power

Fundamental Principles versus Express Constraints (represented in Calder v. Bull; is essentially an

argument over judicial activism versus judicial restraint)

- Fundamental Principles: focus on the ideals the government is founded on & the idea that the role

of the legislature is to enact laws that help secure liberty, protect persons and property from

violence. General principle of law & reason underlying the social compact.

- Express Constraints: focuses on the way the Constitution structure the government. Congress has

certain powers & they can only enact laws within these powers- only those laws will be

constitutionally valid. Can’t say something is unconstitutional because it transgresses natural

principles. Constitution embodies all the limits on the government there are.

a. Judicial Review (power to review legislative & executive action + state & local actions)

- Article III creates the federal judiciary and defines the scope of its powers. Creates a Supreme

Court & allows Congress to create lower federal courts� Judiciary Act of 1789: Congress creates

inferior federal courts.

- Issue is whether or not the judicial power referred to in Article III included the power to

review/nullify unconstitutional law.

•••• Should silence be interpreted as representing the understanding that the Supreme Court

has the inherent power to review the constitutionality of laws or that the Supreme Court

does not have the power to do so and should defer to the judiciary?

- Arguments for judicial review: separation of powers argument; we need an independent judiciary

in order to check that the government stays within is Constitutional limits. If the court cannot

nullify laws then we will be allowing Congress to act outside of its Constitutional limits (arguments

from Federalist # 78). (all of these arguments would have been persuasive arguments for Marshall

to use in M v. M. but he didn’t use any of them)

- Arguments against judicial review: weakness of judicial nullification � fear that the court would

be unable to nullify laws when it was necessary (some preferred congressional nullification so that

the passage of unconstitutional laws could be stopped)

- Case law has led to the principle of judicial review being clearly established as a firm part of our

system even though it’s not expressly delegated in the Constitution.

i. Marbury v. Madison (established the principle of judicial review)

- Facts: issue of commission signed by Marshall to appoint Marbury to office. Presidents change

office- From Adams to Jefferson. Madison refuses to deliver the commission. Is Marbury entitled to

his commission? Ruled against Marbury & decided the court didn’t have jurisdiction but still

decided other issues including their duty to strike down laws inconsistent with the constitution.

- Central Question in this Case: If a law is constitutionally void, are the courts bound to give it effect?

No- the Court has the power & duty to declare void a statute that conflicts with the Constitution.

Why?

•••• Role of the judiciary�� “it is emphatically the province & duty of the judicial department to

say what the law is.”

•••• Power to hear cases arising under the constitution�� this doesn’t exclude the Constitution

because it’s impossible to believe that the court is expected to deal with cases arising under

the Constitution without looking at the Constitution.

•••• Oath to uphold the Constitution�� because of their oath of office, judges would be

violating it if they upheld unconstitutional laws.

•••• Supreme Law of the land�� the Constitution & laws made in pursuance of it are the

Supreme Law of the land.


- Keep in mind that not all of Marshall’s arguments are legitimate or persuasive, may have very

easy & obvious counterarguments. He may have been making a power grab for the court at a

crucial time when the court was seen as having not much authority.

i. Fletcher v. Peck (state action) & Martin v. Hunter’s Lessee (judicial review of state

action)

- Fletcher v. Peck

•••• Facts: land speculators bribed the legislature for land & the legislature passed a law

allowing speculators the land. Land was then sold down the line. In the meantime, the

legislature turned over and new legislation was passed that repealed the land and voided

the land sales. Peck had purchased land and sold to Fletcher. Gives covenant saying the title

is not valid because it’s been interfered with. Sued Peck for breaching the title.

•••• Central Question: Constitutionality of the legislature’s repeal. (court really should have

probably stopped after establishing that the title was a contract and that contracts vest

rights)

� Said if the legislature is going to regulate itself rather than being regulated by the

courts then there are certain principles of justice the legislature must follow. In this

case, the legislature was either acting as a proper court or exerting its own will.

State courts are not only bound by the state constitution but the federal one as

well. Individuals have the right to contract freely & contracts vest certain rights.

State cannot interfere with this power to freely contract and repeal the rights

vested by a contract.

- Martin v. Hunter’s Lessee

•••• Facts: during the revolution, Virginia enacted a law that allowed the state to take loyalists

land. Martin sued saying treaties with Great Britain protected loyalists land. Virginia

Supreme Court upheld the confiscation saying that their interpretation of the treaty did not

cover the issue. US Supreme Court reversed & remanded. Virginia court said that the

Supreme Court had no authority to hear cases originating in state court.

•••• Central Question: Supreme Court says it has the power under Section 25 of the Judiciary

Act of 1789� Supreme Court can review a state court’s interpretation of a federal law

(state court was interpreting a treaty)

� Federal judicial review��if the court is not allowed to review in these cases then

there will be no federal judicial review in cases from state courts at all.

� Sovereignty��there is no more infringement on state sovereignty here than

anywhere else. There are 2 notions of sovereignty at play- Story says we must

understand the sovereignty of the people & the state argues that what is important

is the sovereignty of the state (a 10th amendment issue is a bit at play here)

� Supreme Court needs to protect against state bias that would result from not

allowing the Supreme Court to review; state bias would sometimes potentially

interfere with national interest. Need for national uniformity in the law. Cases need

to be able to get to the Supreme Court � logical conclusion of Story’s argument is

that Congress was constitutionally compelled to create the lower federal courts.

- What do we add to judicial review by looking at Fletcher v. Peck & Martin v. Hunter’s Lessee?

•••• Marbury v. Madison dealt with HORIZONTAL approach- between branches- in determining

where the power of judicial review rests.

•••• Fletcher v. Peck & Martin v. Hunter’s Lessee adds two VERTICAL LAYERS to judicial review

(between the federal courts & state courts).

� Judicial review is not an impairment if state sovereignty for the Supreme Court to

declare unconstitutional acts of the states.


� It is ok for the Supreme Court to review cases that are coming from state courts.

(appellate review of cases originating in state court).

2. Constitutional and Prudential Limits on Constitutional Adjudication�� Justiciability Doctrines

- Justiciability doctrines determine which matters federal courts can hear and decide & which they

must dismiss.

•••• Doctrines are limitations on the federal judicial power�political question doctrine,

mootness, ripeness, and standing. (also advisory opinion-only mentioned briefly in class;

essentially court cannot act in an advisory capacity)

- Two sources of these limits:

•••• Constitutional:

� Mootness, standing, ripeness��Constitutional source for these three is the

interpretation of Article III §2 “cases and controversies” language.

� For political question, there seems to be two strains of constitutional

limitations�� textual limitations & structural limitations (if you do not subscribe to

a structural analysis of the constitution then the structural becomes the pragmatic

& fits into the prudential category)

•••• Prudential: derived from prudent judicial administration. In these cases, the Constitution

may allow the federal courts to hear a case, but they may choose not to for policy reasons.

� Prudential considerations may be overridden by statute, constitutional ones may

not.

- Policy considerations that come with the justiciability requirements: these policy considerations

must be balanced with the need for judicial review. You cannot let them prevent the court from

hearing cases where their judgment is needed.

•••• Separation of powers- justiciability requirements define the judicial role and determine

when it is appropriate for them to hear a case and when it is appropriate to defer to the

other branches of government.

•••• Judicial resources- allows courts to save their resources only for those cases that are most

worthy of judicial review.

•••• Improve judicial decision making- provides courts with concrete issue most suited of

judicial consideration; ensure concrete issues & adverse litigants.

•••• Fairness- justiciability doctrines prevent the courts from hearing cases where those whose

rights are violated are not parties to the case.

a. The Political Question Doctrine

- Deals with subject matter that the Court feels is inappropriate for judicial review.

•••• Idea that there are certain allegations of unconstitutional government conduct that should

not be ruled on by the federal courts even though all of the jurisdictional and other

justiciability requirements are satisfied. These matters are believed to be best left to the

politically accountable branches –the President & Congress.

- First get the idea of political question in Marbury v. Madison when the Court articulated it in terms

of areas where the President has unlimited discretion and there could be no claim of

unconstitutional behavior� very narrow formulation of the idea of a political question.

- The political question doctrine is confusing because the court has failed to articulate useful criteria

for deciding what subject matter presents a nonjusticiable political question.

- 2 strands of this doctrine�Constitutional (textual & structural) & Prudential (cases where

pragmatism, prudence, whatever say that it will be best for the court to avoid the issue)


i. Baker v. Carr�� gives current formulation of the political question criteria;

categories are confusing & not very helpful unless looked at in the context of

cases in which they have been applied; after this case, political question doctrine

only applies when trying to overturn the decisions of one of the other branches.

- Criteria which come out of Baker v. Carr

•••• Textually demonstrable commitment to another branch (constitutional text supports this

limitation)

•••• Lack of judicially manageable standards for resolving it (constitutional structure)

•••• Requires initial policy determination for non judicial discretion

•••• Can’t be resolved without expressing lack of respect for another branch

•••• Need for adherence to political decision already made

•••• Avoiding inconsistent pronouncement

� The last three are political reasons. Not saying the court cannot or will not make the

same decision but the court is making a pragmatic decision. Is a pragmatic,

political, prudential judicial decision not to hear the case

- Issue in Baker is with apportionment in Tennessee so there is no threshold separation of powers

issue.

- Court talks about Luther v. Borden where the guarantee clause was at issue. Guarantee clause is a

textually demonstrable commitment to another branch.

- Claim in this case is equal protection- Congress has enforcement power but nothing is preventing

this from being judicially manageable.

•••• The way the case was resolved makes it judicially manageable� this speaks to the

legitimacy of the courts power to review. Criticism of the political question doctrine is

that it is amorphous and something that the court can deploy or not deploy.

� BIG QUESTION� is a case by case doctrine legitimate? Are you letting the court

regulate itself by pulling back when it feels that it’s appropriate to do so.

ii. Nixon v. United States�� application of political question doctrine in cases of

impeachment & removal from office��challenges to the impeachment process

are nonjusticiable.

- Facts: a judge was impeached by House & tried by the Senate. Question is whether the procedure

used is permissible.

- First step of the inquiry��which of the Baker criteria apply here?

•••• Textual one�� look at impeachment clause to say not only that the Senate has the sole

power to impeach but the power to decide the process. Look at other places the word sole

is used as well as what impeachment clause has been read to mean in the past

� Is this case consistent with Baker? Seem to rely on an interpretation on the merits

of what sole means (is on the merits what sole means or whether it’s committed to

another branch?)not if there is a textually demonstrable commitment to another

branch.

� Phrase sole power allocates the power but does not say who gets to decide the

scope & nature of the trial.

- Court argues that Judges are checked by impeachment process so it would be a violation of

separation of powers if we let the court check a process that that is a check on its own power.

