Brandeis University Politics Department

Professor Peter Woll

Politics 115a

Fall 1998

TA Lecture Notes

Amy Burke and Susan Schantz

Sept. 9.

Sept 10.

Oct. 8.

Oct. 14

Oct. 22.

Oct. 26.

Nov. 2.

Nov. 4.

Nov. 5

Nov. 11

Nov. 12

Nov. 16

Nov. 17

Nov. 19 Constitutional Law: Class Notes for Sept

Constitutional Law: Class Notes for Sept. 9, 1998

Bill of Rights



Article I:

Commerce Power

Congress shall have the power to regulate "commerce among the states"

Federalism issue

McCulloch versus Maryland led to the supremacy of national power

Commerce Clause issues = the dominant constitutional issue from the founding through the first third of this century

Article II

Executive Power

Separation of powers issue

Clinton versus Jones (1997)

U.S. versus Nixon (1974)

Article III

Judicial Power

Marbury versus Madison: judicial review

Due Process

Common Law

14th Amendment

5th Amendment

no state shall deny a person life, liberty or property without due process

While the Constitution sets down the law of the land, the Constitutionís social contract is undergirded by natural law, which refers to the notion that all people have a natural right to life, liberty, property, etcÖ. People consent to government, in part, to protect their natural rights.

Constitutional law, of course, revolves around attempting to understand exactly what the Constitution means. Judges often rely on common law (judge made laws) to guide their interpretations. Often common law is codified, such as in the Sherman Anti-Trust Act. Textual analysis, while an important starting point, often provides little insight into the complexity of legal issues. And, as was the case with the Commerce Clause, there is sometimes little common law to guide judicial interpretation. Some argue that the Constitution should be interpreted based on the original intent of the founders, including the delegates to the constitutional convention and the state-level ratifiers. Obviously, attempting to aggregate the intent of so many individuals is impossible. As a result, judges often interpret the Constitution in a normative manner.

More recently, certain separation of powers suits have come to the foreground of constitutional law. In Clinton versus Jones, for instance, the Supreme Court was asked to decide whether a noncriminal suit can be brought against a sitting president. Although Clinton argued (rightly) that the suit would undermine his presidential authority, the court, in a unanimous decision, said such suits can be brought.

Judicial power, as noted above, is another important area of constitutional law. Due process matters also involve constitutional law. Common law in this area dates back to efforts by judges in early Anglo courts to define judicial responsibilities. In this countryís federalist system, states were added to the mix by the Constitution, which expanded the scope of due process.

<A NAME="sept10"></A><H4>Constitutional Law: Class Notes for September 10, 1998</H4>

Marbury v. Madison (1803)

1. original jurisdiction Article III

2.writ of mondamus (common law writ) to Madison Secretary of State

3. judicial review, Federalist #78

Congress is currently looking at the Starr Report. A dictionary definition/ textual examination of the Constitution doesnít help.

Text of Constitution: High crimes and misdemeanorsówhat does this mean?

Could the Supreme Court overrule an impeachment conviction? This is an issue of separation of powers. Impeachment is a Congressional power, so an overruling by the Supreme Court would be quite dubious. There is no higher law or precedent. The court would probably have self-restraintóthey back down when confronted with strong political opinion. (As they did in Marbury v. Madison.)

Why is our Supreme Court uniquely powerful compared to courts in other countries?

[Started with 5, now 9 justices. Five justices is a majority unless someone recuses him/herself for a conflict of opinion. Professor Woll recommends Blackís Law Dictionary.]

The power of judicial review is uniquely American- the power to review a legitimate case-in-controversy, the power to overturn a law of Congress, or overturn a state action. Congress gave the court authority to review state actions.

The Anglo tradition of judicial review does exist, which means to interpret law but not overturn law. This began in the 17th century with Common Law Courts, which were decreed by the King but became independent. They were the guardians of a higher law that superceded Parliament and the King. With the Glorious Revolution in 1688, the laws of Parliament became supreme and the courts lost their ability to overturn them. Thus the concept of judicial review is deeply embedded in Anglo common law tradition.

