Bicameral legislature w/ one proportional and one equal house 

- VA and NJ plan solved great compromise, one house voted by people and other house elected based on pop of state 

- Submit a list of proposed amendments with their ratification 

- Members of MA Congress instructed to support 

- 100 proposed amendments 

HOLDING - right to a commission (Yes), Remedy (Yes), Writ of Mandamus - (Yes), Writ from S.C. (No)

- Judiciary Act of 1789 - limits S.C. to appellate jurisdiction (a few exceptions)

- Writ of Mandamus only exercised when Court practicing Original Jurisdiction (Kobach dissents)

Marybury v. Madison (2) 

Broad Statute, Narrow Construction 

1. Marshall = Judiciary Act should be read broadly and Writ of Mandamus only available in cases of Original Jurisdiction

2. Intentionally setting up Constitutional Conflict - so he can exercise judicial review

3. Surplusage Argument - grants Supreme Court Original Jurisdiction "in all other cases, S.C. shall have appellate jurisdiction" - Exclusive list of S.C.'s jurisdiction

4. Constitution trumps simple law - Judiciary Act of 1789 is UNCONSTITUTIONAL - and S.C. has no jurisdiction to hear case in first place  

1. Art. 6 Sect. 1 C13 - oath of office clause - Justices swear an oath to uphold the Constitution (weaker)

2. Art 3, Sect. 2, C1.1 - Judicial power should extend to all cases - S.C. should interpret Constitution 

3. Original intent - should have been made - what did framers want 9-11 times judicial enforcement of COnstitution is discussed it is favorable 

1. Constitutionally Explicit 

2. Constitutionally Implicit 

3. Constitutional Structure 

4. Framers Intent 

5. Constitutional Policy 

6. Public Policy 

1. Repetitive - Fed. Government powers already enumerated 

2. People are protected against specific intrusions, implies gov't powers extend into those areas 

3. 8/13 colonies/states had own 

4. Would imply a lack of protection for omitted rights 

5. burdensome and expensive to hash out 

6. rights already come from the people

9th amendment means almost nothing 

- less important than governmental structure with divided power 

- by separating powers you limit the risk that one brach could do much to limit liberties

- enumerating them is far less important then having the underlying structure 

- if no BOR - we would be where we are where Brits are 

1. immensely popular with people 

2. Madison became a supporter 

- 200 suggsted 

- 9th am drafted to address "omitted rights" raised by Anti-Federalists

- 10th is a protection from States 

- Baltimore - biggest port, Barron owned

- City ruined harbor - Barron sues 

- City violated his 5th am. right of taking property w/out just compensation (rendered property value less)

- HOLDING - 5th amendment ONLY as a limit on power of Fed Gov't and not applicable to the State Gov. 

- Constitution specifies which parts apply to State 

1. Until 1868 - passage of 14th am

2. Until 1937 - landmark cases

3. Until now 

- LA law creates a slaughter-house monopoly 

- Slaughters could use but had to pay 

- Butchers excluded from Slaughtering claim law deprived of 13th am. and 14th am (P&I rights)

- REASONING-

-13th- effect of involuntary servitude - Court says only applies to A.A. 

-14th- Diference between Fed and State citizenship

1. Cities Corfield v. Coryell - grants large "bag" of P&I 

2. Federal P&I are narrowly defined - forbids states from interfering with those rights of citizens of the U.S. - right to travel, rights on high seas, etc. 

1. Broad - includes all fundamental liberties that free people enjoy

2. Intermediate - Refer to 1st 8 Amendments of the Const.

3. Narrow - limited list of rights; that it is a tiny list of privileges that relate to citizens protections by fed gov't  

1 at a time - the court should approach each right and see if they apply to the state 

- Cardozo in Palko Case (tried to incorp double jeopardy so states)

- ASK: Is it a fundamental principle of liberty and justice which lies at the base of our civil and political instructions OR of the very essence of a scheme of ordered liberty?

THEN INCORPORATE 

WON OUT

Black = first 8 Amendments 

Palko = natural law, holds that there are some rights we have from the DIVINE, innate in humans = TOO SUBJECTIVE, What is fundamental? 

- But - still leaves room for interpretation, b/c definiteness of the terms of even the rights enumerated in the first 8 amendments are open to interpret 

14th Amendment - Substantive Due Process

Substantative Due Process - guarantees -

1. Process/Procedures

2. Some substantative rights that gov't cant infringe upon regardless of the procedures used

Congress shall make no law respected the establishment of RELIGION 

- at time of enactment - states had "State Religion" or specifically barred state religions 

Thomas Jefferson - 1802 letter to Conn. Church, can never have a total wall of separation b/c churches are civic institutions 

- NEVER COMPLETE SEPARATION, ALWAYS SOME OVERLAP 

- keep in mind fire services, police services, complain with zoning, building and TAXES 

Lemon v. Kurtzman - GOOD LAW (can Superintendent of Public Schools reimburse nonpublic schools for teachers who taught secular material?)