•••• This raises a point that is outside the criteria of Baker v. Carr. It is a constitutional

separation of powers argument.

- Justice Souter’s Concurrence�� brings up the point that there are cases where you can envision

there being a need to review a really arbitrary or unfair trial process by the Senate.


- Nixon v. United States stands for the idea that the Senate’s use of a committee to hold a hearing

and make a recommendation on an impeachment is not open to review by the judiciary.

HOWEVER, the case leaves open the issue of whether or not all challenges to impeachment are

non justiciable.

b. Standing�� determination of whether a person is the right party to bring an issue to court

- Standing is viewed as the decision of whether a litigant is entitled to have the court decide the

merits of the dispute or of particular issues.

- Article III power extends to cases & controversies- tends to be a source of a lot of limitations on

judicial power.

- Requirements for standing:

•••• Constitutional: injury in fact, causation, redressability

•••• Prudential (?- question mark because sometimes one of the requirements moves into the

constitutional category):

� No generalized grievances (is a species of injury in fact so in some cases it moves

into the constitutional category): if the injury is equally shared by everyone, even if

you are injured then your issue if best dealt with by the political branches. � No 3rd party standing: have to assert that your own legal rights were violated.

Cannot assert a 3rd party’s rights

• Exceptions exist: total identity of interest- we want to permit you to bring

the suit if one person’s injury directly led to yours. � Within the zone of interest: an example is the endangered species act- requires

people who do activities which impact the environment to create an impact

statement. Statutes may create an interest in certain zones it wishes to protect. In

order to have standing you need to be within the intended zone. – - Value to having standing as a threshold: we are essentially interpreting Article III; theory behind

standing is that we want to ensure that there is an actual injury & that we get vigorous advocacy. - Policies promoted by Standing:

•••• Separation of powers:

•••• Judicial efficiency:

•••• Improved judicial decision making:

i. Allen v. Wright

- Facts: two claims in this case (1) government is effectively subsidizing segregation (2) white

students flock to private schools and lead to schools being segregated.

- In this case, the no general grievance requirement sneaks over to the injury in fact requirement

because the court is finding no injury because it is generalized.

- With regard to the second claim, the issue isn’t with injury in fact but wit causation� court says

there is no causation because there are too many intermediate steps to get to the result the

plaintiff’s claim.

- ISSUE RAISED BY DISSENT RELATING TO THE MERITS OF THE CASE��Dissent is saying the plaintiff’s

don’t have to show the merits of the case, they just have to make allegations and then there should

be an upfront justiciability determination.

•••• BIG QUESTION RAISED BY THIS�� did the court make the justiciability determination or did

they let the merits of the case cloud their judgment leading them to dismiss the case?

ii. Federal Election Commission v. Akins

- Key point is the gloss on the idea that it cant just be an interest in having the government comply

with the law.


- Page 926� talking about general grievance doctrine� doesn’t say whether or not its constitutional

or prudential

•••• Fact that there are exceptions points to the fact that its prudential

•••• There is no generalized grievance here.

- What they are saying in dissent it that FEC needs to comply with the law.

- Assertion that an agency has not followed the law is not for the courts to review. It is the

president’s job to make sure that the laws are faithfully executed

- Puts us more in line with the political question doctrine

•••• Here we have case or controversy requirement but the gloss on the injury requirement is

that the interest cannot just be in having the government comply with the law� allowing

people to come in and tell the government to comply with the law would be a transfer of

the executive power because it is the president’s job to make sure the law is faithfully

executed.

- Your injury needs to be specific and cannot be something that applies to the generalized public.

c. Mootness�� asks whether or not there is still an injury for the court to rectify.

- Mootness & ripeness both have to do with timing

- Mootness�have standing at one time but the facts & the law have changed so you no longer

have standing now.

- Classic case is defunis� gets admitted to law school on a court order. He is contesting

admissions process claiming reverse discrimination

i. Is it constitutional or prudential?

1. Constitutional is Article III.

2. Mootness requirement

a. Things that will force the court to say it’s not moot. Something

begs review but it’s prone to repetition. For example Roe v.

Wade�� by the time the case gets to court she will not be

pregnant anymore. You cannot say it’s moot because of this.

b. Voluntary ceasing of illegal activity.

c. Criminal appeal relating to criminal sentence. Collateral

consequence says that once you are out if your appeal comes up

your case will not be moot.

ii. Defunis v. Odegaard

- Facts:

iii. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.

- Facts:

d. Ripeness�� concerns whether a lawsuit is premature because the injury it speculative and

may never occur.

i. John Doe v. George W. Bush

- Facts: plaintiffs are seeking a preliminary injunction to prevent the President from going to war

with Iraq- they say it violates the constitution

- Main Issue: Plaintiffs claim the court needs to step in to police the boundaries of separation of

powers. Court says this case calls for judicial restraint

•••• Ripeness doctrine involves more than simply the timing of the case. It mixes various

mutually reinforcing constitutional and prudential considerations- (1) need to prevent the

courts, through avoidance of premature adjudication, from entangling themselves in

abstract disagreements, (2) avoid unnecessary constitutional decisions, (3) recognition that


by waiting until a case is fully developed before deciding it, courts benefit from a focus

sharpened by particular facts.

� Come from recognition that the scope of the judicial power is bounded by the

Constitution & other limiting prudential doctrines.

•••• Ripeness is dependent on the circumstances of a particular case. Two factors are used to

evaluate ripeness: (1) the fitness of the issues for judicial decision, and (2) the hardship to

the parties of withholding court considerations. Both factors must be present.

3. The Structure of the Government: Nation and States in the Federal System

a. National Powers and Local Activities: Origins and Recurrent Themes

b. Federal Limits on the Scope of State power

4. The Federal Legislative Power

- Because our government is one of delegated powers, Congress can only act when it has express or

implied power to do so.

- Two Questions to ask whenever Congress acts: (1) Is Congress authorized to legislate under the

Constitution? and, (2) even if Congress is allowed to legislate, does the law it is attempting to pass

violate some other Constitutional provision or doctrine (such as separation of powers, federalism,

or interfering with individual liberties)?

a. Necessary & Proper Clause��Scope of Congressional Authority

i. McCulloch v. Maryland�� seminal in defining the scope of the federal legislative

power & its relationship to state government authority; case used to broadly

construe Congress’ power & limit the authority of state governments to impede the

federal government.

- Facts: the charter for the 1st bank of the US lapsed in 1811 & Congress chartered the 2nd bank in

1816. Maryland imposed tax on all banks in Maryland not incorporated in Maryland� this imposes

a tax on the bank. Sued bank’s cashier for back taxes & Maryland ordered the bank to pay.

McCulloch appealed arguing that the tax was unconstitutional. On appeal Maryland claimed the

bank was invalid (Congress did not have the power to create it).

- Central Question: the court considered two questions in this case (1) Does Congress have the

power to incorporate a bank? and, (2) Can Maryland constitutionally tax the bank? (sole issue was

really whether Maryland could tax the bank, but beginning by establishing Congress’ authority to

establish the bank it was then easier to explain why Maryland could not tax the bank).

•••• Can Congress establish the bank? (1) Historical practice- invoked the creation of the first

bank of the united states to show that congress had the power (this argument is dangerous

because it can be used to justify a host of things that are not necessarily constitutional; used

a lot in presidential powers cases).(2) States do not retain ultimate sovereignty under the

Constitution- rejected view of compact federalism (idea that only the states are truly

sovereign because they created the national government) & advocated the idea that the

people created the government & are truly sovereign not the states.

� MAIN POINT��Scope of Congressional power under Art. I�� before getting to

N&P, court pointed out that while Congress isn’t expressly given the power to

charter a bank, the absence of that power is not dispositive of Congress’ ability to

do so� idea is that Constitution is not a statute (“in considering this question, the,

we must never forget that it is a constitution we are expounding.”) and must not be

interpreted as such. Congress is not limited to those acts specified in the

Constitution; Congress can choose any mean not prohibited by the Constitution to

carry out its enumerated powers.

• NECESSARY & PROPER CLAUSE�� Congress may choose any means not

prohibited by the Constitution to carry out its express authority. “Let the


end be legitimate, let it be within the scope of the constitution, and all

means which are appropriate, which are plainly adapted to that end,

which are not prohibited, but consistent with the letter and spirit of the

constitution are constitutional.” Necessary means useful or desirable, not

indispensible or essential. Question�� what should be the measure for

the appropriate nexus between the means & the ends? Is the court

equipped to determine this?

o Marshall says that because N&P clause is in Art. I, Sec.8 which

EXPANDS Congress’ power, not limits it which it probably would if

it were in Art. I, Sec.9.

� This DOES NOT give Congress limitless authority� If they

pass anything that is not consistent with the Constitution,

the court can review it & strike it down (reaffirmation of

judicial review)

•••• Can Maryland tax the bank? Power to create the bank comes with the power to ensure its

continued existence. “The power to tax involved the power to destroy; and that the

power to destroy may defeat and render useless the power to create.” State cannot tax

the bank because it will impede it in its operations and potentially destroy it. (Brings up the

question of the safeguards of federalism & whether we should allow the courts to safeguard

it or let the branches regulate themselves)

b. The Commerce Clause “The Congress shall have the power…[t]o regulate Commerce with

foreign Nations, and among the several states, and with the Indian Tribes…”

- Three Questions which are considered throughout the history of the Commerce Clause (1) what is

commerce? (2) What does among the several states mean- is it limited to instances where there is a

direct effect on interstate commerce or is any effect on interstate activities sufficient? (3) Does the

10th amendment limits Congress- if Congress is acting within the scope of its commerce power, can

a law be declared unconstitutional because it violates the 10th Amendment?

i. Definition of the Commerce Power

1. Gibbons v. Ogden

- Facts: New York granted a monopoly to Livingston & Fulton. Licensed out to Ogden & Gibbons, a

competitor claimed he had a right to run his ferry business as well because his ferry was licensed

under a federal statue as a ferry in the coasting trade. Ogden sued for injunction.

- Questions of the case:

•••• What is the commerce power? Commerce is something more than traffic. It is intercourse.

Not merely buying & selling. Encompasses navigation as well. Among the several states

means intermingled with, Congress has no power over commerce that is purely internal to

a state (intrastate), however commerce does not stop at the boundary line of the state.

Only involves commerce involving more than one state. Anything that is completely

internal is considered reserved for the state. Congress can regulate an intrastate activity if

it affects interstate commerce. The meaning of among the several states chosen by the

court requires a case by case inquiry into whether or not an activity has interstate effects.

•••• Do the states possess a concurrent power? No. Congress’ commerce power is plenary,

meaning it is complete in itself meaning Congress has complete authority to regulate all

commerce.