1792, the U.S. Supreme Court refused to accept delegation by Congress of a non-judicial power that is a non-final action. Courts are only for cases-in-controversy.

In colonies and the States, the power of judicial review was never in question. That part of the Marbury v. Madison case was unquestioned.

The courts reflect politics by other means:

The tradition of judicial review is based on Lockeís idea of higher law. Everyone is subject to the law, including the President.

The courts exercise judicial self-restraint when facing political issues that their intervention in would undermine their credibility (Marbury v. Madison is an example of this.)

Chief Justice Marshall took the case to issue the opinion that he didnít have jurisdiction and to "read the riot act" to Jefferson. He adds in the opinion that the appellate courts have the power of writ of mandamus and the Supreme Court has judicial review power.

Dred Scott decision: Justice Taney wrote the opinion that slavery cannot be banned in the Territories, according to the due process clause which protects property rights. This was a controversial decision and was the only significant 19th century case in which the court inserted itself into a politics.

(Only about 200 federal laws have been declared unconstitutional.)

1934-1937: The Court did so very much by using the commerce clause to knock down New Deal legislation. Again, this was controversial. Secretary of the Interior, Ickes, came up with a court packing plan. In 1938, in the Carolene Products case, 6 justices signed a footnote that noted an incremental switch in commerce clause interpretation to favor civil rights and liberties.

With these exceptions, the Supreme Court has had no impact on political process, although they have intervened a lot on state actions. Lochner v. New York, Brown v. Board of Education, and Roe v. Wade are two of many prominent cases. The Court has gotten away with this because in the U.S. weíve never had a monolithic majority. Our system is fragmented and dispersed. Interests have used litigation for policy creation purposes because a legislative majority is too difficult to muster.

Constitutional Law Notes for October 8, 1998

Constitutional Law Notes for October 8, 1998

Doctrine of Standing- One of the most important theories of constitutional law. Standing can be expanded or contracted, depending on judgesí attitudes. *Politics by other means- use the courts to direct actions of executive branch, implement a particular public policy, and executive action is always discretionary

How you define standing determines how much the courts are open to influencing policy.

Self-restraint- narrow definition of standing, courts say they donít have an appropriate role in


Activist- courts are active, sympathetic to interests seeking policy change.

Thus standing is a surrogate for policy-making.

1060ís- Much turmoil, i.e. Civil Rights Movement, anti-Vietnam demonstrations, etc. There was a rise of public interest pressure groups, i.e. Ralph Naderís organization, using litigation for policy change.

Environmental groups were especially powerful, countered corporate interests/ profit motive.

Much of the environmental movement played out in the courts because Congress passed broad statutes (i.e. 1973 Endangered Species Act) in late 60ís/ early 70ís. In the ESA, Congress provided standing for citizens in the law to use courts to implement the act. "a citizen suit" to challenge executive secretaries.

The problem- Itís not up to citizens, but should be executive power, Scalia said this violated Art II separation of powers.

Federal district and circuit courts were very sympathetic to the environment, so they expanded the understanding of standing- they were activist courts.

1073- Sierra Club filed suit in northern California, challenged Mortonís (Secretary of Interior) authorization for building a resort in the Sierras and highway construction in Sequoia National Park. They challenged that Morton violated federal law, consideration of standing was a threshold issue, on the basis that the Sierra Club has a bona fide interest in the environment, as a representative of public interest, but there was no claim of injury, which Scalia later (1982) said you had to have.

The Supreme Court majority said standing was too expansive in Sierra Club, (There was a dissenting opinion by Douglas.) because there was no claim of injury. Thus absent a seasonable claim of personal injury, there is not standing. "Do trees have standing?" Douglas used this article to argue that injury is to trees, so trees have standing.

This litigation stopped the resort due to Walt Disneyís withdrawal (bad media attention). Could have been re-litigated claiming injury to trees.

Mid 1970, Inter-state Commerce Commission had to decide whether to grant preferential treatment to recycled products. SCRAP suit filers claimed that failure of ICC to change rates leads to litter, which is an injury to them, also claimed that failure to recycle damaged resources, thus another injury. SCRAP gained standing, so if you can claim injury, you get automatic standing. The contemporary Supreme Court says you must do more than just claim injury: in Alan v. Wright, OíConnor says interest is remote, but she doesnít say (as Scalia does in Lujan) that separation of powers is at issue.

