The Building Blocks



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Wygant v. Jackson Board of Education (1986)


  • Harder to justify these programs at lay-off stage

  • Particularly troubling because we are burdening individuals with expectations and reliance interests (unlike at entry or even promotion stages)

  • Role model argument is problematic (this is prospective, rather than remedial)




  • Pre-Croson compromise: Series of cases decided in which affirmative action measures were utilized to remedy employment discrimination

  • Use of race-conscious goals or timetables not per se unconstitutional

  • No actual victim requirement, class-wide relief allowed

  • Careful scrutiny needed

  • Unwilling to accept race-conscious measures as the norm

  • Plans must be bounded in some way, unlikely to survive constitutional attack if costs were broadly diffused

  • Powell retires, Kennedy appointed  Conservative majority unraveling of compromise


City of Richmond v. J.A. Croson Co. (1989) O’Connor

  • Set-aside program

  • First case in which a majority of the Court agreed on what level of review should be applied to race-conscious affirmative action programs STRICT SCRUTINY

  • Contractors on contracts funded by city required to subcontract >30% to minority business

  • Minority businesses include Black, Hispanic, Asian, Indian, Eskimo, Aleut

  • City: Plan designed to overcome effects of past discrimination against Blacks in construction industry, remedial in nature

  • Prospective justification is not permissible, must be remedial

  • Some evidence of this discrimination

  • Congress had similar plan and there were congressional findings of this discrimination nationwide

  • Strict scrutiny required because:

  1. No way to tell which classifications are truly benign or remedial and which may be motivated by notions of racial inferiority or simple race politics (e.g., black majority on city council in Richmond)

  2. Stigmatic Harm: Group will be viewed as less competent and unable to succeed without special protection

  3. Unless strict scrutiny, will never achieve goal of race-neutrality (accuses Marshall’s dissent of advocating a watered-down version of equal protection review that assures race will always be relevant in American life)

  • O’Connor: Strict scrutiny required plan be struck down:

  1. Objective: No direct evidence of discrimination by anyone in Richmond (amorphous claim); no evidence there would be more minority had there not been discrimination; no showing of how many minority firms could have done work

  2. Inadequacy of evidence

 needed to identify discrimination with some specificity

  • Did not show compelling need and unable to show plan was narrowly tailored to remedial objective

  • Where did 30% come from?

  • No showing that race-neutral means would not increase minority participation adequately

  • Strict scrutiny does not mean fatal

  • Scalia Concurrence: Not allow race-conscious measures ever even as a means of remedying past discrimination by anyone other than government itself

  • Stevens Concurrence: Agreed with strict scrutiny

  • Disagreed that these classifications are only permissible for remedial justification

  • Thought there may be some other legitimate public purpose

  • Agreed plan should be invalidated in part because benefiting class not limited to victims of discrimination (minority groups, who had never even been in business in city, included)

  • Marshall (joined by Brennan/Blackmun) Dissent: Disagreed with strict scrutiny standard

  • Intermediate level: “Must serve important governmental objectives and must be substantially related to achievement of those objectives.”

  • Profound difference separates actions that are racist and governmental actions that try to remedy effects of racism

  • Agreed that minority control in Richmond is a factor to be considered in determining appropriate level of scrutiny

Significance of Croson:

 Need precise legislative findings

 Societal discrimination will not suffice

 Possible to prove past discrimination by inference

 Remedying past discrimination seems to be only objective that will be held compelling

(Diversity-uncertain)

 Narrowly tailored- means must look into race neutral means


Metro Broadcasting, Inc. v. Federal Communications Commission (1990)

  • Used intermediate standard of review for race-conscious program by Congress to help minorities in broadcasting

  • Rationale was that minorities were underrepresented and diversity in broadcasting is important

  • No evidence of discrimination by FCC, not remedial justification, prospective


Adarand Constructors, Inc. v. Pena (1995)

  • Financial incentive to contractor who awarded sub to a disadvantaged business

  • Whites could qualify, although minorities automatically did

  • OVERRULED Metro Broadcasting:

  1. Used intermediate standard of review rejected, Strict Scrutiny across the board (congressional statutes as well as state and local)

  2. Prospective diversity justification No longer permissible as reason for government to justify these programs

  • O’Connor: overrule because it departed from one of core principles of Court’s earlier cases on affirmative action

  • Principle of congruence: Equal protection analysis with 5th Am. (federal government) is same as under 14th Am.

