The Building Blocks



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Dean Milk Co. v. Madison (1951)


  • Madison made it unlawful to sell milk that had not been processed and bottled within 5 miles of the city

  • “Avowed purpose”, ensuring by inspection milk bottled under sanitary conditions, was acceptable

  • BUT “practical effect” was to prevent sale of milk produced in Ill. and parts of WI.

  • Erecting economic barrier protecting major local industry, discriminates against interstate commerce Unconstitutional

  • Cannot do, even to protect health and safety, if reasonable nondiscriminatory alternatives, adequate to serve legitimate local interests, are available

  • Court found 2 alternatives

  • Noted that it did not matter that in state milk is subject to same proscription


Fort Gratiot Sanitary Landfill Inc. v. Michigan Dep’t of Natural Resources (1992)

  • statute barring private disposal facilities from accepting waste from out of county

  • cited Dean Milk




  1. Other Doctrines Concerning Discrimination

  1. The Market Participant Doctrine- Exception

  • Dormant Commerce Clause analysis is not applied, state may favor local citizens over out-of-state economic interests

  • Justifications for allowing this economic protectionism:

 state should be treated same as private companies

 protects some sort of state autonomy

 Congress can override market participant exceptions (BUT this makes it hard to argue that states are doing constitutionally protected things)

 Functional Argument: If states use resources to get in market, got money from its citizens and it makes sense to allow state to confine benefits of expenditures to its own citizens

 Another argument: state is generating economic activity, if it cannot benefit its citizens may not do activity at all


  • How much does this exception swallow the rule?

Reeves, Inc. v. Stake (1980)

  • state owned cement plant can favor in-state customers in times of shortage

  • no restrictions on any resale-no downstream regulation

  • Where state attempts to affect parties beyond those with whom it is contracting, regulatory consequences of state’s action may outweigh its “market participatory” consequences

  • If state’s participation in market corners raw natural resources that the state has already processed, doctrine is less likely to be applied than where the state has invested labor and capital in manufacturing a product


South-Central Timber Development v. Wunnicke (1984) White

  • buyers required to partially process timber in Alaska before exportation

  • out-of-state firm attacks as violation of dormant commerce clause; Alaska defends by market participant doctrine-selling commodity it owned

  • Court said market participant doctrine not applicable

  • raw natural resource

  • burdens on commerce affected more than those involved in immediate transaction

  • doctrine will only apply where the effects of the state’s terms are limited to the particular market in which state was participating, not to broader one

  • here, Alaska was engaging in “downstream regulation” of timber processing market

  • Rehnquist Dissent: Alaska could have promoted industry through other alternatives

  • could have chosen to sell timber only to those companies that maintain active primary-processing plants in Alaska (Reeves) or could directly subsidize the primary processing industry within the state (Hughes v. Alexandria Scrap Corp.)

  • since these were constitutional, Court’s ruling was unduly formalistic

  • Brennan Concurrence: This shows how ridiculous the doctrine is, get rid of market participant exception

Dormant Commerce Clause

- Market Participant Exception

- Downstream Limitation



White v. Massachusetts Council of Construction


  • entitled to protection of market participant doctrine, not held to be regulating employment contracts between public contractors and their employees, everyone affected by order held to be working for the city

  • working for the city market participant analysis

  • shows difficulty of choosing how to classify-whether as market participant or downstream limitation




  1. The Privileges and Immunities Clause of Article IV

  • Comparative right: Does not affirmatively give you anything except equal treatment

  • in a case where out-of-staters are discriminated against by a state acting as a market participant, the statute may be vulnerable to attack based on clause

  • “the Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States”

  • alien or corporation may not take advantage of this clause (can with Equal Protection Clause)

  • doesn’t protect against any kind of discrimination based on residency

  • discrimination has to be about something that is a fundamental interest

Montana Elk Case: Discriminate against out-of-staters with higher hunting license fees but hunting not a fundamental interest so discrimination is not unconstitutional
United Building and Construction Trades Council v. Camden (1984) Rehnquist

  • Ordinance required that at least 40% of work force on any construction project funded by the city must reside in city