Lujan v. Defenders of Wildlife- Endangered Species Act says no federal funding can support a project that harms animal on endangered species list. Executive secretaries promulgate a regulation that this includes all domestic and international projects (i.e. in foreign aid). Executive wanted to withdraw the foreign aspect of the law, so defenders of wildlife filed suit, claiming that this change was a misinterpretation of statute. Lower court dismissed the suit for lack of standing according to Alan v. Wright.

Defenders appealed to Supreme Court: Scalia says these are insufficient claims of standing, Article II gives executive discretion, citizen suits violate Article II.

Con Law October 14

Constitutional Law Class Notes October 14

Separation of Powers:

The purpose behind separation of powers was to create a deliberative government and a balance of power between the president and Congress.

The Supreme Court, in this sense, is not part of the constitutional separation of powers. Its goal is, in part, to ensure that one branch does not encroach on the powers of the other.

Steel Seizure Case:

Black argued that the president could not seize the steel mills because the president is not vested with the power to do so because that power belongs to the legislature.

Allowing the president to seize the mills would let the president encroach on legislative powers, which also would be an aggrandizement of presidential power.

The dissenting opinion argued that the power to seize the steel mill is an executive power, an executive power being the power to carry out laws.

Under the adverse possession rule (a common law term) the president could seize the mill because, without timely objection, the person who possesses a power comes to own that power. Since Congress hadnít objected to the presidential power to seize such powers during times of emergency, the power to seize the mills became a prerogative power of the presidentís.

Under Jacksonís typology of power, power is greatest where there is constitutional support for the power.

A constitutional definition of power suggests that the greatest presidential authority is in the areas of congressional authority that remain unclear, which enables the president to step in.

Dames and Moore v. Regan case:

The main difference between this case and the Steel Seizure case is that Dames and Moore involves presidential power in foreign affairs. Congress typically acquiesces to the president in matters of foreign policy. The president negotiated what was, in effect, a treaty of sorts to end the Iranian Hostage situation, and the court affirmed the presidentís power to do so.

Con Law Notes for October 22, 1998

Con Law Notes for October 22, 1998

Despite more recent history in which civil rights and civil liberties cases have dominated the Supreme Courtís agenda, Commerce Clause cases actually occupied most of the Supreme Courtís attention during most of its history. The 1938 Caroline Products footnote, however, ushered in the contemporary era by proclaiming that judicial activism in commerce clause cases was a thing of the past. Instead, the court would begin moving toward more active review of civil liberties and civil rights cases. This led the court toward an active stance of protecting minority rights.

Constitutional cases today involve those types of cases mentioned above, including right to privacy cases, freedom of expression cases, the death penalty, school prayer, affirmative action, etcÖ. In the 19th century, none of those topics would have been addressed by the Supreme Court because there had been no civil rights amendments so they werenít constitutional issues.

The Lopez case was surprising because the court used the commerce clause to strike down a gun control statute. The Commerce Clause was crafted to end commercial warfare between the states, but its exact meaning has remained clouded. The clause gives the Congress the power to regulate commerce among ("intermingled with") the states. What exactly among means and what exactly constitutes commerce has been much debated. In the 1895 US v. EC Knight case, the court said that the Commerce Clause applies to interstate commerce or activities that impact interstate commerce. The clause has generally been read as giving Congress broad powers to regulate commerce. The courtís activist interpretation of the clause enabled the court to declare much of the early New Deal legislation unconstitutional.

Con Law for October 26, 1998

Con Law Notes for October 26, 1998

The Commerce Clause was not derived from either common law or jurisprudence. Thus there have been no common law or due process traditions to help judges define the Commerce Clause. As a result, there have been a series of substantive rulings that seek to define that which is difficult to actually define, namely exactly what the Congress and states can do.