  • Intermediate review undermined 2 other core principles of skepticism of all racial classification and consistency of treatment irrespective of race of burdened/benefited group

  • 5th and 14th protect persons, not groups

  • Stressed that strict scrutiny is not necessarily fatal- need narrow tailoring

  • Remanded the particular regulation with suggestions

  1. Whether governmental interest being served is compelling

  2. Whether race-neutral means might have been effective to achieve that interest

  3. Whether remedy was appropriately short-lived so as not to last longer than discriminatory effects it is designed to eliminate

  • Scalia and Thomas Concurrences: Would go even further-can never be justified

  • Thomas identified the paternalism and said these classifications are as noxious as discrimination inspired by malicious prejudice

  • Stevens Dissent: Rejected “consistency” principle-It is the difference between no trespassing sign and a welcome mat difference between a caste system and one that seekd to eradicate racial subordination

  • There are strong reasons to reject “congruence” principle and give more deference to Congress with these programs

  1. Congress’ special enforcement powers: § 5 of 14th Am. enhances Congress’ powers concerning matters of race. By contrast, the states’ use of race-conscious measures was what Am. was directed against

  2. Congress’ programs represent the will of the entire nation’s elected representatives, whereas state’s programs may affect nonresidents who had no role in enactment. Just as Congress can burden interstate commerce even though states cannot, Congress should have greater leeway to use race to combat effects of past discrimination

  • Adarand federalizes Croson


Hopwood v. Texas (1999)

  • Race as factor in admissions program

  • Sweeping rejection of affirmative action programs

  • Race may not be used as a factor in public-university admissions, unless consideration of race is needed to reverse present effects of past discrimination by the particular unit of the university now making the admissions decision

  • May not take race into account for purposes of increasing diversity- not a compelling goal

  • (Strict scrutiny used for review)

  • Recent decisions are pushing hard towards view that remedial justification is only permissible one

  • Still remains to be seen if despite the precedents, the Supreme Court will continue to view education as distinct (Where is Bakke now?)

  • Despite the record of discrimination, remedial justification was not a compelling interest

  • Needs to be discrimination of law school, not just university-Institutional specificity

  • Concurrence: Not appropriate to overrule Bakke

  • Nonetheless, this program does not meet the requirements

  • To the extent that the Texas program is typical, sweeping decision

  • Moreover, in terms of record and remedial justification, Texas would have seemed to be in the best position to prevail

  • Although Powell alluded to possible constitutional program in Bakke maybe this is impossible to implement practically

  • Is it the form or the substance of program that is really problematic

  • Texas’s program seems to be more similar to Harvard plus factor than quotas



  1. Heightened Scrutiny and the Problem of Gender

Bradwell v. Illinois (1873) Miller

  • Litigated on same theory as Slaughter House

  • Central aspect of citizenship is right to free labor, women should be allowed to practice law

  • But Slaughter House gave such a narrow definition of rights of national citizenship

  • Easy case for those who concurred should be harder for Bradley who dissented

  • Bradley Concurrence: Fundamental rights protected by Privileges and Immunities Clause of 14th Am. right to labor is protected BUT this classification is reasonable, given nature and delicacy of women

  • Similar style of reasoning as in Plessy naturalization of social order

  • Scientific, natural ideas inform legal categories of race (Plessy) and gender (Bradwell)

 Some of these cases may be problems of factual obsolescence- Statute enacted at time



when facts about economic circumstances of women were different

  • Statutes reflect generalizations that may have tracked facts at time of enactment

Obsolescence in formative foundations for statute

  • Based on assumptions about appropriate gender roles

  • Court could strike down statutes not because of substantive impermissibility but because they rest on obsolete facts or assumptions

- Process-oriented doctrine, does not reach ultimate question of permissibility

  • For most part with gender, Court seems to be mopping up obsolete statutes

  • Constitutional doctrine has not played a significant role in evolving cultural issues about gender

  • Originalism, 14th Am and gender- 14th Am about race, not gender

  • If it has to be consistent with understanding of 14th Am. at time of enactment, Brown is problematic because seems clear that separate (but equal) was not unconstitutional

  • Bork: Brown is rightly decided because it is clear that race was at the heart of the Equal Protection Clause, courts can make generalizations about concepts of equal protection that extends to outlawing practices that were permissible when adopted as long as generalization is in category of race. This is different than extending to other groups (gender). BUT it is drafted generally, not limited to race, not meant to be so specific

Reed v. Reed (1971) Burger

  • First S.Ct. decision to invalidate a gender classification

  • When 2 people equal in inheritance chain, it goes to the man

  • Violation of Equal Protection Clause: Goal of reducing load of probate courts may be permissible but means used to achieve goal-gender classification- was the very kind of arbitrary legislative choice forbidden by Equal Protection Clause

  • Gender difference of competing applicants bears no rational relationship to state objective that is sought to be advanced by statute


Frontiero v. Richardson (1973)

  • Men in military could automatically claim wife as dependent

  • Women had to prove dependence

  • Court divided on standard of review, but 8 agreed distinction violated equal proetction component of 5th Am’s due process clause

  • Brennan: Gender classifications, like racial, are inherently suspect close scrutiny

  • Found support for this in Reed since Court had implicitly rejected rational-basis analysis by rejecting the apparently rational explanation

  • Sex, like race, immutable characteristic

  • Sex frequently bears no relation to ability to perform or contribute to society