  • Doesn’t violate Commerce Clause but may nonetheless violate P and I Clause

  • H: No market participant exception to clause

  • Rationale for market participant exemption in this context is not as strong as with Commerce Clause

  • Commerce Clause deals with regulation and state as market participant is not regulating

  • P and I Clause bars any type of state conduct, regulatory or otherwise, which discriminates against out-of-staters on matters of fundamental concern

  • Here, discriminatory conduct is state’s expenditures of its own funds which militates in favor of upholding the action against P and I attack

  • P and I clause bars discrimination based on municipal residence, just as it bars based on state residence

  • Although regulation burdens in-staters as well they at least have a chance to remedy at the polls, out-of-staters have no similar opportunity

  • Ban on discrimination against out-of-staters is not absolute; tight fit between particular discrimination used and evil state is combatting is required

  • Case remanded to see if Camden’s purpose is appropriate and if tight fit

  • Blackmun Dissent: P and I Clause not intended to apply to municipal discrimination

  • No danger of unchecked political process with this discrimination

  • Can’t reconcile with Zobel v. Williams, where Court refused to find P and I violation (although there was an Equal Protection violation) because statute does not make distinction between native-born Alaskans and those who migrated from other states




  1. Equal Protection Clause

  • nonresidency has not been held to be a suspect classification for equal protection purposes

  • no strict scrutiny for state schemes which discriminate against nonresidents

  • standard of mere rationality

  • (where P and I attack, equivalent of strict scrutiny with peculiar source and tight fit requirements)




  1. Facially Neutral Statutes With Significant Effects on Interstate Commerce

  • evenhanded on its face/disproportionately burdensome to out-of-staters


Exxon Corp. v. Governor of Maryland (1978) Stevens

  • law prohibiting oil producers or refiners from operating retail gas stations in Maryland

  • law enacted because of evidence that gas stations operated by them had received preferential treatment during 1973 oil shortage (Fairness argument)

  • State regulating economic activities on basis of fairness considerations doesn’t violate dormant Commerce Clause as such

  • Efficiency Argument: Small stations will close, big ones will have oligopolistic power

  • no gas produced or refined in Maryland rule affected out-of-state companies exclusively

  • conversely, vast majority who were helped by statute were in state

  • statute attacked: (1) impermissibly discriminated against interstate commerce; (2) measure unduly burdened such commerce; (3) only federal government can regulate gas sales because of nationwide market

  • Statute upheld:

  1. Statute did not discriminate. Not all out-of-state companies were affected. Fact that entire burden fell on some out-of-state companies was insufficient to establish that interstate commerce was discriminated against

  2. Statute might shift volume sales from one type of station to another but does not impermissibly burden interstate commerce. Commerce Clause protects interstate market, not particular interstate firms, from prohibitive or burdensome regulation.

  3. No preemption- Dormant Commerce Clause may preempt entire field from state regulation only when lack of national uniformity would impede flow of interstate goods. Not a lack of uniformity problem here. (Puts burden on large oil companies to go to Congress)

  • Blackmun Dissent: This is protectionism, indistinguishable from Hunt


Hunt v. Washington State Apple Advertising Commission (1977) Burger

  • NC required all apples have U.S. grade or no grade at all

  • Prohibited display of Washington stringently-policed grades, had to obliterate printed labels or repack apples for NC

  • H: Statute unconstitutionally burdened interstate commerce and discriminated against Washington (raised costs and stripped competitive advantage it had earned)

  • NC claimed it was trying to protect customers from fraud

  • Suspicious: Apples going to wholesalers, not consumers, applied to label of closed shipping containers-retail sales made after out of these containers; no grading is fine; wholesalers want the system; apple producers responsible for legislation

  • Court found a scheme to be intentionally discriminatory

  • Applied a balancing test: Burdens on interstate commerce far outweighed the limited benefit to NC consumers (Considered availability of non-discriminatory alternatives)


Minnesota v. Clover Leaf Creamery Co. (1981)

  • prohibited sale of milk in plastic containers, allowed in paper nonreturnable cartons

  • trial court: actual basis of statute is promotion of pulpwood industry, and ban would not promote conservation or save energy

  • S. Ct.: not held to be protectionism, regulates evenhandedly, unlike statutes discriminating against interstate commerce