In the E.C. Knight case, the court ruled that the government cannot bring a case against E.C. Knight Co. even though it controls 95 percent of sugar industry manufacturing. The Justice Department brought the suit against the companyís monopolistic behavior under the Sherman Act. It lost because the court ruled that manufacturing does not equate to commerce. E.C. Knight contradicted Gibson v. Ogden, which had broadly defined commerce.

In 1914, the Clayton Anti-Trust Act created the Federal Trade Commission, which was empowered to enforce the Sherman Anti-Trust Act and Clayton Anti-Trust Act. The FTC was needed because courts had not been enforcing the Sherman Act. In response, the FTC was given the authority to bring suits on its own.

In the 1914 Shreveport case, the court said the Interstate Commerce Commission had the authority to regulate intrastate railroad rates when those rates affected the flow of commerce (such a broad reading of the Commerce Clause harkened back to the Gibson v. Ogden ruling).

In the 1918 Davenport case, the court said, in a conservative ruling, that Congress cannot regulate child labor because it is a state issue, and child labor, according to the court in this case, was not commerce.

In the 1903 Champion case, the court said Congress can use its authority to regulate commerce to regulate the sale of lottery tickets, which are a type of commercial activity.

Lecture Notes for Nov. 2.

Con Law Notes for November 2, 1998

Con Law Notes for November 2, 1998


This weekís cases involve questions of racial discrimination, which became constitutional matters in the wake of the Civil War amendments. While the 14th

Amendment outlaws discrimination based race, it only outlaws state action. For instance, when examining the question of whether a university like Brandeis could legally discriminate, the case would have to be made that Brandeis is an arm of the state. The 14th Amendment was aimed at state legislatures and was designed to end state discrimination against former slaves. To win a case making use of the 14th Amendment, the discrimination must be tied to state action and an intent to discriminate must also be found.

In Washington v. Davis, the plaintiffs could not make their case using the 14th Amendment because D.C. is not a state. Instead, their case was made using the due process clause of the 5th Amendment, which incorporates equal protection. While the use of test 21 by the D.C. police force clearly decreased the number of African Americans on the police force, a discriminatory effect isnít always enough to prove discrimination because there must be an intent to discriminate.

In Yick Wo v. Hopkins, the plaintiff argued that a San Francisco Board of Supervisors rule that laundries cannot be operated in wood building was really designed to discriminate against Chinese residents because all applicants by Chinese individuals were turned down whereas those by non-Chinese were not. The Supreme Court of California upheld the cityís rule, holding that there was no intent. The Supreme Court, however, held that the rule was invalid because it had both a discriminatory effect and had been designed with a discriminatory intent. Clearly, state action was directly involved, given that cities are agents of states. Even though there wasnít proof of intent, the court accepted the overwhelming discriminatory effect of the rule as proof of intent. Where as in Washington v. Davis, the test was administered to all would-be officers, and all black applicants didnít fail. In the Wo case, it is also important to remember that the 14th Amendment protects all persons and not just citizens.

In the Slaughterhouse cases, the Supreme Court held that the 14th Amendment was designed to protect newly freed slaves, which raises the question (see p. 146 of text) of whether the treatment of Chinese individuals amounted to slavery. Miller, in the Slaughterhouse cases, argued that, in the future, any intent to enslave a race would be prohibited by the 14th Amendment. A more liberal interpretation of the amendment would certainly say that it also prohibits all types of racial discrimination.

In Fletcher v. Peck, the court held that the intent of legislators cannot be taken into account. Whether the court accepts a discriminating effect as proof of intent is not a settled matter. In Lightfoot, the court held that the effect of gerrymandering was discriminatory enough to prove intent. In Palmer v. Thompson, however, a town closed all of its pools rather than opening them to blacks. Justice Black held that, because of Fletcher, it was not up to the Supreme Court to evaluate the intent of legislators. So, sometimes a discriminatory effect is enough to prove intent, but sometimes it isnít.

Lecture Notes for Nov. 4.




Proving Intent

Fletcher v. Peck, Palmer p148

Arlington Heights p 155

Personal Ad v. Feeney p 55

Korematsu p134

Strict scrutiny- requires compelling government interest (cf Carolene Products fn)

Suspect classification

Levels of Scrutiny- strict- intermediate- rational basis

Civil Rights Cases- 5th and 14th Amendments, "necessary and proper" clause, appropriate legislation to enforce, state action

Section 5 of the 14th Amendment- Congress must enforce the 13th- 15th Amendments through proper legislation. What is appropriate judicial review for this, versus a review of state action? There are two sets of cases.