  • Explicit rejection of mere rationality test, must be subject to strict scutiny

  • (later retreat to intermediate scrutiny)


Cleveland Board of Education v. LaFleur (1974)

  • Due process did not permit “conclusive presumption” that women were medically unfit to teach BUT Weinberger v. Salfi (1975) sharply restricted use of this technique for attacking statutory classifications


Weinberger v. Wiesenfeld (1975)

  • Used equal protection analysis to strike down part of Act entitling a widowed mother, but not a widowed father, to benefits based on earnings of deceased spouse

  • Cited Frontiero as standing for proposition that gender classifications based on archaic and overbroad generalizations were unconstitutional


Stanton v. Stanton (1975)

  • Another attack on old notions- striking down statute that made parents support sons until 21 and daughters until 18


Craig v. Boren (1976) Brennan

  • 18 for women; 20 for men for sale of beer

  • Constitutional claim was that statute denied equal protection to males 18-20

  • Applicable standard articulated: “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives”

  • Seems to have formulated middle ground between rationality and strict scrutiny

  • Insufficient correlation between objective, promoting traffic safety, and statute

  • Maleness could not serve as proxy for drinking and driving since such small %

  • 3.2% is supposed to be non-alcoholic

  • Doesn’t make sense-only sale, not consumption, of alcohol prohibited

  • Poor fit between means of regulation selected and the end sought to be achieved. Too tenuous to constitute substantial relation between means and end

  • Stevens Concurrence: Law can’t possibly be doing anything of value-too stupid

  • Rehnquist Dissent: Mere rationality standard, would not have objected to intermediate-level scrutiny for discrimination against women, but no reason why if against males

  • Didn’t think % of males drinking and driving was relevant, but whether this % is higher than for women

 Today need “exceedingly persuasive justification” U.S. v. Virginia (1996)

  • does political power argue against strict scrutiny for particular group? Ely p.711


Michael M. v. Sonoma County Superior Court (1981) Rehnquist

  • Statute making men but not women liable for sexual intercourse with partner under 18

  • State’s asserted purpose of protecting teen pregnancy was held “important” and punishing man and not woman was held to be “substantially related” to achievement of end (Plurality)

  • Necessary (though not sufficient) condition for “benign” sex discrimination to be legal is that men and women are differently situated in a way relevant to statute’s purpose

  • Appeals to biological difference, pregnancy

  • Statute trying to equalize deterrence on sexes (women have pregnancy)

  • Enforcement of statute would be more feasible if girl exempted from prosecution (Argument that gender-neutral statute might not work)

  • Brennan and Stevens Dissent: Even if prevention of teen pregnancy was goal (which was suspect) male-only prosecution did not substantially advance goal

  • Statute that applied to women also would be even stronger deterrent

  • “Fact that a class of persons is vulnerable to risk that statute is designed to avoid is a reason for making the statute applicable to that class.”


Rostker v. Goldberg (1981) Rehnquist

  • Constitutionality of Congress’ decision to require men, not women, to register for draft

  • Deference owed to Congress’ decision, especially relating to defense and military

  • Men and women not similarly situated for purposes of draft



  1. Heightened Scrutiny and the Problem of Sexual Orientation

Watkins v. United States Army (1989) 9th Cir.

Steffan v. Perry (1994) D.C. Cir.
Romer v. Evans (1996) Kennedy 6:3

  • Colorado’s Amendment 2: Neither state nor subdivision shall enact, adopt, or enforce any statute, regulation, ordinance or policy whereby sexual orientation shall constitute any minority status, protected status or any claim of discrimination

  • Only be re-amending state constitution could gays obtain any protection against discrimination on the basis of sexual orientation

  • Used only mere rationality test but struck down

  • Rationale:

 gays are not put in same position as others, doesn’t just deny special rights, singles out

for worse treatment than other groups, forbids the safeguards that others enjoy or may

seek without constraint


  • there is wide protection of other groups

  • sets up separate lawmaking processes for pursuit of equal rights

 Am. seems inexplicable by anything but animus toward class that it affects

  • desire to harm is not a legitimate interest

 Co. argued related to protection of others’ freedom of association-not rejected as

legitimate state interest but means-end fit is fatally loose, breadth is so far removed



from this justification

  • Scalia Dissent: This is not different processes for equal rights, for special rights

  • Accused majority of taking sides in a cultural war political move, not judicial judgement

  • Inconsistent with Bowers v. Hardwick which majority doesn’t even mention

  • If it is constitutionally permissible for state to make homosexual conduct a crime, surely constitutional to enact other laws merely disfavoring that conduct

  • Thought it was ridiculous to call this group politically unpopular because believes they have enormous influence in American media and politics

  • 2 readings of Romer

  1. Struck down because the sweep is so broad that it must be understood to reflect impermissible animus and such an animus makes the law a violation of equal protection. This is an invidious animus case revealed by the breadth.