  • No reason to suspect winners will be in-state; losers out-of-state

  • Nondiscriminatory regulation serving substantial state purpose is not invalid because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry

  • Only if burden on interstate commerce clearly outweighs the State’s legitimate purpose is there violation of the Commerce Clause



  1. State Taxation of Interstate Commerce

Commonwealth Edison Co. v. Montana (1981)

  • tax on the severance of coal, has lots of natural resources

  • Commerce Clause challenge to tax was rejected

  • Tax computed at same rate no matter where final destination

  • Not a differential tax treatment on interstate and intrastate

  • Montana may be exploiting its monopoly position but Commerce Clause does not give residents on 1 state a right of access at reasonable prices to resources of other states


Complete Auto Transit- shows that stated tests in cases challenging taxes as undue burdens on interstate commerce differ from the stated tests in cases challenging regulations


  1. Congressional Action-Preemption and Consent

  • when Congress exercises its power, to what extent does this exercise of valid congressional power restrict what the states may do?

 Direct Conflict: Supremacy Clause of Article IV-state law must yield to federal law

 No Clear-Cut Conflict: No single rule, general principles applied



  • Express Preemption

  • Implied Preemption-gives federal law more power but power comes through judicial interpretation

 Field Preemption: Intent to occupy field, no room for state supplementation

 Conflict Preemption: Compliance with both standards is impossible



  • in areas where States have exercised their historic police powers (such as the health and safety of their citizens), courts must start with a presumption against preemption absent clear intent of Congress

  • strongest argument for implied preemption is that otherwise Congress would have to monitor many state laws, big burden on Congress


Gade v. National Solid Waste Management Association (1992) O’Connor

  • Illinois statutes for licensing workers dealing with hazardous waste, stated purpose of promoting job safety

  • Are these statutes preempted by OSHA regulations?

  • No direct conflict, state purports to be supplementing OSHA

  • Whether federal statute should be understood as just a floor or as a floor and a ceiling

  • Question of whether a certain state action us preempted by federal law is one of congressional intent

  • Federal regulation not intended to be all-encompassing

  • §18(a) Act does not prevent any State agency or court from asserting jurisdiction under State law over any safety or health issue where there is no federal standard in effect (Savings Clause- company in full compliance with federal standards can still be subject to state cause of action)

  • why have this clause if states can have jurisdiction even when there is a federal standard

  • § 18(b) states have option of preempting federal regulation (Ill. did not do)

  • Seems like federal standard is meant to be a floor

  • No express preemption

  • H: Implied preemption-statute designed to avoid duplicative regulation-1 standard (could be state or federal)

  • Kennedy Concurrence: Express preemption

  • Dissent: Traditional area of state regulation, should start with presumption that states can still regulate UNLESS federal government indicated in statute they want to take over field or there is a direct conflict

  • § 18(a) contemplates states having some role


Geier v. Honda (1999) Airbags Case

  • having airbags in car was one of several options, not required- Standard 208

  • federal standard does not exempt from liability under common law

  • § 1392(d) statute says that no state shall have authority to establish or continue in effect any non-identical standard

  • district court: § 1392(d) preempted claim because recovery under common law tort theory (negligent for not putting in airbags) might establish a safety standard that was not identical to standard 208 summary judgement

  • Appeal on basis that SJ was in error because § 1392(d) expressly preserved all common law claims against preemption and term “standard” applies only to legislation or regulation

  • State supreme courts: Come out in favor of state action, relying heavily on broad sweep of savings clause

  • Court of Appeals (exception of 9th Cir.) held that such claims were impliedly preempted

  • Standard could be understood to apply to requirements imposed by common law tort verdicts

  • H: A verdict in ’s favor would stand as an obstacle t the federal government’s chosen method of achieving the Act’s safety objectives. Act impliedly preeempts lawsuit.