- used to determine if the state law/gov't action is constitutional 

ELEMENTS 

1. Gov't must have a secular purpose 

2. Primary effect is not to advance or inhibit religion

3. No excessive entanglement b/w gov't and religion 

*disliked by Judges*

(LA Creationism Case)

- "balanced treatment for creation-science and evolution science" forbade teaching of evolution for public schools w/o ALSO teaching creationism 

- Primary purpose is to ADVANCE a particular religious belief, the Act endorses religion in violation of the 1st Am. 

- Fails both prongs = secular purpose and excessive entanglement 

- Wants to eject the "purpose" prong 

- Never 1 intent of legislature OR ability to interpret purpose 

-Entanglement Prong is problematic 

1. Would a reasonable neutral observer regard the state law as an endorsement of religion? 

2. Alternative to the Lemon Test, its a modification of the 2nd prong of the Lemon Test 

(Court invalidated anti-evolution law)

- Cant prohibit = not behaving neutrally 

- Black's dissent = Evolution isnt neutral either, anti-religious 

State payment of transportation to parochial schools - NOT violation of Establishment Clause 

- Program is neutral in assisting = PARENTS CHOICE 

- money goes to parents not school 

- MAJORITY compares to fire & taxes 

Minnesota allowed tax deduction for tuition, books, etc. for both public and nonpublic schools 

- UPHOLDS - NEUTRAL, parents have an intervening choice 

- Lemon Test = "primary effect must be secular" - fulfills public purpose of education and is available to everyone 

Dissent = directly leading to teaching of religion = fails prong 2 of Lemon Test 

(public schools do not require tuition, only helpful for private school parents)

VOUCHERS (OH establishes a pilot program designed to provide educational choices to families (46 of 54 were religious)

- NO = NEUTRAL, provides choice to parents, assistance directly to a broad class of citizens in a failing school district 

- no encouragement to go to religious schools 

Student giving football game solemnize (prayer)

- VIOLATION = School sponsorship of a religious message is impermissible

- Court used Coercion Test of Lee v. Weisman (graduation prayer) 

"Under God, in pledge" - Barnette says you cannot force someone to say pledge 

FAILS - pledge faills all 3 tests (coecerion, endorsement, and lemon tests)

- Lemon Test -Gov't needs to promote neutrality 

- Coercion Test - considering legislative history = more coercive 

Endorsement Test - sends a message that non-religion is for OUTSIDERS 

1. Lemon Test = MOST USED (judges dislike)

2. Coercion Test (Lee - graduation&prayer, forcing someone to partake in religion of state's choosing)

3. Endorsement Test (O'Conner, modification of 2nd prong of Lemon Test)

(Right to Parent (Due Process) v. Free Exercise) 

- Amish did not agree with 16 y/o mandatory schooling 

- VIOLATION - lacks compelling state interest for not granting exception to the Amish 

- COMPELLING INTEREST TEST (from Sherbert) 

- STRICT SCRUTINY 

- Gov't has burden of proving compelling interest 

- Necessary (this cannot be served in another way)

ELEMENTS 

1. Necessary (no other way of doing)

2. Compelling interest

(peyote case)  

- Peyote use for religious purpose, against state law 

- DID NOT VIOLATE = legitimate state interest to stop drugs, neutrally applied 

- Uses SMITH TEST 

1. If the law facially restricts/targets free exercise of religion = invalidates, UNLESS - compelling interest is met - Strict Scrutiny 

2. Neutral on its face = generally applicable = minimal scrutiny 

3. Legitimate gov't interest = law rationally related to pursuing THAT interest (Yoder = exception b/c hybrid)

Political speech = PRIMARY CORE of protected freedoms of 1st am. 