- much more tension with Bowers with this reading

  1. Unconstitutional because it gerrymanders the political process. Makes 1 group go through special hurdles. Selective restructuring of government processes. Violation of equal protection in its most fundamental sense to set up 2 different routes defined by groups who can use.

  • nothing suspect about group is needed

  • doesn’t make case turn on sexual orientation

  • this is how lawyers argued, doesn’t necessarily conflict with Bowers




  • Am. itself not very clear, could they have struck it down on vagueness grounds?

Vagueness is an intermediate constitutional tool


  1. Power to Enforce Reconstruction Amendments

  • § 5 of 14th Am. both Congress and the courts can enforce the amendment

  • What is the relation?

  • What is the difference between the judicial and Congressional interpretation of amendments?

  • 3 readings for Congress’ justification of § 5 violations:

  1. Substantive: Congress defines the violations (Most controversial) rejected in Boerne

  2. Remedies of Court defined violations (Least controversial)

  3. Prevention of Court defined violations that will likely occur in the future

  • Congress started aggressively using § 5 powers in modern civil rights era

  • With Commerce Clause, in 1937 Court realized it was a mistake to aggressively define the limits of powers under this clause, should be left to political process

  • Same question can be raised in this context, should court defer to political process?

Katzenbach v. Morgan (1966) Brennan

  • Congress enacted Voting Rights Act to enfranchise, prohibited states with history of voting rights violations from applying literacy tests

  • One way ratchet: FN 10: Congress can expand the substantive meaning of 14th Am. but it cannot dilute protections. If Court has decided a right exists, Congress cannot overrule this interpretation

  • § 5- Congress to enforce guarantees of amendment, no power to restrict, abrogate or dilute

  • Congress’ actions were viewed as being designed to combat what, in the Court’s own opinions, constituted past or prospective violations of Civil War amendments


City of Boerne v. Flores (1997) Kennedy

  • OVERRULES FN 10

  • Congress’ power to enforce post-Civil War Amends does not include the power to redefine substantive boundaries of the rights given by those Ams. (no more option (1))

  • Court alone can define the scope of Constitutional rights, even with rights where Congress has specific enforcement power

  • Court alone has power to give final meaning to Constitution (Marbury)

  • Congress has to be remedying right or protecting future right as defined by Court

  • H: Congress could not use enforcement powers to prevent local governments from unintentionally burdening individuals’ religious freedoms

  • Like Lopez, decision holding act of Congress unconstitutional, outside scope of grant of relevant powers

  • Could Congress pass anti-Davis statute? (Condemning practices with discriminatory effect, not purpose as Court said)

  • Could Congress outlaw death penalty

  • Under Boerne no

  • Makes sense why courts should define floor but why ceiling?

  • Justifications:

 Definition of rights is too important a process for Congress to be able to expand

without a Constitutional amendment

 Expansion of rights imposes costs on society-New rights limit availability of resources

for other rights

 Precedential impact- Less scrutiny and consideration


  • Criticisms:

 14th Am. was written with some notion that ideas would change and Congress should

have major role to play in giving meaning

 Institutional limitations of Court. Expansion through Congress would have more

legitimacy. Laws can be changed more easily.



Marbury only means no dilution of rights defined by courts

  1. Individual Rights: Theory and Practice




  1. Lochner era 1905-1934

  1. Economic Regulation

  • 1890s-1930s: Supreme Court found fairly expansive conception of due process within 14th

  • Court invalidated 200 state laws on Lochner type reasoning

  • Commerce Clause: No national power for certain issues, if regulated, at state level

  • Lochner cases: No level of government can regulate individual liberty protected by C

  • Substantive due process: Defining rights not specifically enumerated in text

  • This jurisprudence repudiated

Should Court ever be engaged in defining constitutional rights that are not enumerated in some way in the text?
Lochner v. New York (1905) Peckham

  • NY law limiting hours which a baker employee could work

  • Defended on two grounds:

  1. Valid labor law

  2. Protected health and safety of the workers

  • Labor law rejected, police power extends only to public welfare

  • This readjustment of bargaining power between employer and employee was not of sufficient public concern, more private

  • Infringed on the liberty of contract

  • Labor law is impermissible purpose

  • It would redistribute wealth in a sense from A to B

  • This deprivation of liberty/property cannot be done without due process of law

  • BUT isn’t the political process, passing of law by state, the quintessential due process?

  • How can due process be violated by lawmaking process?

  • There is some substantive component of due process that cannot be denied even with due process of law

  • Right to life, liberty, property not absolute but courts have to have acceptable public purpose

  • If class of people needed some special protection may have been valid as labor law

  • Court did not find bakers to be an especially dangered group (as it had with miners)

  • Long working hours did not affect public health and safety by making bread any less good

  • Any interest in guarding wholesomeness of bread could be satisfied by means which interfered less with freedom of contract

  • Court suspect of health and safety rationale, believed only actual motive was labor law

  • Court refused to give deference to legislative findings of fact, reached own factual conclusions

  • Majority’s test: Close fit between statute and objective and only certain objectives are acceptable

  • Health and safety acceptable; readjustment of economic power not

  • Slaughter House cut off possibility of this as violation of Privileges and Immunities Clause

  • If Bradley’s view had been accepted, all fundamental rights are protected by P and I Clause, would not have problem of rooting individual liberties in Due Process Clause which creates oddity of substantive due process (this is another route opening up to what was shut down in Slaughter House)

  • Field: Could this law be considered partial enactment or special legislation?