State Action Cases

i.e. Washington v. Davisóalleges discrimination in hiring police officers.

Arlington Hts- a zoning ordinance prohibits a developer who wants to put in multiple units, potentially for low-income housing.

How do you prove injury, according to the standards for standing in Lujan and Allen v. Wright? According to Washington v. Davis, to prove a violation of equal protection, you must prove intent to discriminate, or rather, you must have evidence (even if not proof) of intent. Justice Powell says that even statements of intent are not enough evidence of intent, you must have more than that, and the effect of the ordinance is not enough unless a pattern of discrimination emerges.

Fletcher v. Peck- reduced plaintiffís ability to probe for intent- the Supreme Court said it is improper to take into account intent of a legislature who passes a statute.

Palmer- Justice Black said the same thing.

Personal Ad- equal protection does not cover non-veterans as a classification of historical discrimination, so this case was brought as one of gender discrimination instead. The court found that there was no intent to discriminate so the effect of discrimination does not count.

1944, Korematsu- a Japanese-American interned during WWII challenged the internment ex post facto, according to due process and equal protection clauses. The court held, 8-1, that this is a racial classification that was suspect. This was the first use of the word "suspect" in law. The court made this finding due to the history of discrimination.

Classification versus Class Approach- any racial classification is assumed to be suspect, and the burden of intent falls on the defendant.

A racial class has no assumption of discrimination and is not suspect, but it is seen as beneficial (affirmative)

1st level of scrutiny- if a classification is suspect, then the court uses strict scrutiny (according to Korematsu). Also used more generally, close scrutiny, in Carolene Products fn, which shifts the burden to government to prove a compelling state interest. Justice Black upheld this classification and Douglas agreed.

With regard to women: Lots of laws exclude women from political rights. Many stigmatized women, even when they were meant to protect them. Historically, women have not been as bad off as African-Americans. Therefore, there is not strict scrutiny as there is for race, but rather intermediate- 2nd level- the government only has to prove an important interest. Thus is a semi-suspect classification.

3rd level scrutiny- economic classification, it is discriminatory, but a rational basis test is used, i.e. in the Slaughterhouse cases.

Lecture Notes Nov. 5

Constitutional Law Notes for November 5, 1998

Constitutional Law Notes for November 5, 1998

Constitutional 14th Amendment requirements to be met to void state action:

direct state involvement: only state action is covered by the 14th Amendment

intent to discriminate


When there is a classification used to challenge equal protection, the court will attempt to determine whether the classification is facially neutral, meaning that the legislature passed the law because of a policy that has nothing to do with gender.

Racial classifications are automatically suspect

Affirmative action has been considered not a racial classification but a classification used to forward certain policy goals.

Until affirmative action, all racial classification were considered suspect

To determine whether a classification discriminates, the court must decide whether the treatment was designed with the intention to discriminate.

To void state action under the 14th Amendment, the above two conditions must be met. Plus, there must be an injured party to bring a suit:

A conservative would want to know that the state knowingly permitted and approved the discrimination. A more liberal court would be satisfied with the fact that, for example, the restaurant in question is in a state owned building.

Shelley v. Kramer: anything occurring in courts = government action.

The court has ruled that a restrictive covenant doesnít violate the 14th Amendment because people/organizations have the right to exclusion

In Burton, the state probably didnít mean to discriminate, but the court said that allowing the restaurant to operate served to establish proof of intent.

The definition of state action is, therefore, expanded or contracted through a courtís subjective understanding of the term. Courts thereby substantively define a policy.

As the 14th Amendment doesnít cover private contract, the federal government cannot impair the right to contract. However, if the court enforces a contract, that would be state action. Anything that takes place in a state court also is considered state action. The court decided this as a way to limit restrictive covenants. Strict constructionists would probably disagree with this substantive understanding of state action.