(leaflets to draftees)

- NOT VIOLATION of Free Speech = words in circumstance are of such nature to create a clear and present danger, they bring about evils Congress has right to prevent 

CLEAR AND PRESENT DANGER TEST 

Words used in such circumstances AND are of such a nature as to create a clear and present danger they will bring about evils Congress has a right to protect 

i.e. falsely shouting fire in crowded theater 

Narrowest definition of 1st Amendment, only intended to cover prior restraints 

Patterson v. Colorado (no longer applicable)

Speech that has a tendency to cause a bad result or bad tendencies can be regulated

FUTURE DANGER 

Justice Black = All speech 

- NO LAW = NO LAW, no balancing should be done

(Communist Party Convention about draft resistance, prominent politician) 

- Clear and Present danger = covered this speech as well 

- illustrates that any kind of speech could be included 

(P urged Draft resistance, told workers in ammo plants to strike, used flyers)

- "plain purpose of propaganda was to EXCITE" = UPHELD, clear and present danger 

- general strike = danger 

(Reporter at KKK rally)

- Ohio law unconstitutional 

- law can prevent speech that is intended to produce immanent lawless action and reasonably likely to achieve result 

- Ohio law does not provide legitimate reason for suppressing speech 

BRANDENBERG TEST 

1. intended to produce immanent lawless action AND 

2. reasonably likely to achieve desired result 

Replaced Schneck/Abrams test 

(License Plate Case)

VIOLATION = NH may not force display of state motto 

- Passive & Compelled Speech = SPEECH 

- Barnette - less serious than being forced to recite pledge, but passive does not make it any less intrusive 

STRICT SCRUTINY TEST

1. serves a compelling state interest?

identify car = not sufficient 

1. Compelling state interest?

2. Least restrictive means?

(nonunion members forced to pay "service fee" equal to amount of union dues as a condition of employment - challenged by employees who object)

- VIOLATION - cannot be forced to support political speech of the union

- "Right to refuse association" 

- All male organization, claimed anti-discriination law infringed on freedom of association

- Brennan rejected 14th amendment claim, considered under 1st

- dealt with free speech

- O'Connor = commercial speech v. non-commercial speech = lower level of scrutiny 

-Transferring sawed off shot gun across state lines 

- 2nd amendment does not guarantee a private right to keep and bear such an instrument (mainly b/c it was not a weapon used for national guard)

- Left questions unanswered 

- at the time 2nd amendment written, only weapon was militia (muskets and pistols)

Restricted all handguns in D.C. 

- 5-4 decision 

- 1st decision on individual rights v. collective rights 

- individual has a right to possess a firearm outside of militia 

Tx - divorce proceeding prevented Emerson from carrying a gun.  

- Emerson wins halfway. 

- Individual does have the right, but it can be taken away through due process 

Court Rejects 

- Use 2nd amendment as a qualifier, right of people to keep and bear arms qualified as the militia statement 

- Almost all first cases involved state action, not federal action

- Incorporated by the 14th am. 

- where limitations are drawn from 

- "higher law" applied by common law courts

- 

1. Acquisitive Taking - physical land is taken and paid for (eminent domain)

2. Destructive Takings - Gov't does somethings its empowered to do that destroys private land (Barron v. Baltimore)

3. Regulatory Takings - gov't action limits the use of land 

4. Consequential takings - effect is same as regulatory takings (gov't does something to restrict

- Regulatory takings first in Mahon 1810's 

- Brickyard beyond city limits, passed ordinance prohibiting brickmaking 

- NO REGULATORY TAKINGS - before times of regulatory taking 

- Bill passed to stop coal company from mining under P's property, removes support 

- Holding = Property may regulated to a certain extent, if regulation goes too far, it will be recognized as a takings 

- Cant separate police power from eminent domain power, can pass laws to regulate but you have to pay for takings 

RULE - Apply LUCAS, if not applicable apply Penn coal co.  = NOT REG TAKINGS

- New Penn Coal = had to leave 50% of coal

- Not a takings, law did not involve merely balancing private interests but the protection of "public interest in health, environment, and the fiscal integrity of area"

- Distinction b/w old = protecting private v. public interest 

Regulatory takings 

- law required owners of designated landmarks to be kept in "good repair" and to have permission b4 making exterior changes

- When does a regulation cross the line b/w permissible regulation and compensatory takings?

- Courts engage in an AD HOC FACTUAL INQUIRY 

- Zoning laws are noncompensable (Euclid), Pen Coal (Mohan) are compensable

- this case is closer to zoning, not compensable 

1. economic impact of the regulation on the P 

2. the extent to which the regulation has interfered with distinct investment backed expectation

3. character of the government action 

UNLESS LUCAS EXCEPTION APLIES 

- destruction of property constitutes a compensable takings 

- per se rule for regulations denying "all economically beneficial use"

PLAIN RULE 

- Confiscatory regulations - regulations that prohibit all economically beneficial use of land 

- S.C. passes an "anti-erosion" law - outlawed Lucas from building 

- YES A TAKING 

- Scalia = 2 categories (1) regulations that compel property owner to suffer a physical invasion of his property, (2) regulation denies ALL economically beneficial or productive use of land (are there any economical uses left at all?)