•••• Is Congress’s power “exclusive?” implication is that of exclusivity�meaning the states

would be completely barred from regulating even if Congress had not passed a law.

Congress would be able to act in the same way as if no state governments existed. Sole


check on Congress would be the political process not any judicial checks. However, the

Court never really says that the commerce power is exclusive.

- IN THIS CASE IT IS UNCLEAR AS TO WHETHER THE COURT’S FORMULATION IS BASED ON THE

COMMERCE CLAUSE ALONE OR THE COMMERCE CLAUSE (+) �� looking especially at the

formulation relating to reaching some intrastate activities.

Dormant Commerce Clause

- Principle that state & local laws are unconstitutional if they place an undue burden on interstate

commerce. This means that a states regulation of commerce is fine as long as it isn’t harming

another state.

•••• If Congress has legislated on the matter: does federal law preempt the state or local law?

•••• If Congress hasn’t legislated on the matter (or no preemption is found): state or local law

can still be challenged by arguing that it excessively burdens commerce among the states.

Even if Congress HAS NOT ACTED, meaning the commerce power is LYING DORMANT,

state & local laws can still be challenged as unduly impeding commerce.

� When Congress isn’t exercising its power there is still some control reserved to

Congress. Comes up when states are doing things that are protectionist.

� Also extended to things where Congress has no statute, state has one but there is

no protectionist element to it. Court will look at burden on commerce versus the

benefit to the people. If the burden is too large and the benefit too small it is

unconstitutional.

ii. Commerce Clause (+) Necessary & Proper Clause

1. Pre -1937 Court

- United States v. Dewitt: one of the few cases pre 1937 where a federal law was overturned as

violating the commerce clause. Federal law that outlawed the sale of naphtha & other illuminating

oils. Court said the law was a police regulation, relating exclusively to the internal trade of the

states. Decision seemed to limit the scope of the commerce clause by declaring that the clause is a

denial of any power to interfere with the internal trade and business of the separate States.

•••• Commerce clause is limited by the enumerated powers & Congress cannot regulate internal

state trade � only exception is if the law falls under the necessary & proper clause.

- Court advanced the idea of dual federalism�state & federal governments were separate

sovereigns with separate zones of authority. Courts role is to protect the states by interpreting the

Constitution to protect the states’ zone.

•••• Three doctrines the court developed & followed at this time:

� Narrowly defined the meaning of commerce so that a zone of power was left to the

states. Limited commerce to mean one stage of business which is separate and

distinct from earlier phases- does not include manufacturing, or production.

� Narrowly defined among the states to allow Congress to regulate only when there

was a substantial effect on interstate commerce. In all other cases, regulation was

left to the states. Distinction between direct & indirect effects on commerce.

� 10th amendment reserves a zone of activities to the states so those even federal

laws within the scope of the commerce clause were unconstitutional if they

invaded that zone. (Do other constitutional provisions and structural considerations

limit the scope of Congress’ commerce power?)

- These doctrines were not consistently applied� most likely in cases considering federal economic

legislation & least likely to apply them in cases dealing with federal regulation of morals.

- Considered during this period: who should police the boundaries of congressional power?

Congress or the Courts?


a. Reconstruction Era: The Legal Tender Cases�� debate about the

scope of the Necessary & Proper Clause

- Issue in this case is Congress’s ability to confer legal tender status on paper money� about raising

funds after the civil war to pay for debts. Issue was that the Framers were distrustful of paper $$

because in their experience, when paper $$ was issued it led to value depreciation.

- Constitutional Provisions at play: Art. I, Sec. 10: congress cannot confer legal tender status on

anything other than gold or silver; Art. I, Sec.8: power to coin $$, Art. I, Sec.8: power to borrow $

on credit.

- Hepburn v. Griswold: Uses Justice Marshall’s N&P formulation from McCulloch. Decision is not very

deferential to Congress in terms of being allowed to determine what is necessary & proper. Power

to confer legal tender status on paper money is not found in any of the enumerated powers & you

could say that the power to make money is incidental to just about every function of Congress.

- Knox v. Lee�� overturned Hepburn: more deferential to Congress than Hepburn. All members of

Congress have taken an oath to protect the constitution so we have to assume they are doing so.

Power to confer legal tended is necessary to preserve the union & Congress has to have powers of

self preservation.

- Julliard v. Greenman: application of the N&P clause is best left to Congress.

- From the Legal Tender case you get a very important formulation of the N&P Clause. If you can

stack the N&P clause on top of other provisions of the Constitution then you can either limit the

implied powers of Congress or open them broadly.

- Question of Deference to Congress: From McCulloch, we get the idea that the power to interpret

the N&P clause belongs to Congress. You also get this view from Gibbons v. Ogden. In the Legal

Tender Cases, you get a spectrum from Hepburn to Julliard where it goes form not deferential to

very deferential.

iii. The Progressive Era�� up to 1937

1. E.C. Knight�� about the reach of the Sherman Anti Trust Act.

- Main Questions: Can Congress use the Sherman Anti Trust Act to regulate a sugar monopoly?

•••• Congress cannot control the monopoly because its commerce power does not allow it to

regulate manufacturing, and the monopoly was in manufacturing of sugar not its

commerce. Reason for this restriction was to preserve a zone of control for the states.

Government is one of enumerated powers and allowing commerce to include

manufacturing would allow Congress to reach into the states. Court said that the effect of

manufacturing on commerce was too indirect to warrant federal regulation.

� Dissent: focuses on the fact that stacking the N&P clause on top the commerce

clause, allows Congress to regulate manufacturing. Congress can regulate whatever

impacts interstate intercourse & this does not hurt state autonomy.

2. Champion v. Ames (Lottery Case) ��state sovereignty (10th amendment) &

commerce clause

- Main Question: Can Congress prohibit the interstate shipment of lottery tickets? YES

•••• Uses commerce clause as an end not a means. The power to regulate interstate commerce

includes the power to prohibit items from being in interstate commerce. Court rejected

the argument that the law violated the 10th amendment & intruded on the states

prerogatives. Also rejected the slippery slope argument that allowing Congress the power

in this case would lead to abuse later on. Did not define the zone of activities reserved to

the states.

3. Hammer v. Dagenhart (Child Labor Case)��state sovereignty (10th

amendment)& the commerce clause


- Distinguished from Champion v. Ames in that the lottery tickets were seen as polluting interstate

commerce whereas the goods produced with child labor were not.

- Main Question: Can Congress ban the shipment of goods made with Child Labor? NO

•••• Law only controlled goods in interstate commerce but was found unconstitutional because

it regulated production. Court said that Congress’ commerce power was to allow it to

regulate commerce not intrude on the states’ police power over local trade &

manufacturing� power to regulate hours children could work is a state power. Congress

cannot try to coerce states to use their police power (Congress trying to get states to

outlaw child labor with this legislation) to prevent unfair competition. Slippery slope

argument that is Congress is allowed to regulate in this case, it will go far into the States

sphere and there will be no freedom of commerce & no power of the states over local

matters.

- To Consider in comparing Champion v. Ames & Hammer v. Dagenhart: both cases dealt with

Congress prohibiting the interstate shipment of specific items (good manufactured with child labor

& lottery tickets). In both cases the goal was to stop an interstate activity (use of child labor,

gambling with lottery tickets). However, the court gave opposite opinions in the two cases. Does it

matter that in one Congress is legislating morals and in the other economic regulation?

iv. The New Deal & Post New Deal: The Civil Rights Cases

- Commerce Clause between 1937-1995: depression led the court away from a laissez fair approach

to economics and brought about the need to abandon the arbitrary distinctions that characterized

commerce clause cases.

- E.C. Knight, Dagenhart�� cases characterized by the idea that there needs to be a limit

somewhere- commerce versus manufacturing, direct effect versus indirect effect. After 1937,

these arbitrary distinctions disappear. Commerce comes to be broadly interpreted, among the

states includes intrastate activities if it affects commerce, and the power to regulate is broad &

plenary. Old approach overruled by Jones & Laughlin, Darby, & Wickard. Shift from a very formal

approach to the commerce power to one that is looking at the practical effect of the legislation.

1. The Substantial Effect Doctrine

a. Jones & Laughlin (challenging the constitutionality of the NLRA)

- Main Question: Is the NLRA act constitutional? Act applies when there is an effect on commerce &

defines affecting commerce. YES

•••• You can square the ruling in this case with the older cases BUT it signals a huge shift in the

way the court looks at the commerce clause. Court goes into lengthy discussion on how

Jones & Laughlin is part of interstate commerce because it is such a large steel producer.

Steel is part of the stream of commerce & labor relations within it have a direct effect on

commerce. The act only reaches that which burdens or obstructs commerce so it much be

read as falling within Congress’ constitutional exercise of power. What led to the effect on

commerce us not what matters. What matters is that it is affecting commerce. The power

to regulate may involve the regulation of activities that seem intrastate but have

substantial connection to interstate commerce, so Congress cannot be denied the power to

regulate in this case.

b. Darby (challenge to the constitutionality of the Fair Labor

Standards Act of 1938)� overrules Hammer v. Dagenhart.

- Main Question: Can Congress regulate the shipment of goods made by workers who are paid less

than the prescribed minimum wage? YES�� in deciding this the court departed from ALL PRE 1937

aspects of its commerce clause evaluations.


•••• Court doesn’t care what Congress’ motivation is for the law, they give it a presumption of

constitutionality. Commerce power is plenary & includes the power to prohibit. Congress

has the power to regulate things that have a substantial effect on commerce even if it is

not commerce in & of itself. (Is this purely commerce clause or is this commerce clause

(+)?). Court reads the 10th amendment as a truism (inconsistent with Hammer v.

Dagenhart) which does not impose any independent limits on Congress’s power. 10th

amendment is more to calm states fears not add anything to the Constitution. 10th

amendment cannot be an independent basis for unconstitutionality. Precursor to

aggregation- congress can regulate tons of little entities because added up they impact the

whole industry.

2. The Aggregation Principle

a. Wickard v. Filburn (challenge to the agricultural adjustment act &

regulation of the home consumption of wheat)

- Main Question: Can Congress legally regulate wheat grown for home consumption under its

commerce power? YES

•••• Even though home consumption of wheat isn’t interstate commerce, if you aggregate

everyones’ it affects interstate commerce. If there is a substantial economic effect then it

is constitutional for Congress to regulate. What is important is the effect on interstate

commerce, not the arbitrary distinctions used before. Commerce Clause (+) is doing most

of the work in this case. Deference to what Congress may have rationally thought (very

deferential standard).