The intent of section 5 of the 14th Amendment wasnít to establish a national policy of equal protection, but to banish state supported slavery and discrimination toward former slaves. The issue of affirmative action policies is therefore problematic.

Nov. 11 TA Lecture Notes

Constitutional Law Notes for November 11, 1998

Constitutional Law Notes for November 11, 1998

The question that runs through all of these cases is: Can Congress create constitutional rights?

Congress canít define what is constitutional, only the Supreme Court can, according to Marbury v. Madison. This is not so in England, where Parliament does.

A substantive reading by the Supreme Court of the 5th Amendment federalized the equal protecition clause of the 14th Amendment.

Adarand- says that racial minorities have a right under equal protection to contract under federal programs.

Morgan: Congress can redefine the equal protection clause to ban literacy tests where there is no history of discrimination. . . (This overturned a New York state law. Under Lassiter, a literacy test is not unconstitutional) . . . because discrimination is an effect not an intent. Strict scrunity did not apply to Puerto Ricans, because there was no history of discrimination against non-Puerto Ricans. Morgan created a substantive constitutional right.

Boerne: Congress pass a law, the Religious Freedom Reformation Act, which provided that meither the federal or a state government could abridge the exercise of religion absent a compelling government interest. Under what authority did Congress pass this law? 14th Amendment, Section 5 states "Congress can enforce appropriate legislationÖ"

1941 Kantwell v. Conn: made free exercise of the 1st Amendment enforceable by the due process clase of the 14th Amendment for state action.

Dept of Human Resources v. Smith: said that free exercise was not absolute, a state could abridge it if the state ahs a rational or important interest. It does not require a compelling interest. In Boerne, Justice Kennedy said that requiring a compelling state interest would be fatal to the law.

Congress wanted to restore "religious freedom" under Section 5. This law requires that federal and state laws demonstrate a compelling interest in order to abridge religious freedom.

Can Congress create this kind of substantive right? Attorneys argued the Morgan case in support of this.

The Supreme Court rejected this argument and cited City of Rome to say that Congress could not create a substantive right, but they can ban a literacy test or redistrict the City of Rome if they want to protect against a risk of future violations of a right, if there is past discrimination.

Lecture Notes for Nov. 12

Constitutional Law Notes for November 12, 1998

Constitutional Law Notes for November 12, 1998

City of Boerne v. Flores:

This case involves the authority of Congress (under section 5 of the 14th Amendment) to pass a law that bans any federal or state action that impacts the free exercise of religion unless the state can show a compelling government interest and unless the state narrowly tailors the law to that interest.

The Supreme Court, under section fiveís necessary and proper clause, must require a compelling interest whenever it impacts religious freedom. Equal protection applies only to racial groups and other groups subject to discrimination. Religious affiliation doesnít usually qualify as such a group. So religious freedom is protected as part of freedom of expression. So it falls under the liberty protection of the 14th Amendmentís due process clause. The establishment clause was designed to prevent the federal government from establishing a national religion and thus to let states do as they please regarding religion. Once the Supreme Court nationalized the free exercise clause of freedom of expression, the court then has to determine whether a state can legally pass a law that impedes the free exercise of religion. The court has to decide whether such a law violates due process, which means it is a substantive due process issue.

(See the Smith case.)

Reynolds v. the U.S. (1885) reviewed a federal law that made bigamy a crime. A Mormon objected, arguing that the law violated his free exercise of religion guaranteed by the First Amendment . The Supreme Court held that laws may regulate religious practices to advance important government interests (which is similar to Scalia

(See the Smith case.)

Lecture Notes for Nov. 16

Constitutional Law Notes for November 16, 1998

Constitutional Law Notes for November 16, 1998

Equal protection jurisprudence and race/racial classification

How far should judicial review go in substantive matters?

Is the Supreme Court engaged in subjective/substantive judicial review in these cases?

Is it fair for the Supreme Court to say that Congress cannot legislate racial set asides?