What is wrong with Lochner?



  1. There should not be understood to be any non-specific, non-enumerated individual rights in the Constitution

  2. Maybe there are some unenumerated , fundamental rights that are protected by 14th Am. but the right to contract is not among these rights. Overly broad reading of liberty

(but may raise problems about right to privacy cases which are premised upon a broad reading of liberty)

  1. Harlan Dissent: There was some evidence that statute would promote health and safety, Court should not have looked so aggressively at means/end connection, should not have second guessed legislative judgement

  2. Holmes Dissent: Too narrow conception of kinds of purposes that ought to be considered legitimate purposes on which state can regulate. Constitution does not embody 1 economic philosophy.

(This comes to be the modern position)

  • Maybe mistake was in treating right to contract as fundamental interest so that counterbalancing state interest had to be subject to strict-scrutiny rather than minimal-rationality review


Muller v. Oregon (1908)

  • Court sustained a law barring employment of women for more than 10 hours/day

  • Viewed women as group needing special protection


Adkins v. Children’s Hospital (1923)

  • Minimum wage law for women struck down

  • Freedom of contract rationale

  • How to reconcile 2 cases: Max hours promoting health objective; min wage only promoting lessening of economic inequality

- Decisions in Lochner era often seemed inconsistent



  • Unifying theme seemed to be Court’s perception of the actual motive




  1. Non-Economic Regulation

Meyer v. State of Nebraska (1923) McReynolds


  • Struck down state law which prohibited teaching foreign language to young children

  • Held that “liberty”, as used in 14th Am. included many non-economic but important rights

  • Right of teachers to teach, regulation interfered with occupational rights, and of students to acquire knowledge

  • Court appears to have used rationality test but concluded that the statute was without reasonable relation to any end within the competency of the state

  • Holmes Dissent: There is a valid interest in a common language in the U.S., stop the second guessing of legislative choices

  • More sweeping view of judicial restraint

Pierce v. Society of Sisters (1925) McReynolds

  • Struck down statute requiring children to attend public schools, preventing them from attending private and parochial ones

  • Rested on “liberty” of parents and guardians to direct upbringing and education of their children

  • Court denied state power to standardize by forcing public instruction

  • (If decided today, would have been First Am. or religious liberty case)

- If Lochner is wrong, are these cases also wrong?




  1. Modern Substantive Due Process- Economic and Social Welfare

  • By mid-1930s Court ready to abandon Lochner

  • Changes in Court; internal tensions in doctrine

  • Economic realities of the Depression, FDR and the New Deal convinced nations that aggressive legislative programs were needed to ensure nation’s economic survival

  • Large-scale government intervention in economic affairs was at odds with freedom of contract philosophy


Nebbia v. New York (1934) Roberts 5:4

  • NY regulatory scheme for fixing milk prices upheld

  • Court said due process requires only that law is not unreasonable, arbitrary or capricious and that the means selected shall have a real and substantial relation to the object sought

  • State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce policy by legislation adapted to this purpose

  • Used same substantial means-end test as Lochner but Court would not impose upon legislatures its own views about correct economic policy

  • First sign of undermining

  • Accepts redistribution of economic power as legitimate ends

  • McReynolds Dissent: This means will not bring about end


West Coast Hotel Co. v. Parrish (1937) Hughes 5:4

  • Explicitly overruled Adkins

  • Upheld state law establishing minimum wage for women

  • State’s interest in protection of women’s health BUT gave substantial weight to state’s interest in addressing women’s inferior bargaining position this was considered a legitimate limitation on freedom of contract

  • More expansive conception of public purposes that are permissible bases on which to regulate (deals with the ends problem of Lochner)


U.S. v. Carolene Products (1938) Stone

  • Federal prohibition on interstate shipment of “filled” milk is sustained against a due process attack

  • Nebbia and West Coast preserved real and substantial relation between regulation and state objective

  • Here, this degree of scrutiny abandoned

  • Presumption of constitutionality

  • Extremely deferential to legislative fact finding

  • No longer scrutinize means, no second guessing of legislative judgement

  • Minimum rationality test now applied

  • Whether statute bears a rational relation to a legitimate state objective

  • Was a mistake to aggressively pursue means/end with economic regulation

  • BUT FN 4: If there is a suspect classification, different standard may be appropriate