•••• Aggregation Principle: court found that home consumption of wheat was the single most

variable factor in the wheat market. Even though the farmer in this particular case had a

negligible impact on interstate commerce the cumulative effect of homegrown wheat had a

substantial effect on interstate commerce.

� Does this aggregation principle leave anything untouched? Justices had concerns

that there was no judicially enforceable limit. We get hints that there is no judicially

enforceable limit but no one explicitly says so.

- Commerce Clause after 1937: Test after 1937 said that Congress could regulate all stages of

business & could regulate any activity that taken cumulatively had an effect on interstate

commerce, 10th amendment was no longer an independent basis on which the validity of laws

could be questioned. Until 1995 �� Congress could regulate ANY activity as long as there was a

substantial effect on interstate commerce. (Also includes Wickard standard which says any activity

as long as its aggregation has a substantial effect on interstate commerce).

3. The Civil Rights Cases

- Civil Rights Act of 1964: in part outlawed discrimination based on gender, race, or religion by places

of public accommodation such as hotels & restaurants. Legislation was passed under the

Commerce Power (Congress was still unsure whether or not they could legislate to outlaw private

discrimination under the enforcement clause of the 14th

amendment).

a. Heart of Atlanta Motel v. United States (dealing with Title II of the

Civil Rights Act of 1964)

- Main Question: Can Congress prohibit discrimination in places of public accommodation? YES

•••• Court asked several question in its analysis (1) Did Congress have a rational basis for finding

that racial discrimination by motels affected commerce, and (2) If it had such a basis,

whether the means it selected to get rid of the problem were reasonable & appropriate.

This approach seems to be coming straight from McCulloch v. Maryland’s formulation of

the N&P clause. Court says it doesn’t matter that Congress may have employed other

means to meet the end. The decision what the means will be is at Congress’ discretion.


� ‘(1)�� Court gives a recitation of the evidence Congress had before it & says it was

voluminous and showed overwhelming evidence of discrimination. Does not

matter that Congress’ motive was moral nor that the discrimination in question

was of purely local character (If it is interstate commerce that feels the pinch, it

does not matter how local the operation which applies the squeeze.)

� (2)�� Rational basis test is ubiquitous. Is really just shorthand saying how much

leeway we are going to give the government. Asking whether their action was

rational is basically a deferential standard.

b. Katzenbach v. McClung�� application of Title II to a small business

- No Congressional evidence connecting restaurants discriminatory practices to commerce used in

this case. Court says they can use general evidence; absence of direct evidence is not troublesome

to Congress.

•••• Missing evidence showing that discrimination affecting food being served is affecting

commerce

� If you look at it as offering to server interstate travelers then this case is on par

with Heart of Atlanta.

� A 2nd reading of the case gives you the notion that the food moving is what allows

Congress to regulate discrimination. Takes McClung a step farther than Heart of

Atlanta.

•••• State action language comes from civil rights cases in 1870s where they said the 14th

amendment only applied state action. Said that 14th amendment couldn’t be the basis for

passing the law because it dealt with private instances of discrimination.

� Harlan’ s dissent: private actions were badges & instances of slavery & could be

legislated against.

•••• Notion that §5 applies shows that Douglas & Goldberg have a broader conception of what

“state action” under the 14th amendment.

- Used aggregation principle (Wickard v. Filburn reasoning)� decision not based on the impact of

the particular restaurant involved in the case. Instead, the Court said that Congress could have

rationally found that discrimination by restaurants cumulatively had an impact on interstate

commerce.

- Issues with broad definition of commerce clause: runs somewhat counter to the idea that the

federal government is one of limited powers where most of the actual governance is left to the

states. The expansive reading of the commerce clause allows Congress to do virtually anything as

long as it doesn’t violate some other constitutional provision.

- Who decides? Should the judiciary protect the states or is the only check on Congress the political

process?

4. Federalism & the Separation of Powers�� as external limits on the

commerce power��PART OF FEDERALISM REVIVAL

- Following United States v. Lopez, the Court narrowed its previously broad interpretation of the

commerce power & began declaring laws unconstitutional as violations of the commerce power.

a. United States v. Lopez (1st important commerce clause legislation

following Wickard� court pulls back to pre Wickard standards)

- Facts: Gun Free School Zone Act making it a federal offense for anyone to have a firearm within a

place that the person knows or could reasonably know is a school zone.

- Main Question: Is the Gun Free Zone Act an unconstitutional exercise of Congress’ commerce

power? YES


•••• The law is unconstitutional because it was not substantially related to interstate commerce.

Noted that there was nothing which limited the application to cases where there was proof

the gun had been part of interstate commerce. Also an issue is the lack of jurisdictional

hook & the absence of findings.

•••• Based on previous Commerce Clause decisions, the court identified three types of activities

which Congress can regulate under its Commerce Power. The line between categories (2)

& (3) is not clear but if you put some cases in category (2), you constrict category (3)

which would seem to be the one with the potential for most expansive application.

� Congress can legislate to regulate the use of the channels of interstate commerce

� example is Heart of Atlanta.

� Congress can legislate to regulate and protect the instrumentalities of interstate

commerce.

� Congress can legislate to regulate those activities having a substantial relation to

interstate commerce.

• On this note, the court said the more preferable approach is the more

restrictive one� proper test requires you to analyze whether the regulated

activity substantially affects interstate commerce. Further, just because

Congress finds something to substantially affect commerce doesn’t mean it

does. The court may still review Congress’ determination.

•••• Concurrences:

� Justice Thomas: advocated a narrower view of congressional power than the

majority. Wanted to return pre Wickard approach to commerce clause.

� Justices Kennedy & O’Connor: emphasized federalism & relationship between

limiting Congress’ authority & protecting state prerogatives.

•••• Breyer’s Dissent: said majority was engaging in undue judicial activism and abandoning 60

years of precedent. Advocated the rational basis approach.

- BIG QUESTION�� WHO DECIDES? �� do we use the rational basis test (from the civil rights cases)

OR allow the standard to be that as long as Congress could have assumed a connection it is valid

(Wickard approach� Congress had no real findings & the court commented on this but still upheld

the statute)

- LOPEZ’S CHARACTERIZATION OF PRIOR CASES: court discusses how the older cases were

preoccupied with the distinction between commerce & the police power. Prior cases have given a

lot of deference to Congress and suggest the opportunity for further expansion of Congress’ power

but to do that would allow Congress to expand into the states’ police power.

•••• Categorize prior cases is a way that is inconsistent with what the really represent� court

says that all activity regulated has been economic activity; however this was not the case in

the civil rights cases.

� Economic/non economic line of reasoning: this characterization allows the court

to dodge an evaluation of the rational basis test. Because activity is non economic,

rational basis doesn’t come into play because Congress can’t regulate it anyway.

b. United States v. Morrison�� limits substantial effects approach &

aggregation in non economic activities; goes farther than Lopez in

limiting Commerce power; federalism & separation of powers

case

- Main Question: can the civil damages portion of the Violence against Women Act be upheld under

the Commerce Power? NO (found unconstitutional under both Commerce Power & enforcement

clause of the 14th amendment)


•••• Reaffirmed three part categorization from Lopez. Plaintiff claimed the statute fell into (3).

Court rejected this argument and the fact that Congress had claimed to have found that

violence against women substantially affects interstate commerce. Just because Congress

says something substantially affects commerce doesn’t mean it does. It is subject to

judicial review. Congress is attempting to regulate a non economic activity which is

generally regulated by the states. Congressional findings ARE NOT ENOUGH to sustain the

constitutionality of Commerce Clause legislation.

•••• CANNOT REGULATE NON ECONOMIC ACTIVITY BASED ON AGGREGATION. THIS WILL

BLUR THE LINE BETWEEN WHAT IS NATIONAL AND WHAT IS LOCAL.

- Justice Thomas’ Concurrence: object to substantial effects test & wants more narrow view of

commerce power. No aggregation at all.

- Justice Souter’s Dissent: wants judicial deference to Congressional fact finding. Not supposed to

review Congress’ assessment for soundness but rationality � wants rational basis test.

c. Assessment of Lopez & Morrison

- In both case, the court is preventing congress from using the commerce clause to regulate

intrastate activities.

- Question of whether there is a limit to the commerce power?

•••• Lopez & Morrison represent a shift where it seems that when you are using the substantial

effects portion of the commerce clause (category 3), Congress MUST be regulating

ECONOMIC ACTIVITY.

- Question of importance of Congressional findings

•••• Lopez: absence of findings is a factor if Congress is doing something not intuitive to the

court, findings are needed.

•••• Morrison: findings not enough. Congress is trying to make this look like the civil rights cases

to identify the connection.

- Congressional deference versus Judicial review; varying opinions:

•••• Idea of the need for the jurisdictional hook in Lopez raises the question of effective use of

the courts time. After the Court said the jurisdictional hook would make a difference,

Congress added it and the law had not been struck down. Is this an efficient use of the

courts time if Congress can just amend the law and make it ok?

•••• Notion of safeguards of federalism which will prevent ineffective legislation is ridiculous.

Courts have to play a role in regulating Congress.

•••• This is not a good task for the court because arbitrary line drawing makes the court seem

inefficient and it’s really not in a position to second guess Congress.

- State Autonomy: in Morrison, 21 states agreed to have Congress pass the legislation. Court is

striking down a law that has heavy state support.

•••• Can argue that by state approval it’s the will of the states� counter: but can’t you say that

Congress’ actions are the will of the states?

•••• Not the job of the states, not all but a few, to force the others to follow their view.

•••• Can also argue that state cannot cede their power to Congress.

d. Gonzales v. Raich��federalism & separation of powers problem

case

- Main Question: Can Congress use its Commerce Power to prohibit growth & use of marijuana even

though the defendants are in compliance with California law)? YES

•••• Relied on Wickard & applied aggregation� said that looking at the effects of marijuana

cumulatively, including that grown for medicinal purposes, there was a substantial effect

on interstate commerce.


•••• COURT DID NOT CHANGES THREE CATEGORY TEST FROM LOPEZ, nor did it upset the idea

expressed in Morrison that aggregation is not allowed for non economic activities.

- Gonzalez stands for �� INTRASTATE PRODUCTION OF A COMMODITY SOLD IN INTERSTATE

COMEMRCE IS ECONOMIC ACTIVITYSO AGGREGATION CAN BE USED TO FIND A SUBSTANTIAL

EFFECT.

•••• Majority attempts to parallel Wickard but the activity here is neither economic nor

commercial. Categorizes it as such to square the opinion with Morrison. Kind of depends on

how broad a class is being regulated. The people growing pot for their own purposes are a

very small portion of the market so it depends on how you characterize the growth you are

trying to regulate. Dissent argues that the category we should be looking at is the home

growth for medicinal consumption.

c. The Reconstruction Amendments

i. 13th amendment�� abolishes slavery

- 2nd clause is significant because it shows how the civil war changed out government. Prior to war

the fear was of the federal government, the war led to complete inversion of those fears.