- EXCEPTIONS = unless property is already prohibited 

1. Physical invasion 

2. All economically beneficial use is gone 

- Ask if it fits into either 2 categories? = if NO = go to Penn 

PENN FACTORS = (1) economic impact on P, (2) extent regulation has interfered with investment backed expectations (3) character of the governmental action 

Beachfront property in CA 

- state required a public pathway on the beach from their land in order to extend house 

- COMPENSABLE TAKINGS = YES 

- if state wants an easement they have to pay for it 

EQUISATIVE TAKINGS 

- Dolan wants to increase store size 

- City conditioned permit on dedication of portion of property for flood control and traffic improvements 

- TAKINGS = YES, fails on 2nd prong

- Rehnquist articulates ESSENTIAL NEXUS TEST 

1. must be an essential nexus between legitimate state interest asserted and the permit conditions exacted 

2. rough proportionality = b/w demand by gov't and impact of proposed development 

City wanted to take a residential neighborhood  and give to private (Fizer). 

- Is this a public use? = YES 

- b/c benefit is desirable for the public 

Art. 5 = Equal Rep in Senate 

Art. 1  =section 9 protecting import 

manufactured lawsuit

- decides citizenship, no jurisdiction 

- Scott loses 

- Slaves are not citizens = no P&I

Substantive Due Process 

- phrase is an oxymoron b/c it measures procedural process and not the substantive content of laws themselves = doctrine of due substance

- law that unnecessarily or improperly interferes with the fundamental rights of life, liberty and property is so unjust that a legislature violates the concept of due process merely by passing such a statute, even though the procedures were proper in passing the act 

FIRST TIME COURT INVALIDATED A STATE LAW BASED ON SUBSTANTIVE DUE PROCESS GROUNDS

- law prohibiting LA residents from purchasing insurance which doesnt comply with LA law 

- liberty interest to espouse the "liberty to K"

- An abridgement of the fundamental due process liberty of freedom of K is unconstitutional if the law in question does not bear a reasonable relation to a legit gov't purpose 

- NY law limits baking hours - no more than 60 hours per week, Lochner argued right of employee/er to contract for hours 

- RIGHT TO FREELY CONTRACT IS PROTECTED BY 14TH AM

- in order to abridge, there must be a reasonable and appropriate exercise of police power

- SLIPPERY SLOPE - all trades effect health and all trades could be regulated if we allow here 

1. is this a fair, reasonable and appropriate use of police power or is it unnecessary, unreasonable and arbitrary interference w/ the right of the individual to his personal liberty

2. must have a direct relation to and have substantial effect on the health of the targeted group the law effects 

3. this is not MINIMAL SCRUTINY (rational basis)

Harlan - doesnt want the court to be meddling in which laws are good and which laws are bad 

Holmes - courts have no business favoring public policy preferences that are constantly changing 

- dont like the laisse faire result 

Court using its judgment on whether laws are fair or not 

- Peckham is making a public policy argument 

1. a new right to contract your own labor with Constitutional protections 

2. Court inserted its own policy preference opinion without any constitutional authority 

1. Direct Constitutional Text (express)

2. Implied Constitutional Text (implied)

3. Constitutional Structure (separation of powers argument)

4. Original Intent (KOBACH & Scalia's FAV)

5. Constitutional Policy 

6. Public Policy 

progressive social welfare legislation is constantly struck down on substantive due process grounds. EXCEPTIONS

1. Muller v. Oregon - court allows wage and hour law that applies to women. protection for "dependent gender"

 2. 1915 - Coppage v. Kansas - "Yellow Dog" laws that allowed workers to contract away their right to join unions

3. 1917 - Bunting v. Oregon - COURT OVERTURNED LOCHNER IN JUST 10 YEARS 

Price controls are legit so long as they are not unreasonable, arbitrary or capricious and they're within a legit public interest 

- NY fixes prices on milk, N sold milk below price

-Test 

1. is there a legitimate, proper legislative purpose?

2. does the law reasonably further legislature's purpose?