  • Even this minimum scrutiny gets lessened in subsequent cases


Williamson v. Lee Optical Co. (1955) Douglas

  • Court is not even going to look into the issue

  • Very hands off attitude

  • “Might have concluded” is sufficient- Court’s tendency to hypothesize reasons in support of economic regulation


Ferguson v. Skrupa (1963) Black

  • Kansas law prohibiting non-lawyers from engaging is debt adjustment sustained

  • Court refuses to sit as superlegislature

  • Even less scrutiny

  • Criticism that law was upheld for virtually non substantive reason




  1. Modern Substantive Due Process: Privacy, Personhood, and Family

  • gradual reemergence of Meyer/Pierce branch of substantive due process




  1. Right of Privacy

Griswold v. Connecticut (1965) Douglas 7:2

  • First major modern-era case which used a substantive due process like approach to protect a fundamental right

  • CT law which forbade use of contraceptives or aiding or counseling others in that area, made it a criminal offense

  • Directors of Planned Parenthood convicted of counseling married persons

  • What is conception of right that leads to striking down statute?

  • Substance of the decision: What is the nature of the fundamental right?

  • Right to privacy- notion about marital privacy and question of enforcement, invasion of physical spaces

  • Declined to make explicit use of substantive due process doctrine

  • Instead, held that several of the Bill of Rights guarantees protect the privacy interest and create a penumbra or zone of privacy

  • Right of married persons to use contraceptives fell within this penumbra

  • 1st Am: Explicit protections of freedoms of speech and press has emanations which create a penumbra: protects freedom of association, freedom not explicitly mentioned in text of Constitution

  • Similarly, 4th Am: Ban on unreasonable searches has penumbra which protects privacy interests, as do 3rd, 5th, 9th, Collectively, establish a zone of privacy which is protected from governmental intrusion

  • Didn’t say exactly how statute violated penumbra of privacy Suggested privacy implications of proof

  • Stresses this is not Lochner returning

  • Resurrecting scope of fundamental rights but leaving Lochner dead

  • Goldberg Concurrence: Believes 14th Am’s Due Process Clause protects all fundamental rights, whether or not explicitly listed in Bill of Rights

  • 9th Am: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”-reflects view that Framers believed fundamental rights exist that are not expressly enumerated in the first 8 amendments

  • Just as 9th showed certain rights not enumerated in Bill of Rights were protected against federal government, 14th Am. should be found to protect against state action fundamental rights not included

  • “marital privacy” among these rights

  • Statute violates right because it was not necessary for fulfilling of compelling objective

  • Harlan Concurrence: “Ordered liberty” approach

  • Due process clause does not only incorporate specific Bill of Rights guarantees but stands on its own bottom to protect those basic values implicit in the concept of ordered liberty

  • Relied on his dissent in Poe v. Ullman- statute violated due process interest in marital privacy

  • Stopped short of finding general right to privacy for sexual relations, no protection outside of marriage

  • Distinguished adultery, homosexuality… by noting state allows and encourages marriage and should not be permitted to use criminal law to regulate the intimate details of that relation

  • By contrast, state forbids other types of sexual relations, so it may be permissible to regulate

  • White Concurrence: Focused on means/end relationship

  • Would have upheld if statute had been reasonably necessary for effectuation of legitimate and substantial state interest

  • But statute, supposedly serving interests of policy against promiscuity and illicit sex, was drawn too broadly

  • No need to ban birth control for married couples

  • Black Dissent: Only those rights explicitly mentioned in Bill of Rights are protected

  • Stewart Dissent: Similarly, failed to find a right of privacy in any specific guarantee, rejected Goldberg’s 9th Am argument, saying it limits only powers of federal government (He reverses his view in Roe)




  • Criticisms:

 Jump from specific privacy to general privacy. Could be argued that when

Constitution sought to protect private rights it specified them; fact that explicitly

protects some elements of privacy and not others suggests it did not want to protect

those not mentioned

 Penumbra theory seems like it would be equally applicable to many property or

economic rights, as well as personal, and therefore these rights would get equal

scrutiny

 Focuses on having to search bedroom but that is not issue at all in this case


Eisenstadt v. Baird (1972) Brennan 6:1

  • MA statute prohibiting distribution of contraceptives to unmarried persons

  • Court struck down as a violation of Equal Protection- provided dissimilar treatment for married and unmarried persons

  • Extended reach of Griswold to unmarried people

  • Purporting to use traditional rational basis review

  • None of the interests asserted was sufficient to justify challenged classification

  • Deterrence of premarital sex: Couldn’t really be purpose because statute didn’t prohibit contraceptives to prevent disease, riddled with exceptions and it would be unreasonable that pregnancy and birth of unwanted child is used as punishment for fornication

  • Health needs rationale does not serve to distinguish between married and unmarried

  • Can’t be sustained on moral grounds

  • If right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into fundamental decision of having a child




  1. Abortion

Roe v. Wade (1973) Blackmun

  • Decision premised upon right to privacy

  • Court pointed to Griswold; Meyer; Pierce- privacy derived holdings

  • Right of privacy, part of “liberty” guaranteed by 14th Am, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy

  • Held woman’s interest in deciding issue herself was a fundamental interest which could only be outweighed by compelling state interest and if statute is narrowly drawn

  • Strict scrutiny applied

  • 2 state interests which could be compelling:

  1. Protecting health of mother: But abortions no longer pose significant health risk

- only compelling after first trimester where abortion risks > live birth risks

  1. Protecting the viability of the fetus: Only during last trimester, when fetus is viable

  • fetus is not a “person” as term is used in 14th Am. Is a “potential life” that sates can respect and legislate in certain ways

  • Controversy seems to be located more in whether state interest in recognizing potential life is strong enough to justify burden of pregnancy

  • Is this interest sufficiently compelling?

  • Stewart Concurrence: Reverses Griswold dissenting position. Accepts both cases as substantive due process cases. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by Due Process Clause of 14th Am.

  • This is really what’s going on, cannot be running away from substantive due process because of fear of resurrecting Lochner

  • Douglas Concurrence: 14th Am protects freedom of choice in basic life decisions respecting marriage, procreation, contraception, children…which can be subject to regulation for compelling state interest, but statute’s near-complete prospcription of abortion went beyond such state interest

  • White Dissent: Court is imposing its own value scheme. Relative weights to be assigned to mother’s right and state interest in protecting potential life should be left to the people and the political processes

  • Rehnquist Dissent: Mere rationality test should be applied, some abortion regulations could meet this standard. Criticized majority result as being “judicial legislation”




  • Court may have thought this decision would bring resolution and certainty to issue

  • Actually had opposite effect-polarized sides and fragmented public discussion (analogous to Dred Scott in this way)



  • Criticisms:

 What is at stake is much broader than Court characterized. Ability of women to be full citizens is affected by choice about pregnancy

Regan: Abortion issue should be grounded in Equal Protection



  • U.S. law does not force people to give up organs… not grounded in Good Samaritanism. Prohibiting abortion, forced pregnancy, imposes an affirmative obligation on women that we find nowhere else in the law

  • This is a selective burden on women, violates equal protection

  • BUT this allows for possibility that abortion laws would be permissible in states that had Good Samaritan laws imposing similar sort of burden


Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

  • Majority of Court declined to overrule Roe explicitly

  • But abortion status as fundamental right, in ability of state to regulate in 1st trimester, and trimester framework overturned

  • States may restrict abortion so long as they do not place undue burdens on the woman’s right to choose

  • Stevens/Blackmun wanted to reaffirm Roe

  • Rehnquist/White/Scalia/Thomas: Wanted to overturn

  • O’Connor/Souter/Kennedy: Reaffirm central principle but allow states to regulate more




  1. The Right to Die

Cruzan v. Director, Missouri Department of Health (1990) Rehnquist 5:4

  • Parents claimed that Nancy had a 14th Am due process right not to be kept alive by unwanted medical procedures

  • Some evidence that she said she didn’t wan to be kept alive in comatose condition

  • Missouri Supreme Court: Interpreting living will statute, needed clear and convincing evidence

  • S.Ct: Agreed that continuation of life-sustaining procedures here did not violate 14th Am rights

  • H: Competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment

  • Could be outweighed by state’s interest in preserving life but was willing to assume (without deciding) that person would have right to refuse these procedures and right would outweigh any countervailing state interest

  • But Nancy not competent. State interest in protecting life is strong enough that state is entitled to guard against potential abuses and require clear and convincing evidence

  • No substituted judgement of family allowed absent proof that these views were what Nancy’s would have been

  • Scalia Concurrence: Did not believe there is constitutionally protected interest in refusing unwanted medical treatment

  • In this case, equivalent of right to suicide and nation’s law and constitutional tradition gave the states unquestioned power to prohibit suicide

  • Brennan Dissent: Interest in declining unwanted medical treatment far outweighed any general countervailing state interest in preserving life

  • Stevens Dissent: Where no prior expression of intent, patient’s best interests, not state’s general policy in favor of preserving life in all instances, must control


Washington v. Glucksberg (1997) Rehnquist

  • 5 Justices seem to take O’Connor’s position seems to really be Court opinion

  • O’Connor Concurrence: No generalized right to commit suicide

  • All agree there is no such generalized right to choose timing and manner of death

  • May disagree in a narrower category of cases identified by O’Connor, see below

  • She suggests that a state law interfering with right to get pain medication, even it killed person, may be unconstitutional

  • Defers much of the issue because there are no s (they have died already)

 Only facial challenge to statute

 No “as applied” challenge because no s



  • Justification for this is that when Court makes a conclusive decision closes the issue, no more room for compromise (Roe)

  • Before making a determinative decision, Court might benefit from knowing more, see what lower courts are doing, wait and see legislative answers

  • Tremendous contrast with tenor and form of decision in Roe: maximal constitutionality, sets out framework for how right is to be assessed throughout pregnancy first time Court encounters issue

  • Here, responding to it not having been the best idea to define constitutionality first time

  • Souter Concurrence: We should let experimentation go forward before reaching final Constitutional decision

  • More chastened, minimalist view of proper role of Court

  • Breyer Concurrence: Right to die with dignity

Methodology of Substantive Due Process Issues:



  • If there is some power to recognize unenumerated rights, by definition rights are not textually based so nothing in Constitution resolves this question, what should be the methodology?