•••• Use of the phrase “appropriate legislation”�tying back to language in McCulloch. Allowing

Congress to legislate broadly.

ii. 14th amendment��overturns the ruling in Dred Scott

- There is evidence that section 1 is tying back to Article IV & taking the Bill of Rights and a host of

natural rights and protecting them from state power.

- 2nd half of Sec. 1�� what the 1st clause (privileges &immunities clause) was supposed to do this

clause picks up the slack for (due process)��Congress read the first half out of the Constitution

(slaughterhouse cases)

- Sec 2. � Telling the south that if they deny the right to vote to Blacks, their representation will be

limited accordingly.

- Sec. 3. � Limits service in Congress for confederates

- Sec. 4. � Wipes out confederate debts. No compensation for slave owners.

- Sec. 5. �� enforcement power

iii. Legitimacy of the 13th and 14th amendments

- Ackerman’s argument� constitution can be amended without the formal Article V process. Idea of

“constitutional moments” where the people accept that the Constitution has been amended even

though the process wasn’t followed. Example is new deal & reconstruction amendments

- Both amendments were proposed by bi congresses without the representation of the South but

there was quorum�� enough to do business & enough approved to pass.

iv. 15th amendment

- 14th amendment thought of as referring to civil rights not political rights including franchisement

- 15th gives universal right to vote and gives Congress the power of enforcement

d. Enforcement Clause of the 14th Amendment

- Implications of the substantive due process cases: deference to state legislatures versus

Congress.

- QUESTIONS RAISED BY THE RECONSTRUCTION AMENDMENTS:

•••• MAY CONGRESS REGULATE PRIVATE CONDUCT UNDER THEIR AUTHORITY OR IS

CONGRESS LIMITED TO ONLY REGULATING GOVERNMENT ACTIONS?

� The Civil Rights Cases�Supreme Court found the Civil Rights Act of 1875 to be

unconstitutional. Act prohibited private racial discrimination in places of public

accommodation. In the process of declaring the act unconstitutional, the court

adopted a restrictive view of the courts power to use the reconstruction


amendments to regulate private activity. Court said that Congress lacked the

authority to pass the law under both the 13th and the 14th amendment.

• 14th amendment analysis�court said that the 14th amendment only

applies to government action not private action because it is prohibitory

against the states and does not deal with individual invasion of individual

rights.

o If civil rights cases are correct you get a narrow interpretation

that Congress can only legislate on what is already unlawful under

the 14th amendment

o Broad reading�� allows Congress to declare the substance of the

Amendment. Danger is that you can end up with Congress either

expanding or contracting the scope of the amendment

o Congress might be able to enforce a complex/ nontraditional

remedial scheme that the court can’t deal with on its own.

� It has since been made clear that Congress cannot use §5 of the 14th amendment to

regulate private activity.

• United States v. Morrison�� constitutional challenge to civil damages in

the Violence Against Women Act

o If a state has a law that discriminates against one gender, it must

show that there is a compelling state interest it supports.

o Statute allows civil federal remedy for gender based violence-

provides an alternative remedy to criminal charges.

� Not preventative because it’s not preventing discrimination

and not remedial because it’s not remedying the problem.

Saying remedy it not corrective in that it is not fixing the

Constitutional defect but providing an alternative remedy

to victims

� Arguments in support of the legislation (counter to the

court’s ruling): this may be and most likely is the least

intrusive way to remedy the problem. However, you can

argue that it isn’t a proper remedy because it does not

incentivize the state to take no corrective measure.

However, you can say it is a proper preventative measure

because it offers you an alternative you don’t have to

subject yourself to the discriminatory process.

o Plaintiff claimed the act was constitutional under both the

commerce clause & Congress’ §5 enforcement power under the

14th amendment. (Commerce claim was found unconstitutional

because you cannot aggregate non economic activity). On the §5

justification, the Court reaffirmed the civil rights cases and

disavowed contrary opinions. Justice Rehnquist said the 14th

amendment only prohibits state action.

•••• WHAT IS THE SCOPE OF CONGRESS’ POWER UNDER THESE AMENDMENTS? �� Under the

enforcement clauses, can Congress only provide remedies or can it engage in a separate

interpretation of the Constitution, and even overrule Supreme Court decisions?

� Katzenbach v. Morgan�� EXPANSIVE view of Congress ‘power under §5 of the 14th

amendment; Voting Rights Act trying to eliminate literacy tests for Puerto Ricans.


� MAIN QUESTION�� what does it mean for congress to have the power to

enforce?

• Indicates that Congress can interpret the Constitution & overturn the

Supreme Court.

• Court supported the Voting Rights Act provision as valid under §5 for 2

reasons:

o Not just that the 14th amendment outlaws discrimination in voting

but in other things as well. Law would empower Puerto Ricans and

serve as a remedy for discrimination making it constitutional.

� Wickard like in that there is no requirement for findings!

The determination is left to Congress. So based on this, is

the Court allowing Congress to exercise a substantive

power & define the substance of the 14th amendment?

• Two theories on this: (1) Substantively Congress

gets to eliminate discrimination intentional or not.

(2) Congress gets to assume intentional

discrimination & relieve the evidentiary burden.

o The McCulloch N&P evaluation is

problematic because it’s not clear that the

nexus between the means and ends

shouldn’t be tighter.

o Congress could find that literacy tests denied equal protection.

More significant part of the ruling because it allows Congress to

define the meaning of the 14th amendment�� substantive

power/content of the 14th amendment.

� Issue was whether §5 only gave power to provide REMEDIES or to determine the

CONTENT and MEANING of the 14th amendment.

� Said §5 has a NECESSARY AND PROPER TYPE POWER and applied the necessary

and proper evaluation used in McCulloch. The end, if it is to end intentional state

discrimination in voting is a legitimate end. The means is the provision of the

Voting Rights Act at issue.

• Why not look at whether or not there is discriminatory intent? Court only

looks at whether the means are appropriately adapted to the ends.

� Dissent: Concern that Congress will use this power to dilute individual rights

� City of Boerne�� rejects Morgan view & narrows §5 power�� PART OF

FEDERALISM REVIVAL

• §5 comes into play here because the 1st amendment has been

incorporated. Congress wants to restore the test the court rejected. Court

scales back on Morgan but in a relatively easy case.

• Congress cannot use §5 to expand the scope of rights or create new ones.

• Prior to Smith, government action that burdened religion was only upheld

if necessary to a compelling state interest.

o In Smith, court said free exercise clause couldn’t be used to

challenge neutral laws that were generally applicable. If they are

facially neutral you apply the rational basis test, not strict scrutiny.

• RFRA was passed to overturn this. Goes back to compelling state interest

standard� Congress wants to subject all legislation to strict scrutiny. Must


also be the least restrictive way to further that compelling government

interest.

• In Boerne� Court says that Congress is limited to prevention & remedy

and there must be congruence and proportionality between the injury to

be prevented or remedied and the means adopted to that end.

o Power to enforce not define a right. Rights must already be define

and recognized by the Supreme Court. Enforcement power is

neither plenary nor is it substantive.

o Relation of congruent & proportional to rational basis� congruent

& proportional seems to be a tighter standard.

• Conclusion is defended by a Separation of Powers argument. The court not

Congress gets to interpret the Constitution. Cannot let Congress define its

own powers. If Congress is allowed an interpretive/substantive role, then it

will be on equal par with the court.

• None of the dissenters challenge the majority view on §5

- Pros & Cons of Boerne Ruling:

•••• Protects Courts role as interpreter of the constitution. Court defines rights & Congress

enforces them. Avoids danger of Congress diluting rights and maintains Constitutional

premise of federal government with limited powers and governance left largely to the

states. Protects both federalism & separation of powers.

•••• Doesn’t allow Congress to expand the scope of rights. Constitutional protection has been

recognized as the minimum. 9th amendment invites the government to create more rights.

Therefore if the Supreme Court says a right is not constitutionally protected this is not

counter to Congress’ statutory protection.

� University of Alabama v. Garrett�� analysis of statute involved is altered by the

ruling in Seminole Tribe

• Article I power do not allow Congress to legislate against the 11th

amendment because it puts limits on the Article I powers. However, if

Congress is legislating under its §5 enforcement power then it can legislate

against the 11th amendment.

• Statute in this case was passed before the above principle was established

so the statute was passed under the Commerce Clause.

• Must pass the Boerne standard to be found Constitutional.

o Two levels of inquiry: (1) find the scope of the constitutional right

at issue, and then (2) Ask did Congress indentify a history & pattern

of unconstitutional employment discrimination? There were

findings but the court said that most actions were not state

actions. Even if they had findings showing a pattern, congruence

and proportionality are a problem here.

• Dissent: the court is applying the standards that are applicable to the

judicial branch to the legislative branch (rational basis idea). Congress is

better equipped that the Courts to do fact findings and reflect public

attitude.

� Nevada Department of Human Resources v. Hibbs�� analysis of statute involved

is altered by the ruling in Seminole Tribe

• Statute provides remedy for damages from employer. Court decides that

Nevada State employees can sue and recover damages from the state.


• To determine whether the statute is a valid exercise of §5 they go through

the same inquiry as in Garrett.

o There are findings and the remedy is congruent and proportional.

There were prior attempts at remedying the problem and the

legislation creates a remedy in response to the past failures. Says in

this case the statute is narrowly tailored making it ok.

• Scalia’ Dissent: says law is too broad because it applies to all states.

Remedy extends beyond violators.

• Kennedy’s Dissent: Congress did not make adequate findings & the statute

is a benefit program not a remedy. Congress needed more specific

evidence to show discrimination despite the passage to Title VII. Evidence

was all of private sector discrimination not the states. Have to ask whether

remedy is proper for allegation, states aren’t required to provide family

leave so if they deny it, it’s not a constitutional violation.

- Principle from cases following Boerne: if claims receive heightened scrutiny, then Congress has

broader authority under §5. If claim gets rational basis, Congress’ power is very narrow.

e. The Spending Power

- QUESTIONS RAISED BY SPENDING POWER

•••• Does the spending power allow spending for anything?

� Congress’ power to spend is not limited by the reach of the other powers in

Article I. Congress can spend to achieve ends it wouldn’t otherwise be able to

pursue under its Article I powers.

•••• Can Congress place conditions on $$ to accomplish ends outside of the enumerate

powers?

� Congress can place conditions on the $$ it spends & can make deals with the

people it gives $$ to.