  • There was congressional decision to not force airbags in too quickly-thought this would undermine public support for airbags

  • Here, agency, not Congress wants to occupy field



  1. Interstate Mobility-Travel

  • durational residency or fixed date residency requirements

  • Court strikes down all durational residency requirements except divorce cases (Sosna v. Iowa) and public tuition cases

  • Right to Travel-Generally accepted constitutional right, not specified textually but inferred out of American constitutional order

  • Right to travel recognized as a fundamental interest

  • Relevant Constitutional Provisions:

 Privileges and Immunities Clause of Art. IV

 Equal Protection Clause of 14th Amendment

(Citizenship clause and Privileges and Immunities Clause)
Crandall v. Nevada (1868)


  • Court invalidated a state tax imposing a capitation tax on every person leaving the state


Edward v. California (1941)

  • relying on Commerce Clause, Court invalidated state statute prohibiting any person from bringing any indigent person who is not a resident of the state into the state

Shapiro v. Thompson(1969) Brennan

  • invalidated denial of welfare benefits to residents who had not resided in the jurisdiction for at least a year

  • 1 year waiting period held to impair fundamental right of interstate movement (inferred from structure of Constitution, no specific textual provision)

  • severe impact of denied benefits

  • strict scrutiny: because of major interference with freedom to travel, the Court applied strict scrutiny, requiring that the one year waiting period be necessary to the achievement of a compelling governmental interest

  • State’s policy reasons:

 avoid being a welfare magnet state (subsidy motivated migration), welfare is not a

constitutional right

 preserve financial integrity of state welfare program unconstitutional objective

 providing objective residency test legitimate but not compelling

 discouraging fraudulent collection of payments from more than 1 state legitimate but

not compelling



  • none of interests asserted were sufficient, not compelling and could have been served by other means

  • Harlan Dissent: Concerned about importance the majority attached to fact that newcomers might be deprived of necessities of life

  • Court might apply strict scrutiny to any classification bearing on availability of necessities, an exception which would swallow up the standard equal protection rule make Court a super-legislature

  • Thought right of interstate movement could be protected by Fifth Amendment’s due process Clause, rather than Equal Protection Clause

  • Brennan Dissent: Assumed magnet effect true, the reason it is a deterrent is part of the reason it is unconstitutional

  • Unclear why, if there is an independent constitutional right to travel, the Court relied on the equal protection clause


Zobel v. Williams (1986)

  • struck down Alaska scheme to pay $/per year of residence

  • created permanent sub-classes of residents violations of equal protection clause

  • did not use right to travel but may not really be significant as “in reality, right to travel analysis refers to little more than a particular application of equal protection analysis”


Saenz v. Roe (1999) Stevens

  • H: Privileges and Immunities Clause of the Fourteenth Amendment protects a particular aspect of the right to travel, the right of a person who has recently become a citizen of a state to enjoy the same privileges and immunities enjoyed by longer-standing citizens

  • Right of newly-arrived CA residents to receive same welfare benefits

  • CA, acting under express congressional authority, those new residents would receive benefits no greater than in prior state for 1 year

  • (1) Does state have constitutional power to do this?

  • (2) Even if not, does Congress have power to allow state to do it?

  • P and I clause of Article IV narrowly designed to deal with state residents and non-state residents passing through, protects rights of state citizenship

  • P and I of 14th Am.: entitled to being treated same no matter how long you are in the state, part of national citizenship

  • Broad, non-discrimination rule prohibits states UNLESS they can justify under strict scrutiny

  • Even in CA acting for purpose of reducing expenditures (permissible purpose) and not to deter migration of poor people (impermissible purpose) not acceptable means because financial needs are not dependent on how long in residence or previous residency

  • Fiscal justification did not come close to surviving strict scrutiny

  • Result not surprising, fact that relied on P and I clause rather than equal protection clause is surprising

  • Breathes new life into Privileges and Immunities Clause of Fourteenth Amendment

  • Congress may not authorize States to violate the Fourteenth Amendment

 still allowed to have bona fide residence requirements

  • but waiting period went beyond a proof of genuine residency

  • Rehnquist Dissent: It should be viewed as a legitimate test of bona fide residency




  1. Equality under the Fourteenth Amendment

  1. Before the Civil War

Dred Scott v. Sandford (1857)

  • H: Dred Scott not a citizen and cannot claim any of the rights and privileges of the Constitution Court has no jurisdiction to hear case

  • No state can by naturalizing an alien invest him with rights of a citizen of a state under the federal government, even though as far as state is concerned is a citizen with rights

  • Slaves were not acknowledged as part of the people in Declaration of Independence

  • Did Scott remain a slave after going to free states?