Scalia/Rehnquist: Specific: Rights in question should be thought of in specific, reference to historical background of American law

  • anchor in legal, political practice, characterize practices at specific level

Souter: Generality: Look at U.S. past practices, characterize interest more broadly

(e.g., general domain of sexual choice vs. homosexual sex in Bowers)





  1. Structural Issues Revisited: The Presidency, Congress, and the Courts

  • Federalist No. 47 and 48: Don’t require 3 branches to be wholly unconnected with each other but need separation to protect from danger of tyranny

  • Accumulation of all powers in same hands is the definition of tyranny




  1. Executive Authority

  • Powers granted to President Art. II

 Powers of Commander-in-Chief of the Army

 Power of duty to take care that laws of U.S. are faithfully being executed



 Certain powers implied by virtue of executive power being invested in President

  • President cannot make laws, can only carry them out



  1. Presidential Seizure

Youngstown Sheet & Tube Co. v. Sawyer (1952) The Steel Seizure Case Black

  • During Korean War, President Truman sought to avoid strike in steel mills

  • Issued executive order to seize mills and operate them

  • Court struck down the seizure order, concluding that it was an unconstitutional exercise of the lawmaking authority reserved for Congress

  • Black: President’s order, coming without consent of Congress, was a clear usurpation of congressional lawmaking power

  • Could not be justified under “Commander-in-Chief” Power: Seizure of private property too far removed from theatre of war

  • Could not be justified under power to see that laws are faithfully executed- very language of clause shows President must carry out laws, not make them

  • Formal view: Metaphor of separation of powers

  • Cannot cross lines, President is making law, unconstitutional

  • Frankfurter Concurrence: Customs, based on past precedent, past political practices that have emerged under the Constitution, this can’t be done (See Marshall’s opinion in McCulloch)

  • Madison signed bank in even though he hadn’t thought it to be constitutional, it became settled through practice that it was

  • Power asserted here is such a dramatically different kind of assertion of Presidential power

  • Aberrational invalid

  • References to totalitarianism government in Germany and Italy

  • Jackson Concurrence: Most famous and enduring opinion

  • Tri-partite structure of analysis; relational-dependent on what Congress has done

  • President’s powers “are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress.”

  1. When President acts pursuant to express or implied authorization of Congress, acting with all legislative and executive power, his authority is at its maximum  strong presumption of constitutionality




  1. When President acts in the absence of either congressional grant or denial of authority, twilight zone where powers of Congress and President may be concurrent or distribution is uncertain

  • It ought to matter to constitutional analysis what Congress does, Congress can turn President into a lawmaker (different from Black’s view)




  1. When President acts in contradiction to express or implied will of Congress, power at lowest ebb, only allowed if Constitution gives President exclusive power

  • Jackson believed this case fell in category (3) unconstitutional

  • Looks to a series on statutes around the issue, nothing exactly on point

  • Concludes that statutes reflect spirit not to allow President to do this

  • Willing to infer prohibition

  • Functional view: Checks and balances

  • Political branches given more space to work out arrangements and accommodations (similar to Souter in Glucksberg)

  • This approach puts more responsibility on legislature



Dames & Moore v. Regan (1981) Rehnquist

  • Deal with Iran-suspension of all contractual claims against Iran then pending in U.S. courts

  • Court upheld the suspension as within the President’s constitutional authority

  • While Congress had never explicitly delegated this power, implicitly authorized practice by long history of acquiescing in similar presidential conduct

  • Statutes in background, not directly on point, like with Steel Case, BUT here congressional silence interpreted as implied authorization, acquiescence in Steel Case interpreted as prohibition

  • Congress did not do anything after the fact to express disagreement

  • Post-act implicit ratification

  • Stressed the limited scope of its holding

  • Not holding that President had constitutional authority to settle or suspend all claims

  • H: Where such settlement or suspension is a “necessary incident to the resolution of a major foreign policy dispute” AND Congress has acquiesced in that type of presidential action

  • Fact that Congress has impliedly consented will not be enough by itself-merely a factor

  • Here, President’s general executive authority in foreign policy matters (and maybe Commander-in-Chief powers) were probably also relevant

  • Would not have made sense for constitutional law to conclude President does not have power like this to deal with foreign governments in crisis

  • Seems hard to imagine President not having this power

  • Long standing practice of presidents doing this type of thing, not that exceptional

  • Past practices are relevant (See Frankfurter concurrence in Youngstown)




  1. Executive Privilege
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