- If you look at these two things together it seems like Congress can do whatever it wants. Can it?

i. South Dakota v. Dole�� deals with conditions on $$ spent. Is it true that the

general welfare clause + this case = Congress can do whatever it wants?

- Statement of general black letter principle which governs Congress’ use of their spending power:

(1) spending must be for the general welfare; defer to Congress for what counts as the general

welfare. (2) if federal funding is conditional, the conditions MUST be clear (3) and must be related

to a federal interest (4) constitution may bar some conditions.

- Is not a separate spending clause- mean the provision that allows Congress to pay debts

� You don’t need this provision for congress to spend $$. Why? they can spend $$

under the N&P clause (reasoning that supports this comes from MCulloch)

� Spending clause goes beyond N&P clause. General welfare clause has been

interpreted to mean that Congress can go beyond what is N&P

� Term “general welfare” some scholars claim it is meant to have some bite- mean

nation’s projects. What is means now is that you defer to congress on what it

means

� In the background�� Hamilton versus Madison debate. Hamilton says Congress’

power to provide for general welfare goes beyond the article I powers.

- Issue of germainess� there is an argument that the nexus between the condition and the highway

spending is not close enough (over inclusive & under inclusive)- S.D. could argue that Congress is

overstepping its bounds and encroaching on the state’s power as given in the 21st amendment


- Justice O’Connor’s dissent: difference between a condition on how $ can be spent and a restriction

on when they can get the $. The ones that are going to be most intrusive are not telling a state it

has to abide by a federal law but that it must pass a law.

f. External Limits on the Legislative Powers in Article I��Federalism

i. The 10th amendment

- MAIN QUESTION: is the 10th amendment a judicially enforceable limit on Congress’ power so that

federal laws can be declared unconstitutional as a violation of it? Are there some cases where

Congress, while acting within the scope of its constitutional powers still violates the constitution

because it has violated some principle of state sovereignty?

- Two approaches:

•••• NOT a separate constraint. A reminder to congress that is must act within its enumerated

powers. Under this approach laws are NEVER unconstitutional under the 10th amendment

but are because congress has exceeded the scope of its power or violated some other

constitutional provision.

•••• 10th amendment protects state sovereignty from federal power. Makes 10th amendment

the safeguard of federalism & states rights. Reserves certain activities for the states.

- Court has oscillated between the two approaches and in the 1990s settled on the second one.

- 10th amendment raises two constitutional issues:

•••• How important is federalism & state sovereignty?

� When the court does protect state interests there are 3 rationales for it:

• Decreasing chances of federal tyranny. Framers envisioned governance

occurring at the local level with rare federal intervention. Increased

government power seems counter to this. However, judicial review is a

check.

• Enhancing democratic rule by allowing government closer to the people.

States are closer to the people & better to reflect their needs and concern.

However, greater danger of 1 happening because of factions or special

interest control.

• Allow states to be laboratories for new ideas. States can try things without

risk to the rest of the country. When does the interest of federal regulation

outweigh interest of the state experimentation?

•••• Should the court protect state sovereignty or let the political process correct it?

� Is the court the appropriate vehicle for protecting state sovereignty?

• Judicial enforcement is unnecessary because the political process protects

states. Interests are represented on a federal level. This is debatable

because Senators are now popularly elected & voting decisions are made on

issue of national importance not on state interests.

- 10th amendment in the 19th century

•••• Viewed as a reminder of Congress’ constitutional limits� approach 1; sole check on

Congress’ power; once Congress is working within the scope of its power its allowed to

legislate as if no states exist.

� Seen in Gibbons v. Ogden� as long as Congress is acting within its commerce

power, the law will not be deemed a violation of state sovereignty.

- Late 19th century to 1937

•••• Court moved to approach 2. Reserved a zone of activities that belonged to the states alone.

•••• Hammer v. Dagenhart�violated Congress’ power in 2 ways-exceeded commerce power &

10th amendment. Regulation of movement of goods made with child labor; struck down

because Congress was regulating things entrusted to the states; argued it would destroy


federalism if Congress was allowed to do so. 10th amendment used to limit commerce

power.

- 1937-1990s

•••• Court rejected approach 2 and went back to approach 1

•••• United States v. Darby� overruled Hammer; said 10th amendment is a truism and nothing

more. Law is constitutional as long as Congress acts within the scope of its power. Said that

express control of production is not reserved to the states.

•••• Hodel� distinction between Congress regulating state governments and private activities

•••• Usery� Congress was regulating states & private entities alike. Act cannot be applied to

people performing traditional state functions. If you can identify something as a

traditional state function then Congress cannot interfere.

•••• Garcia overruled Usery which established the test for 10th amendment violations on the

idea that the court should engage in line drawing. Two reasons (1) it’s unworkable to

appraise whether a government practice is traditional or integral. Forces court to decide

what state policies it does and does not like (2) protection of states should occur through

the political process.

- 1990s & Beyond�� COURT SETTLES ON 10TH AMENDMENT AS SAFEGUARD OF FEDERALISM

1. Gregory v. Ashcroft

- Court used the 10th amendment as a rule of construction. Law that imposes substantial burden on

state governments will only be applied if it’s clear- that the law is supposed to apply.

- Majority opinion emphasized importance of state autonomy and 10th amendment as protector of

sovereignty.

•••• Lengthy discussion of the value of federalism.

- Court does not say Missouri law is unconstitutional but that if Congress is going to interfere in

area of state sovereignty then it must do so clearly. Had is specifically said judges it would have

been fine.

- USERY WENT AWAY BUT NEVER REALLY ENTIRELY. NEW FEDERALISM REVOLUTION BEGAN WITH

NEW YORK V. UNITED STATES.

2. New York v. United States�� PART OF FEDERALISM REVIVAL & adoption

of approach 2

- Court explicitly used 10th amendment to overrule federal law. Court held it was impermissible to

impose things on the states. Congress cannot coerce the states. 10th amendment limits Congress’

power. Compelling government interest is not enough to save law that would otherwise violate

the 10th amendment.

- What is the source of the principle that you cannot commandeer the state legislature?

•••• From this case we get that the 10th amendments limits are not just textual

- 3rd incentive about taking title to the waste is the one in question- one that forces the states to

take title of the waste. Not a significant argument being made that Congress did not have the

power to create regulatory schemes in the scope of its commerce power.

•••• Issue here is whether there is a sovereignty based issue. Court talks about 10th amendment

being a tautology but talks about whether there is a structural principle of sovereignty it

embodies that Congress may violate even if within the scope of its commerce power.

- Talks about the progress from the articles of confederation to the constitution and how the states

retain some sovereignty that congress cannot violate. Congress’ power is over people, not states

(historical argument)

- Policy argument� problem with telling states what to do blurs the line of accountability

- Fact that NY consented is irrelevant here� cannot waive your sovereignty.


- National interest argument� no national interest no matter how great allows Congress to legislate

outside its power

- White’s dissent� we need the political process to sort out those things that the structural

argument presents. White has a very hands off approach.

- There is some structural principle that the 10th amendment embodies. How does this square with

the other cases? � Hammer is still bad law but in Lopez we get the notion that there are still some

areas that the state controls that Congress does not interfere with.

3. Printz v. United States

- ISSUE: Brady hand gun violence act requires state & local law enforcement to conduct background

checks on potential buyers� does this violate the 10th amendment? � YES

- Majority opinion by Scalia

•••• Start out with the view that there is no constitutional text that relates to this so the court

has to look to historical, constitutional structure, and jurisprudence.

� Historical: rely on old statutes that compel judges to act but judges aren’t

executive officials.

• Why does the fact that its state judges weight in at all? Court is trying to

see if this had been done before to see if it is recognized as being

permissible.

• Normally the absence of an exercise of power is not taken to mean

anything about the original power. This power thought is so attractive that

has congress believed they could exercise it they probably would have.

•••• Structural: makes dual sovereignty argument- federalism and separation of powers.

Congress can act on people, not states.

� Separation of powers argument. President has power to faithfully execute the laws.

If you give this power to the state executives you are eroding power. Scalia argues

framers wanted unity in the executive BUT that does not comport well with the

modern form of government and the way it works.

•••• Prior Jurisprudence: rely on New York- ruling does not allow Congress to command or

compel states (including legislative & executive officials

•••• Federalism argument: said congress was commandeering state officials to implement

federal mandates.

� Reaffirmed idea from New York that you cannot compel states to do things and an

attempt at such is a violation of the 10th amendment.

� IMPORTANT TO NOTE� In New York, the court told Congress it could not

commandeer STATE LEGISLATURES. This case expands that idea to STATE

EXECUTIVE OFFICIALS.

� Said that the Brady Handgun Act violated the 10th amendment & Separation of

powers

• Separation of powers argument: the president, as the executive, has the

responsibility & power to execute the law. By placing the power to execute

the Brady Act in state executive officials, Congress is giving away the

President’s power. If congress can act effectively with or without the

President, then unity intended by the Framers would be shattered.

- Dissent by Stevens: disagreement with the premise in Printz & New York


•••• When Congress is exercising its delegated powers it can impose affirmative obligations on

both executive and judicial state officials.

•••• Also focused on the need for the Brady Act because of the prevalence of gun violence.

- QUESTION RAISED�� majority says the no case by case analysis of the burden on the official

should be allowed. Would this mean that the Brady Act & a statute requiring notification of a

missing child would both be unconstitutional?

•••• Should there be a difference between a simple function &something purely ministerial?

Not saying O’Connor is right but is Scalia right when he says the burden doesn’t matter

and no case by case evaluation?

ii. The 11th amendment

- Sovereign immunity� based on the supreme court’s interpretation of the 11th amendment

•••• Based on interpretation this means suits against state governments in law, equity, or

admiralty brought by a state’s citizen, citizen of another state, or foreign country, cannot

be brought in federal court. To sue a state in state court you need the state’s permission.

- Sovereign immunity derives from the structure of the constitution itself and the 11th amendment is

an embodiment of that.

- Sovereign immunity insulates the state actions from federal review and could allow violation of

basic constitutional principles if the 11th amendment is read broadly.

•••• Addressing this, the Supreme Court has come up with ways to get around this broad

reading. Must balance interests of protecting state autonomy with proper compliance with

federal law.

- NO AGREEMENT EXISTS OR THE PROPER SCOPE OF THE 11TH AMENDMENT

- Policy issues:

•••• Role of the judiciary: some argue that sovereign immunity is a principle which predates the

constitution and is embedded in its structure. On the other hand some believe it’s not

anywhere in the constitution & wasn’t intended by the Framers. Idea that it favors

immunity over accountability and is inconsistent with the idea of government. People can

be deprived of basic guarantees by the states & have no remedy (no due process).

� on one side of the argument there is the idea that sovereign immunity puts trust

in government whereas the other side says trust has no place in the equation.