HOLDING - Upheld

- Due process satisfied so long as reasonable relation to a proper purpose and the means used are not arbitrary/unreasonable/capricious

- Right to K not an absolute right 

- price regulations interfere with fundamental right of conducting one's own affairs

- higher prices as prices affect public interest 

Nails hammer in the coffin of economic substantive due process

- challenge to state minimum wage law for women

- Holding - Upheld

- so long as due process is afforded, liberty may be infringed

- Women are exploited by "sweating system" = paternalism is ok

MINIMAL SCRUTINY 

- presumption = gov't laws are constitutional 

- must have legit government purpose

- reasonable or rational basis = "RATIONAL BASIS TEST"

- 

OK law requires prescription b4 grinding glasses, Lee argues right of opticians to practice trade 

- Court refuses to weight wisdom of legislature 

- Upheld regulation 

- STATES INTEREST TO PROTECT PUBLIC HEALTH 

Federal law prohibiting interstate shipment of "filled milk" - consumers may be defrauded 

RATIONAL BASIS TEST - pass minimal scrutiny 

- presumption of constitutionality applied in case of economic regulation for a Due Process attack

- 

1. Legislation that restricts political process - Baker v. Carr

2. Legislation that violates Bill of Rights 

3. Legislation prejudiced against particular religious or racial minorities = Discrete and insular minorities (not NRA)

- 

Ct uses STRICT SCRUTINY when a fundamental right is impaired by a statute --->

1. states interest must be COMPELLING (not merely legit)

2. means must be NARROWLY TAILORED (necessary) to ends they're trying to achieve

Yale Law Professors - to test privacy rights 

- the right of marital privacy extends beyond contraceptives 

- Court prohibited use of contraceptive 

- Planned Parenthood found guilty of assisting 

- DIFF FROM LOCHNER = a person's interest within themselves while Lochner was about a state's interest 

- IF A RIGHT IS FUNDAMENTAL AND NON-ECONOMIC, EVEN THOUGH NOT EXPRESSED IN BOR, ANY INFRINGEMENT OF THAT RIGHT REQUIRES APPLICATION OF STRICT SCRUTINY

applies if there is an encroachment of fundamental rights 

Penumbra 1st, 3rd, 4th amendment evidence a zone of privacy 

BLACK 

- gov't has a right to invade unless prohibited by constitutional prevent

- not mentioned in the Constitution

- DONT EXTEND THE RIGHTS PROVIDED FOR BY THE CONSTITUTION = KOBACH AGREES

Right to privacy in deciding whether or not to bear children 

- distribution of contraceptives decided on basis of EQUAL PROTECTION CLAUSE

- If right to privacy means anything, it is the rt of the individual married or single, to be free from unwarranted gov't intrusion into matters fundamentally affecting a person as the decision whether to bear a child  

- Natural growth of Griswold

- Abortion allowed only to save life of mother 

- 14th AMENDMENT RIGHT TO PRIVACY INCLUDES RIGHT TO AN ABORTION 

- the state has interest in regulating abortion, but not outlawing

- THRESHOLD QUESTION - IS FETUS A PERSON? (Dred Scott Decision) = TRIMESTER

Does a person have a right to an abortion? = YES

Concur

- Stewart - right to beget or not beget a child is inherent in both Griswold - protected by 14th Am

- Douglas - liberty is autonomous control of one's intellect, interests, tastes and personality and even lifestyle 

DISSENT - REHNQUIST

- not a fundamental right to have an abortion

- States have always banned this activity 

- Not about privacy, abortions are performed in public medical spheres, beyond bedroom privacy rights 

Courts Reasoning 

Gov't Interests (1) Pre-natal life, (2) health of mother, (3) discouraging promiscuity 

- TRIMESTER FRAMEWORK 

1. 1st Trimester = women's interest trumps state (potential life not accrued)

2. 2nd Trimester = state has an interest in promoting the health of mom and can REGULATE 

3. 3rd Trimester = Fetal Viability, meaningful life outside of womb, state now has interest in potential human life

Right to an abortion affirmed; trimester framework discarded and replaced by UNDUE BURDEN STANDARD = Abortion is not a fundamental right deserving strict scrutiny 

- 2 PART TEST 

1. Before Viability - NO RESTRICTION OR PROHIBITION BUT undue burden?

2. After viability - state CAN PROHIBIT an abortion 

MAJORITY - Modifies Roe with UNDUE BURDEN requirement to the viability hierarchy established by Roe 

- Drew from due Process Clause from the 4th Am.

FACTORS IN DISPUTE 

1. Informed consent (OK)

2. 24 hour waiting period (OK)

3. parental consent for minors (OK)

4. Medical emergency exception (OK)

5. Spousal notification (NOT OK)

6. reporting to State Health Agencies (OK)

Dissent - Scalia 

- Does not clear ROE = WORSE

- Star Decisis reasoning - keep what you want, throw away the rest 

Dissent - Rehn

- To understand what due process "liberty" look @ American history

- right to abortion is COURT CREATED 

1. has previous precedent proven UNWORKABLE

2. Has RELIANCE on the old precedent has occurred 

3. Has there been an EVOLUTION OF LEGAL PRINCIPLES making the old ruling obsolete 

4. Facts surrounding the issue have changed dramatically 

- NOT THE ONLY FACTORS 

NE makes it a felony to perform partial birth abortions D & X 

- Court used CASEY to strike down ban on partial birth abortion, b/c it contained NO EXCEPTION FOR HEALTH OF MOTHER 

Dissent = Kennedy - Doctors are healers, D&X is infanticide 

Categories it in only the nuclear sense violates fundamental right of familial rights, namely extended families living together 

- CT INVALIDATED 

- States legit interest = preventing overcrowding, traffic congestions, and school burdens.  