  • Was Congress authorized to pass the Missouri compromise under any of the powers granted to it by the Constitution?

  • Act of Congress which deprives a citizen of the U.S. of liberty or property (slave) merely because he went into a territory of U.S. and committed no offense cannot be considered due process of law

  • Right of property in slave is distinctly and expressly affirmed in Constitution

  • H: Missouri Compromise is unconstitutional (only second congressional statute to be held unconstitutional; first, 1789 Judiciary Act in Marbury v. Madison)

  • Is the decision right as a matter of original intent?

  • No constitutional definition of citizen, definition is at state level, federal piggybacks on this

  • BUT 1 reading suggests that Court prohibits states from making any black a citizen, this is at odds with intent of C to maintain state sovereignty

 leads 14th Am. drafters to define citizenship and to overrule Dred Scott

  • destroyed possibility for compromise, polarized issue

  • constitutionalizing an issue makes political compromise difficult




  1. Reconstruction Period

  • Reconstruction: Second moment of foundation

  • Many central constitutional concepts first emerge

  • No idea about citizenship, no constitutional commitment to equality until 14th Am.

  • Changing ideas about balance between state and federal government

  • Understanding that states can be as oppressive and tyrranical as a centralized government

  • Federal courts as major agents of federal government

  • 15th Am. deals with suffrage-makes it clear that 14th Am. was not meant to deal with this

  • Was 14th Am. consistent with legal requirements of Article V amendment process?

  • Ackerman argument, supplemental material

  • First period of aggressive judicial activism, striking down national legislation as unconstitutional

  • Supreme Court’s first opportunity to assess the impact of the Reconstruction Congress amendments came in the Slaughter House Cases



Slaughter-House Cases (1873) Miller 5:4

  • monopoly given by LA to some slaughter-houses

  • other butchers claimed that the statute deprived them of the opportunity to practice their trade, and thereby violated the 13th and 14th amendments

  • denial of the P and I clause of the 14th Am. and the fundamental right to pursue livelihood, privilege that goes with citizenship

  • Court rejects this argument by distinguishing between U.S. and state citizenship

  • only privileges and immunities protected by this clause are the ones that distinctly belong to national citizenship

  • “fundamental” civil rights, including the right to livelihood, are the domain of the states not the federal government

  • if no protection under state law, out of luck, P and I clause does not add to rights in that area

  • criticism of this reading: Ct defined so narrowly and tied so tightly to national citizenship that Congress could have legislated without the 14th Am

  • even without amendment the privileges and immunities of national citizenship were protected against state action by virtue of the Supremacy Clause

  • majority’s reading renders the Clause useless

  • Dissent: Correct view is that the Clause guarantees to every U.S. citizen fundamental rights, including right to pursue a lawful employment

  • Field Dissent: With majority reading, Clause is vain and idle enactment

  • What Art. IV, section2 does for protection of citizens of one state, 14th Am, does for protection of every U.S. citizen against creation of monopoly

  • Equality of right, exemption from all disparaging and partial enactments, distinguishing privilege of national citizenship

  • Focuses on process issue (view gets adopted in Lochner era-apply to economic regulation)

  • Bradley Dissent: Broader conception of fundamental rights- that is what has been done with substantive due process

  • Both views get adopted in constitutional doctrine at different points, though they lose here

  • Still good law BUT Saenz v. Roe breathed new life into P and I clause of 14th Am., clause protects a right to travel

  • Slaughter-House Cases suggest a 2 tiered approach to 14th Am.:

 when rights of slaves at stake, read expansively to provide comprehensive federal

protection

 when racial discrimination not at issue, protections of national citizenship are narrower,

primary recourse for protection of rights in state government



  • Most damaging judicial attack on Reconstruction legislation…

Civil Rights Cases (1883) Bradley

  • constitutionality of Civil Rights Act of 1875 challenged on ground that it was not authorized by any substantive grant of power to federal government

  • Congress says it enforcing 13th and 14th amendments

  • 8:1 Act invalidated

  • 14th Am. is prohibitory on states, not individuals

  • Act declares acts committed by individuals-lays down rules for conduct of individuals in society, these are private wrongs, not reached by 14th Am.