- BIG QUESTIONS

(1) ARE STATES “IMMUNE” FROM SUITS BY PRIVATE PARTIES IN FEDERAL COURTS?

a. Article III, sec 2 of the constitution� first half is federal question jurisdiction and the

second half is federal diversity.

i. Issue with diversity cases��can the state be either the defendant or the

plaintiff or just a plaintiff?

b. Ratification debates�� sovereign cannot be sued comes from English Common Law.

Does the constitution upset this notion?

i. Article III & Sovereign Immunity: article III allows suits between a state & a

citizen of another state and between a state and a foreign citizen. 11th

amendment modified this.

1. Question of whether article iii was meant to override sovereign

immunity. No proof that there was debate about this at the

constitutional convention. State conventions did have debate about

whether or not it did away with sovereign immunity.

a. Those who objected to the constitution believed it did get rid

of sovereign immunity.


b. Those who supported the constitution argued that article iii

didn’t override sovereign immunity and that states could be

sued in federal court with their consent. Others said that we

needed to hold states accountable others that it’s not an upset

of sovereign immunity. (Madison said article iii allowed states

to come to court as plaintiffs but not as defendants without

their consent).

c. Chisholm v. Georgia� 11th amendment was passed to overrule this decision

� Facts: a South Carolina citizen attempted to recover money owed to him by

Georgia for material supplied during the revolution. Sued in Supreme Court under

the provision of the judiciary act of 1789 which creates original jurisdiction for

cases against a state by its own citizens or those of another state.

� Plaintiff’s attorney claimed article iii allowed suits from citizens of another state.

� State didn’t appear in court because it thought the federal court would only

jurisdiction if it consented to be sued.

� Court said that article iii allowed a citizen of another state to sue a state.

� All the justices in the majority were on the ratifying committee� what does this

say about the force of this interpretation of Article III?

� Dissent: judiciary act does not allow suits against states & article iii’s language did

not permit the suit

d. Ratification of the 11th amendment�� is it a narrow overruling of Chisholm which only

deals with diversity cases? Seems to be tracking ONLY THE DIVERSITY CLAUSE OF

Article III. Does it deal with sovereign immunity in ALL cases?

(2) DOES THIS IMMUNITY APPLY ONLY IN DIVERSITY CASES, OR ALSO IN FEDERAL QUESTION

CASES?

a. Open issues after Chisholm & its aftermath ��(1) Are federal question suits where a

citizen or state X sues state Y also banned?(suit is federal question but diversity exists

as well) (2) Are federal question suits where citizens of state Y sues state Y also

banned? (federal question but no diversity)

i. Hans v. Louisiana

• 11th amendment is not the sole constitutional basis of state immunity from

suit.

• 11th amendment was error correction of Chisholm, which failed to

recognize that state sovereign immunity limits the entire jurisdictional

grant to the federal judiciary.

• Just as individuals cannot be sued without their permission neither can

states. Unless waived, immunity stays with the state.

- In this case, the court adheres to the view of sovereign immunity held by Madison, Hamilton, and

Marshall citing their identity as Framers. NOTE is Chisholm, the majority consisted of Framers as

well. Why value the opinions of Hamilton, Madison, and Marshall over that of the court in

Chisholm?

(3) MAY CONGRESS “ABROGATE” STATE SOVEREIGN IMMUNITY, AND IF SO WHEN?

a. Fitzpatrick v. Blitzer (1976)�� congress may abrogate under Sec.5 of the 14th

amendment

b. Pennsylvania v. Union Gas (1989)��Congress may abrogate under the commerce

clause


c. Seminole Tribe (1996) (statute that allows Native American tribes to sue the state. Says

it was created under the Indian commerce clause and that the clause allows Congress

to abrogate state sovereign immunity)

� Majority: congress lacks the power to abrogate immunity under the Indian

commerce clause. Overrules Pennsylvania v. Union Gas Co.

� MAIN QUESTION��WAS THE ACT PASSED WITH A VALID EXERCISE OF POWER,

AND ONE THAT ALLOWS CONGRESS TO ABROGATE POWER?

• Says Union Gas does not follow stare decisis.

o Stare decisis� want to ask if opinion is workable, is there a

majority rationale for it?

• Steven’s dissent: even though he finds the statute curious, there are other

things that come into play.

• Souter’s dissent: sees question of whether principle of sovereign immunity

exists as distinct form question of whether congress can abrogate. Critique

says Hans opinion starts out with premise that 11th amendment applies

across the board but Framers statements only refer to diversity cases. Not

sure what role the background principle of sovereign immunity plays here.

- SEMINOLE SAYS POWER TO ABROGATE ONLY EXISTS UNDER §5 OF THE 14TH AMENDMENT NOT

UNDER THE COMMERCE CLAUSE. ALL STATUTES THAT DID SO NEEDED TO BE REWORKED. CAN

ONLY ABROGATE UNDER THE ENFORCEMENT CLAUSES OF THE 13TH -15TH AMENDMENTS. For laws

passed under §5 of the 14th amendment, the court must first determine if the law is a valid

exercise of the enforcement power and if YES then the state can be sued.

(4) HOW FAR DOES SOVEREIGN IMMUNITY EXTEND?

•••• Immunity from suit applies in state as well as federal court (Alden v. Maine)

•••• BUT NOTE: suits can proceed against state officials carrying out state policy� the authority

of the state cannot cloak you. (If it will lead to significant payment of damages out of the

state treasury it will not be allowed to proceed); localities lack immunity; states are not

immunized from suits initiated by the federal government; states may waive immunity

(conditional spending legal demands it); congress may still abrogate a state’s immunity

when exercising its “enforcement” power under the 14th amendment.

5. Federalism-Based Restraints on Other National Powers in the 1787 Constitution

a. The Taxing Power

b. Spending Power as a Regulatory Device

c. War, Foreign Affairs, and Federalism

d. Treaty Power

6. Federal Limits on State Power to Regulate the National Economy

a. Privileges and Immunities Clause of Art IV

- Question��Does the Constitution only protect those rights that are enumerated or are there

other rights that should be protected? - The Slaughterhouse Cases��effectively wrote the privileges and immunities clause out of the 14th

amendment�� issues raised here are federalism (what does the federal government get to

legislate against?) & separation of powers (what role does the court play in all of this?

incorporation)

•••• Difference between Article IV privileges and immunities clause and 14th amendment

clause


� Article IV, Sec 2.: the citizens of each state shall be entitled to all privileges and

immunities of citizens in the several states� can be read to mean the entire

country

• Can be read as a non discrimination clause or rights against your own

state meaning there are fundamental natural rights

� 14th amendment: no state shall make or enforce any law which shall abridge the

privileges and immunities of citizens of the United States

•••• Argument that changing the in to of makes it sound like a non discrimination provision

which is only referring to rights protected by the states.

� If you import the privileges and immunities mentioned in Art. IV into the 14th

amendment then you are giving the federal government the state’s power.

- Reading of the 14th amendment in this case is so narrow that it includes only those things that are

already protected, are basically reading this provision out of the constitution. Court reads the

provision as purely anti discrimination protection�rights conferred by state citizenship.

•••• Modern scholars think that the privilege and immunities was believed at least to

incorporate the Bill of Rights (some believe that there are other rights which all under here

as well)

7. Separation of Powers Problems

a. Executive Power in Foreign Affairs

i. Executive Agreements

ii. The Commander in Chief Power

b. Congressional Encroachment on Executive Powers

i. Congress & the President in the Legislative Process

1. Nondelegation

- Idea that federal agencies created by congress have legislative power to make rules, executive

power to enforce them, and the judicial power to adjudicate them� counter to the notion of

separation of powers

- Non delegation doctrine�Congress may not delegate its legislative power to administrative

agencies. Congress is forced to make policy choices because it is politically accountable.

•••• Horizontal delegation from Congress to the President makes vertical delegation from the

states to Congress more meaningful. Overtime there has been a lot of transfer of power

between the states and Congress.

- Concern with delegation is the vagueness of the mandate and the breath of the agency’s work.

- Cases leading up to Mistretta� is there some intelligible principle which controls the agency’s

activities? If yes, then the delegation does not violate the non delegation principle.

•••• This idea comes from J.W. Hampton Case��if congress lays down an intelligible principle

which the President must follow then it is not an unconstitutional delegation of power.

- Two New Deal Cases: Panama Refining & Schechter Poultry: both found no intelligible principle

with the delegation. Last two cases where a delegation was found to be unconstitutional. Since

then all delegations no matter how broad have been upheld.

•••• Mistretta v. United States�� FUNCTIONAL APPROACH TO SEPERATION OF POWERS

� Court says Congress did not delegate too much power and that there is an

appropriate intelligible principle.

� You have to take into account the inherent need for government coordination

when determining whether the delegation is unconstitutional. Delegation in this

case is sufficiently specific and detailed.


� Question about role of the court��is the phrase intelligible principle guiding

enough in helping the court decide what is or is not an intelligible principle? Do we

keep the standard or get a tighter one? Can’t the court just find an intelligible

principle in anything? It’s a possibility & is a problem inherent in the idea of an

intelligible principle.

� Scalia’s dissent: says that an unconstitutional delegation is a fundamental part of

our system but it’s not readily enforceable by the courts. Saying agency is

essentially acting as a junior varsity congress.

2. The Legislative Veto

- As a check on administrative agencies, Congress will allow itself the freedom to override actions of

the agencies by a resolution of one or both houses of congress

•••• INS v. Chadha�� declares the legislative veto unconstitutional; FORMAL APPROACH TO

SEPERATION OF POWERS

� Two Theories as to why the legislative veto is unconstitutional; both are formalist

approaches based on the idea that you can compartmentalize the powers of the

branches

• Theory 1: HOR cancellation of the is LEGISLATIVE & must comply with

bicameralism & presentment (what is primarily discussed in the opinion)

o Raises question of why AG’s action isn’t legislative as well.

o How does it square with theory 1 that the initial statute which

gave Congress the power of the legislative veto satisfied

bicameralism and presentment?

o Since legislative veto doesn’t meet these requirements it is

unconstitutional. This idea is overbroad because a lot of things

don’t meet these requirements but are still considered legislative

acts of Congress.

� What flows from the formalist approach is the idea that

you don’t want jurisdictional lines to be crossed and you

want to prevent active comingling.

• Theory 2: Attorney General’s suspension is EXECUTIVE & HOR can’t

interfere with it. (this theory is the best way to understand the case

according to Bellia because 1 is a bit questionable)

� Majority was formalistic whereas the dissent was functional; should the approach

to separation of powers be one that looks heavily at the form of the constitution

or should it be one which looks at the functional justifications for things that raise

issues of separation of powers?