COURT APPLIES HEIGHTENED SCRUTINY - means are tenuously related to end

traditional to have extended families under 1 roof

The right to marry is part of the fundamental right of privacy implicit in Due Process Clause 

- Court finds compelling interest to right of privacy in regards to marriage 

- State interest = getting child support, but not least restrictive manner of doing so 

- Separates the poor and indigent class 

1. Extended family living

2. Right to marry

3. Upbrining of child 

4. Abortion 

5. Use and distribution of contraceptives 

Homosexual sodomy is not protected under SUBSTANTIVE DUE PROCESS, neither a traditional right nor a right necessary for continued order of liberty 

- White - criticized judge made rights and imposition of rights not found expressly in the text of the constitution

Forbidden by ALL states at time BOR/14th Am ratified

Focus on homosexuals ONLY allows court to rest on traditional bigotry 

OVERRULES BOWERS V. HARDWICK 

- intimate contact between consenting adults in confines of homes is a FUNDAMENTAL PRIVACY RIGHT 

- Define the right in a different way, therefore getting to the end result 

KENNEDY 

- Right to have privacy in one's home

- states had begun to remove sodomy laws from books (except Texas)

- Court has upheld Substantive force of liberty protected by Due Process (Casey) & struck down classed based legislation directed at homos (Romer v. Evans)

14th amendment is retroactive justification for equal rights act - Congress really wasn't sure that they had the power to pass the equal rights act 

- Classifications of equal protection exists where government draws distinctions between people

- retroactive constitutionalization of Civil Rights Act

- 

1. what is this classification? How is this classification drawn?

2. What is the level of scrutiny that applies here?

3. Does the government's law meet that level of scrutiny?

1. only applies to state and local government 

2. NEVER applies to federal government 

- Economic based distinction/classifications will be given great deference and only need some possible relation to statute's purpose

- NY prohibited selling advertisements on trucks - not a violation

- MINIMAL SCRUTINY TEST 

- "means based" AND "rationale basis" Test

- legitimate state interest (distracted driving)

- Equal protection does not require that all evils of the same genius be eradicated or none at all 

JACKSON'S CONCURRENCE 

- allows for "discrimination" in law where discrimination is "reasonable differentiation fairly related to the object of the regulation"

Perfect Fit = okay, b/c the law applies equally and appropriately RARE 

erfect Reasonableness - RARE = MAKES NO SENSE AT ALL 

- Under-inclusive - Targeted group doesn't include enough people causing the mischief 

- Over-inclusive - includes too any people 

1. Privileges & Immunities Clause = things actually listed in the Constitution that are given to you (Sans Roe (right to be treated equal to citizens of a particular state) - limited use 

2. Due Process (Substantive) 

3. Equal Protection Clause 

State cant deny you of Due Process 

1. Substanative - Gov't can never take this away from you - started with privacy, then Griswold, then Roe, then Lawrence v. Texas

2. Procedural - tells government how they can take things away from you. (We can try you, but we cant make you incriminate yourself) 

1. A fundamental right 

2. A suspect group

Gender 

Illegitimacy 

1. Minimal Scrutiny - rational basis test (deference is similar)

- used for economic claims

challenged law must be "Reasonable"

2. Strict Scrutiny 

- Legitimate compelling government interest 

- means necessary to achieving the end

- used for "suspect classifications" and "fundamental rights"

- Suspect = RACE 

- Strict Scrutiny = Claim for Equal Protection 

Racial 

National Origin 

Ethinicity 

Religion 

(Gender = quasi-suspect) 

(Sexual not decided yet)

- 14th amendment requires "separate but equal" but not forced to intermingle races 

- Separate but equal does not violate Equal Protection Clause 

- If separate schools are ok separate trains are ok

TEST 

- to determine the "reasonableness" courts will look to traditions and customs that keep social order 

Dissent - Harlan 

- laws should be colorblind, constitution is colorblind 

- suggests an absolute rule that states must always ignore color in EVERY law passed (in wake of 12th, 13th, and 14th Am)

- Equal is ambiguous 

- physically, train cars are the same 

- legislation cant abolish social distinction 

- STRICT SCRUTINY = (UPHELD)

- camps to protect against espionage and sabotage 

- Courts wont intervene with racial classifications used in name of international security 

- National Security = compelling state interest 

- 

STRICT SCRUTINY (Narrowly tailored/necessary) 

1. heres the flaw in the opinion: was this action necessary?