  • Court is policing the internal limitations of 14th Am., limits Congress’ power to regulation of state action, private action beyond scope

  • 13th Am: Congress argues that private, racial discrimination is a consequence, entwined with slavery and involuntary servitude that we should be able to legislate to avoid servitude

  • Ct: No, this runs slavery argument into the ground

  • Majority view: Before Congress could legislate, state would have to violate equal protection

  • If state sanction, this could be sufficient to legislate

  • Reading of 14th Am. grew out of same view of states as primary protector of individual rights that Court expressed in Slaughter-House

  • Statute constitutionally offensive in part because it applies equally to cases in states where they have just laws protecting personal rights and where authorities are ready to enforce laws as to those cases in states that violate the 14th Am.

  • Harlan Dissent: State has an affirmative obligation under 14th Am. to ban or address this conduct, it is appropriate for Congress to legislate to enforce state’s obligation




  1. “Separate But Equal” Doctrine

  • the statutes in question involve classifications on the basis of race but in a formal sense do not have disproportionate effects along racial lines

  • service not denied, but separate

  • no focus on actual equality of services

Plessy v. Feguson (1896) Brown

  • H: Separate but equal treatment does not violate equal protection

  • Separate but equal accommodations on trains

  • This is social equality, not political or civil equality

  • Social equality, not a goal of the Equal Protection Clause, can only be achieved through voluntary action, not through statutes

  • Reasoned that separate but equal was not a badge of inferiority,

  • If blacks feels that way it is not the law, but their construction of it

  • With this rationale, could all other distinctions be validated

  • Court: No, arbitrary distinctions will be illegal, this is a reasonable distinction

  • Appeal to customs and local practices

  • Meaning of equal protection derived from social baseline

  • Harlan Dissent: Law may appear facially neutral, excluding blacks from white cars and whites from black cars, but everyone knows it was really designed for the former

  • Attaches different social meaning than majority, social meaning is to express view that blacks are inferior and this is inconsistent with 14th Am.

  • Therefore, statute interferes with personal freedom of black people-violation of equal protection

  • “our Constitution is color-blind”

Different Considerations for Courts:



  1. Social Meaning: How much should constitutionality focus on social meaning? Congressional intent is used to interpret statutes, may be different or same as social meaning

  2. Incitement to racial violence: Public law has effect on private actions, is it appropriate for Court to consider this. If so, where should Court come out on desegregation if it incites violence?

  3. Actual effects (Not considered in Plessy)




  1. Desegregation

  • Strategy of NAACP was to accept Plessy on its own terms and then challenge its application, particularly in education where it would be easiest to show that separation is not equal

  • Bring lawsuits initially against higher education

  • Court addressed the equality problem:

Cumming v. Board of Education (1899) Harlan

  • challenge by blacks to tax assessment, money used to support high school for whites only

  • black high school closed

  • challenge rejected as they were requesting injunction that would only serve to hurt school for whites, not open school for blacks

  • Question: which institution of government should determine whether the facilities are equal, and how should that determination be made?

  • State officials as long as they act in good faith and determinations were reasonable


Missouri Ex Rel. Gaines v. Canada (1938) Hughes

  • law for separate education

  • no parallel law school for blacks, arrangements for some education

  • state court would allow Gaines admission, stressed availability of law schools in adjacent states

  • S.Ct: It is beside the point what other states provide, whether it is as good, the point is what does Missouri provide to whites and deny to blacks because of race

  • Denial of equality of legal right to enjoyment of privileges which state has set up

Sweatt v. Painter (1950)

  • When lawsuit started, Texas quickly hobbled together Black law school

  • Court ordered the admission of a black student to white school

  • Court held that facilities were not equal (library, faculty…)

  • Court said that even if resources similar, in law school, interaction with other students is so critical that there is no equality with separation


McLaurin v. Oklahoma State Regents (1950)

  • Black student admitted to white school, under threat of litigation, but made to sit, eat, study separately

  • Even though facilities equal, Court held the restrictions unconstitutional because they impaired and inhibited his ability to study, engage, exchange views, and to learn his profession


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