� Whites’ dissent: Functionalist approach sees no problem with comingling but sees

it as a problem when one branch is interfering with another. Has a much more

flexible approach to separation of powers problems. Says that Congress has agreed

to uphold the Constitution so it’s a waste of the court’s time to police their actions.

The constitution does not contemplate the branches working separately. The harm

to be avoided is not comingling but excessive encroachment and aggrandizement

that leads to interference of carrying out functions. Have to permit structural

innovations to get things done in changing circumstances.

�

3. Appointment, Removal, and Limitations on Presidential Control

8. Post-Civil war Amendments and Civil Rights Legislation: Private Conduct, Congressional Power to

Implement Amendments


a. Congressional Power to Reach Private behavior, Guest, 1968 Law

b. Reaching Private Action Under the 13th Amendment

9. Substantive Due Process�� limitations on both state & federal power

- Idea that due process isn’t just procedural but that there is some sort of substantive component to

it.

a. The Progressive Era

- Two differing accounts of the progressive era due process cases:

•••• Former standard account was that the court had a laissez faire approach to economics

whereas the legislature did not & wanted to regulate things

•••• New account of these cases is that the court was trying to smoke out special interest

legislation and particularly that which transferred wealth from one party to another- that

which benefitted one class of people over another. (example: Lochner- bakeries with strong

unions. State was trying to make smaller bakeries comply with union standards so they

wouldn’t undercut the more established bakeries)

i. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago��does it strengthen

the 14th amendment for the court to evaluate just compensation in this way

instead of using the 5th amendment which has both a due process clause & a direct

bar from taking private land without just compensation?

- Early case where the idea of substantive due process emerges. Is an early takings case but it is not

an incorporation of the 5th amendment takings clause. What is going on here is the notion that

there is something substantive to DUE PROCESS� the just compensation provision to which they

refer is not the same as used in the 5th amendment.

ii. Lochner v. State of New York�� NY state law regulating the length of the work

week for bakers; REPRESENTS CLASSIC FORMULATION OF SUBSTANTIVE DUE

PROCESS

- Court declared the law unconstitutional because it violated the due process clause of the 14th

amendment because it violated the freedom of contract & was not a valid exercise of the state’s

police power

- Three major principles emerged from this case that were followed until 1937 (changed by West

Coast Hotel v. Parrish)

•••• Court held that the freedom of contract is a basic right protected as liberty & property are

by due process under the 14th amendment. Included in this right is the right to contract

out ones labor & contract for labor.

•••• Court said that the government could only interfere with freedom of contract to serve a

valid police purpose- protect the public health, safety, or morals�� court says there has to

be PROOF it serves a valid police purpose.

� Bakers do not represent a special class of people that needs to be protected.

� Is it a valid law with respect to health of the bakers? � Slippery slope argument

about what would happen if the legislature could regulate work day on the basis of

health concerns- could then claim that they could regulate any profession on the

basis of health.

•••• It is the role of the judiciary to carefully scrutinize legislation that interferes with the

freedom of contract to ensure that it serves a valid police purpose.

- Issues raised in the dissents: need for the judiciary to defer to legislative choices; rejection of the

fact that the majority premised their argument on the idea that the constitution should be used to

limit the government’s regulation & protect a laissez faire approach to the economy.

iii. Muller v. State of Oregon�� law setting limits on work days for women & imposing

fines on violators


- Law in Muller is found to be constitutional�� way to reconcile Lochner & Muller is to think about

the fact that the legislation in Muller is not considered special interest legislation because it

applies across the board, not just to some employers.

- Court addresses issue of right to freely contract by saying this is one of those cases where the state

may rightfully use its police power to limit the right to freely contract.

•••• In this case, the court applies the Lochner framework and finds that the maximum work

week legislation serves a valid police purpose because of the health concerns that arise

from women working long hours in tenuous labor.

iv. Adkins v. Children’s Hospital of District of Columbia�� state minimum wage laws

for women�� UNCONSTITUTIONAL

- Court differentiated regulation of work hours from regulation of pay� was an interference with

the freedom of contact BUT because it did not serve a valid state police purpose, it was an

unconstitutional interference.

•••• Court’s rationale is that the differences between the sexes is vanishing & that under the

minimum wage laws, women are being denied the right to contract with both other women

& other men.

- Adkins versus Muller�� in Adkins & Muller it’s hard to see the difference between regulating

wages & regulating hours. The difference has to do with transferring something from one person

to another. Employer should not have to bear the burden of society’s indigence. Courts are on

the lookout for transfer from one party to another and class legislation.

- Lochner & cases like it are no longer good law-criticism of these cases:

•••• Some debate as to whether the rights protected under these cases were the correct rights

to be protected with substantive due process�additionally the idea that the government

should be able to legislate for more than the public health, safety, and morals. Government

should be able to legislate on a wide range of topics when regulation is needed and the

freedom on contract should not serve as a bar to this necessity

•••• Institutional critique- why is it the courts job to give this content to these laws? Do they

have more authority to do this than anyone else? Idea that unelected judges are unduly

substituting their views for those of the popularly elected representatives. Focus is on

courts readiness to invalidate democratically enacted laws.

•••• Issue of whether there is any consistency in the Lochner era rulings. Traditional argument is

that it was a laissez fair approach, but looking closely, there may actually be consistencies.

b. New Deal (& Post New Deal) Court

i. Initial shift in ideals expressed in Lochner�� Contracts Clause��Home Building &

Loan Association v. Blaisdell (defines the scope of the contracts clause since 1934)

- Facts: Minnesota statute imposing a moratorium on foreclosures of mortgages even though most

mortgage contracts left the lenders foreclosure as a remedy.

- Decision & Main Points: Court upheld and statute & said that the Framer’s intent for the contracts

clause was irrelevant. Majority argues that the constitution must be adapted to changing times &

situations because Framers may not have foreseen current conditions. Says that law changes the

remedy but does not alter the enforcement of the contract. Justice Hughes considers relation of

emergency, development of jurisprudence on commerce clause.

•••• Opinion suggests that the constitution should be changed when context changes

- Reaffirms idea that the government can interfere with contracts if for a valid government

objective.


•••• Not a substantive due process case, but coming right before the cases which overturned

Lochner & its progeny, Blaisdell shows the New Deal Courts willingness to defer to the

legislature in the realm of economic regulation.

ii. Presumption of Constitutionality��West Coast Hotel v. Parrish��OVERTURNS

ADKINS

- Facts: minimum wage law for women in Washington� UPHELD

- Decision & Main Points: protection of women is a legitimate end of state power. Adkins ruling is a

departure from the true application of the principles governing the regulation by the state of the

relation of employer and employed.

- Explicitly rejects the Lochner line of analysis and says that regulation which is reasonable in

relation to its subject and is adopted in the interests of the community is due process. Referring

back to deferential approach seen in McCulloch. Rationality presumption in acts of legislature

which warrants deference.

•••• Government is not limited to regulating to protect the public safety, morals, and health�

now recognizes a need to protect against unequal bargaining power.

- Will no longer protect the freedom of contract as a fundamental right. Government can regulate to

serve any legitimate purpose & the court would defer to the legislature’s choice as long as it’s

reasonable.

- Dissent is saying there needs to be judicial consideration of the statute. Court needs to be the final

arbiter.

- If the constitution stands in the way of desired legislation, then the constitution must be amended.

- Announcing a general policy of deference to Congress in laws dealing with liberties and public

interest

iii. Qualifying the Presumption of Constitutionality��United States v. Carolene

Products Co. (reaffirms new policy of judicial deference to the government in

matters of economic regulations which was put forth in West Coast Hotel)

- Facts: statute outlawing filed milk- mixture of milk & vegetable oil�UPHELD

- Decision & Main Points: Economic regulations should be upheld as long as they are supported by

a conceivable rational basis even if that is not what the legislature actually intended.

•••• Existence of facts supporting the legislature’s judgment is to be presumed and court is to

defer to them unless it’s clear there is no rational basis.

- Footnote 4��double standard of review: courts will generally presume that laws are constitutional.

However, this deference would be replaced by a more searching judicial inquiry when it is a law

that interferes with individual rights, or a law that restricts the ability of the political process to

repeal undesirable legislation, or a law that discriminates against a discrete and insular minority.

•••• This is now what governs our notion of judicial review. In most cases economic interest

law will rarely be interfered with.

- Presumption limits courts need to investigate the intent of the legislature

•••• Raises questions about what the legislature as opposed to the judiciary are best equipped

to deal with

- FOOTNOTE 4 COMES INTO PLAY IN §5 OF THE 14TH AMENDMENT AS WELL.

10. Equal Protection

•••• What is the classification? How is the government distinguishing between people?

� Classification exists on the face of the law. The law in its very terms draws

distinctions among people based on characteristics.

� Law is facially neutral. BUT there is some discriminatory impact to the law or

discriminatory effects from its administration


• If the law is facially neutral, showing a racial or gender based

classification must have proof that there is discriminatory purpose behind

the law.

•••• What is the level of scrutiny?

� Strict scrutiny. Discrimination based on race or national origin. Under strict

scrutiny, a law will be upheld only if it proved necessary to achieve some

compelling government purpose. Must also show that it cannot achieve its purpose

through any less discriminatory alternative.

� Intermediate scrutiny. Used for gender discrimination. Law is upheld if it is

substantially related to an important government purpose. Government must be

able to characterize its purpose as important. Law must bear a substantial

relationship to the end being sought.

� Rational basis test. Minimum level of scrutiny. A law will be upheld if it is rationally

related to a legitimate government purpose. Government’s objective need not be

compelling or important, but just something the government may legitimately do.

BIG THEMES TO TRACK OVER THE COURSE

Things that tract across the different historical eras

a. Modalities of interpretation & what ways are legitimate?

b. Judicial review & judicial supremacy. We know it’s ok for the court to step in and declare

whether things are unconstitutional. Is the court’s decision authoritative or is it supreme?

What can the president & congress do to interpret the laws in their own way? Majority

approach is judicial supremacy & the other is departmentalism which allows each branch

to interpret the law.

c. Interpretation of the constitutions text versus fundamental principles. Calder v. Bull.

Notion of whether it’s ok to have natural rights out there

d. Constitutional versus the product of popular sovereignty versus a compact between

states.

e. Political safeguards of federalism��species of the who decides question. There are

political structures that in the political process concerns about federalism will be taken

into account & the court doesn’t need to police it along the way.

f. Deference�� what deference do you give to the political branches in their factual

determinations


Documents

Constitutional Law – Professor Patricia Bellia, Spring 2008ndlaw/pad/outlines2/PAD ConLawOutline... · 1 | C o n s t i t u t i o n a l L a w O u t l i n e Constitutional Law –