2. it was definitely not narrowly tailored 

3. Britain held - loyalty hearings  from Germans. why cant we?

4. This doesn't seem to be the most "narrowly cast" net

5. under-inclusive and over-inclusive 

"Separate but equal" doctrine has no application in the field of education 

- Separate facilities are inherently UNEQUAL - leads to detrimental effect on the black children 

 DID NOT USE STRICT SCRUTINY 

- did not even address whether there was a compelling interest 

- Court focused on psychological study by Clark

- does not overturn Plessy (b/c it was about "public schools")

Criticized - Weak opinion 

- right of a free public education has been a fundamental right of Americans since 1950s

- separation creates a sense of inferiority of minority students 

- Psychological evidence points to damaging black students 

- basing rulings on psych studies allows for easier overturn (Kobach sees as bad)

School authorities have primary responsibility for assessing and solving the process concerning integration in their districts 

- requires "prompt and reasonable start"

beach segregation, golf courses, buses, public parks, courtrooms, etc. 

- all relied EXPLICITLY AND SOLELY ON BROWN I 

- Court should not have used a study, should have used only 14th amendment 

Apply reasoning of Brown through 5th Amendment  (due process clause for fed gov't)

- Discrimination is so unjustifiable that it inherently violates the due process clause 

STRICT SCRUTINY 

- equal protection clause would be surplusage 

STRICT SCRUTINY TEST 

- Equal Protection Clause demands that if racial classifications, especially those of criminal statutes, are to be upheld, THEY MUST BE SHOWN TO BE NECESSARY TO ACCOMPLISH SOME LEGITIMATE STATE OBJECTIVE 

- no legitimate overriding purpose of statute 

- 14th amendment at issue, Stevens swing vote from deciding case on Title 9 

Race may be 1 but not the only criterion taken into account for non-remedial, benign racial classifications 

- RACIAL CLASSIFICATIONS ALWAYS GET STRICT SCRUTINY 

- Diversity is a compelling state interest, quota systems not narrowly tailored 

CREATES LEVEL OF INTERMEDIATE SCRUTINY 

1. Compelling state interest = gov't interestin remedying past discrimination (court felt not compelling)

2. Gov't interest in remedying past discrimination in a certain institution? - Yes, but this was a new school

3. Least restrictive means? - NO - Harvard system which applies more broadly "an informal positive addition"

Is diversity a compelling state interest???

- YES - that can justify using race in admissions

- quotas bad, economic status PLUS factor OK

- Strikes down Undergrad system but upholds Law school - why???

- law schools represent training ground for a large number of our nations leaders 

STRICT SCRUTINY (dont know why??)

- calls gender a "discrete and insular minority"

- insular is the problem - men and women mix in public broadly, different than blacks and whites 

Court rejects rationality review for gender-based classifications 

- Law struck down, treats women as a "QUASI SUSPECT CLASS" 

- Brennan - sex is like an immutable characteristic

some judges argue Minimal Scrutiny 

OK - sale of 3.2 beer males = 21, women = 18 

- Gender based classification was not substantially related to achieving an important gov't objective 

- FAILED - overinclusive/underinclusive 

- 

GENDER

- middle ground 

1. important gov't objective 

2. substantially related to achieving gov't objective 

DOES NOT AGREE WITH INTERMEDIATE SCRUTINY 

- invented out of thin air

- test is completely elastic and unusable, asking for judges to determine boundaries as they see fit 

Court UPHELD 

- "benign" sex classification is legal when men and women are differently situation (biologically) in regards to state's interest 

- State interest = preventing illegitimate teen pregnancies 

SUBSTANTIAL RELATION (natural deterrent for women)

INTERMEDIATE SCRUTINY 

Brennan/Stevens dissented - prevention of pregnancy is not a real basis of law 

INTERMEDIATE PLUS = May not exclude women 

- must be an exceedingly persuasive justification for gender based discriminatory action 

- State interest => producing soldiers with leadership skills, process does not work on women (stereotypes and generalizations)

- NOT AN EXCEEDINGLY PERSUASIVE JUSTIFICATION

used for sex discrimination in educational context

must show 

1. more than a compelling government interest and less than compelling state interest 

- EXCEEDINGLY PERSUASIVE JUSTIFICATION

SCALIA 

- Exceedingly persuasive sounds like strict scrutiny and women, as a minority, do not warrant strict scrutiny 

- military part of tradition, Virginia has an important interest in providing education related to that goal 

Mental retardation is not a suspect/quasi suspect classification so rational review is applicable

- established RATIONAL BASIS TEST FOR MENTALLY HANDICAPPED 

Marshall

- argues for sliding scale

Violates Equal Protection clause - singles out select group for disfavored legal status 

HOMOSEXUALITY DOES NOT GET HEIGHTENED SCRUTINY

- Rationally Related? - NO relationship b/w way law is configured and interest identified (too broad)

- Rational Basis = Minimal Scrutiny - gay/lesbian is not a suspect classification and there are no "fundamental rights" at stake 

SCALIA DISSENT = "surely CO has the right to be hostile towards homosexuals just as they may have animosity towards murderers or polygamists"

1. Suspect Class 

- ethnicity

- race

- religion

2. the right being afforded one group and being denied to another is a fundamental right?

- 

Wealth is not a suspect class 

- Is education a fundamental right? Plyer v. Doe 

TX could not pass a law prohibiting children of illegal aliens from attending school if they could not pay taxes 

- Minimal Scrutiny PLUS (Intermediate maybe) - applied by Court 

- SUSPECT CLASS 

- law must further some substantial goal of the state (higher than rationale basis test)

School interest = protecting budget and saving money = NOT SUFFICIENT 

Fundamental Rights Strand of Equal Protection Clause: Voting 

Voting left up to states in Constitution 

- Constitution talks about ways it cannot be violated, but does not make affirmative rights 

- 1856 - North Carolina = last state to eliminate its property qualification for voting, 14th and 15th cannot deny voting based on race 

Strict = Race, Alienage, Ethnicity 

Intermediate = Gender

Minimal = Mental Capacity, Age?, Homosexuality?

1. Suspect Classification 

- race

- ethnicity

- religion

2. The right being afforded one group and denied to another is a fundamental right?

Compelling state interest = revenue for the state, better voters 

- State was OBVIOUSLY discriminating against underprivileged 

 STRICT SCRUTINY 

- RIGHT TO VOTE IS FUNDAMENTAL = elevates to Strict

Excluded people have no interest in school board 

 NARROWLY TAILORED?

- Both underinclusive and overinclusive 

- LAW FAILS STIRCT SCRUTINY 

- courts have been willing to entertain fundamental rights in SDP not in EPC since 

- Right to offspring (Procreation - Skinner) 

- Voting - Harper 

- to litigate

- to interstate migration 

- to ballot access (to run as a candidate)

 Did it violate EQUAL PROTECTION CLAUSE of 14th AM?

- NO = while apportionment law may have discriminatory effect on Democrats, effect was not "sufficiently adverse" to violate EPC 

- mere lack of representation did not diminish Democrat's power 

VIOLATION OF EQUAL PROTECTION - recounting of ballots, no alternative method could be established within time frame 

STRICT SCRUTINY 

- narrowly tailored? 

UNCONSTITUTIONAL - FL's Supreme Court made NEW ELECTION LAW - only state legislature may do 

1. Public Function

2. Significant State Involvement 

If it looks like a town and acts like a town = restricted by 1st Amendment 

Court used a balancing test 

- weighting the rights of the property owners against rights of citizens to enjoy freedom of press and religion 

looked and acted like it was owned by the state 

Park is different from a private club 

LOOKING FOR:

whether it is a function traditionally, exclusively provided by the state 

PUBLIC FUNCTIONS STRAND has faded 

- State can act as a partner with a private entity? - YES - clear case of state action 

- State can authorize private entity? - Yes, state action

- State can directly assist private entity? - Yes 

- State can indirectly assist? = NO (Moose lodge)

- State can knowingly tolerate what private entity is doing? - NO 

- State can unknowingly co-exist? = NOT STATE ACTION

- Necessary state involvement, Ks have to be enforced by state 

VIOLATION OF 14TH AM?

- State courts cannot constitutionally prevent sale of real property to blacks 

- standing alone restrictions violate no rights, their enforcement violates 14th amendment

Wilmington Parking Authority = agency of State of Delaware

= YES VIOLATION OF EQUAL PROTECTION CLAUSE 

Court says NO - does not meet the standard 

- State action doctrine did not necessarily apply to all private entities that received benefits or services from the gov't 

Private club = not subject to EPC

NO VIOLATION 

- state action is limited to State' power to act - not positive rights 

- duty arises if special relationship