The problem with Lochner is that the courtís ruling relied upon excessive judicial activism by setting aside a state law that had much factual evidence on its side. Lochner was, hence, a substantive decision, which led some to say that the court should not interfere in such matters because they are better left to state legislatures. The job of the court, according to this line of reasoning, is to interpret laws based on common law and the Constitution. It isnít supposed to make laws or set policy. When the court is engaged in interpretation of the equal protection clause it is inherently engaged in substantive judicial review because there is no common law or constitutional law precedence to rely upon. It is substantive because judges define what does or does not violate the equal protection clause.

Once again, the 14th Amendment only prohibits state action and not private action, which raises the question of when public action becomes private and vice versa. A matter is substantive when there is no prior law to rely upon and when there is no adjudication. So when the Supreme Court says what is and isnít state action, it is inherently making a policy decision.

The metro broadcasting case involved an FCC minority set aside program for broadcast licensing, which was designed to facilitate minority ownership. The policy was challenged as a racial classification that violates the equal protection clause. Until 1995, the presumption, under the law, was that if a law was enacted by Congress, it is not a racial classification meant to discriminate. The assumption being that Congress isnít discriminating because Congress doesnít have a history of doing so. On the other hand, states have a history of discrimination so state laws involving potential racial classification automatically receive strict scrutiny. States must prove that they have a compelling state interest to justify the use of a racial classification. Race is, therefore, a suspect category at the state level.

In the Richmond case, Richmond argued that it should be able to enact the same policies that Congress can, but the presumption is that Richmond is discriminating because of its history. Affirmative action for remedial purposes provides a compelling interest. Indeed, every congressional case involves a remedy for societal discrimination as opposed to location-specific discrimination. In addition, Richmondís policy was narrowly tailored to address discrimination against the same groups that were discriminated against in the past.

In the Adarand case, the court created one standard for both Congress and the states: racial classifications are suspect at both the national and state levels.

Notes for Nov. 17

Constitutional Law Notes for November 17, 1998

Constitutional Law Notes for November 17, 1998

Equal Protection Beyond Intended Classes

The 15th Amendment applies to individuals, the 14th Amendment applies to classes.

Railway Express: New York banned truck advertisements. The alleged purpose of the law was traffic safety- not to distract drivers and pedestrians with ads. Is equal protection or due process an issue here?

W.O. Douglas says there is a distinction made, but the review is minimal because no constitutional rights are violated. The law is based on legislative facts which are not reviewable. NY has enacted a public policy and it is not the courtsí role to review these policies. The court cannot say that there is not a conceivable basis for the law. Judges can only review adjudicative facts. The issue arises because itís an economic classification.

In Jacksonís concurring opinion, the burden of proof rests on anyone who wants to apply the due process clause. He makes a distinction between the due process and equal protection clauses. Students should read his opinion carefully.

Conceivable basis review almost always leads to upholding a law in question. This is derived from Carolene Products footnote with regard to economic classes, whereas heightened scrutiny applies to racial classes.

Abortion statutes can be challenged in 2 ways. A direct challenge would have to show injury.

If a gender classification is alleged, then it must mean that the purpose of the law is to discriminate against women on the basis of gender alone. If the classification is made for any other reason, then it is a neutral classification and thus cannot be challenged as a violation of equal protection. In this case, a due process attack must be the tool for challenging the law. Actually, with regard to abortion, an equal protection challenged could have been pursued because by 1973, gender had been declared semi-suspect.

FCC v. Beach: a federal law regulating cable TV was challenged on the grounds that common and separate ownership distinctions were a violation of equal protection. The court held that economic classifications such as these were to be reviewed according to conceivable basis. Legislative facts are not reviewable.

Lecture Notes for Nov. 19

Constitutional Law Notes for November 19, 1998

Constitutional Law Notes for November 19, 1998

How far should equal protection extend?

The extension of equal protection is normative according to strict constructionists.

For example the issue of how states treat non-marital children.

In Reed v. Reed, the court decided that a male heir cannot be given preference when deciding which child gets to administer an estate when the deceased died without leaving a will.

U.S. Agriculture v. Marino involved the issue of whether food stamp amendments could exclude households from the food stamp program that contained any member not related to any other member of the household. This led to Brennanís standard of related versus unrelated, meaning that a classification, like the above, could not stand if it were unrelated to the policy. The classification, if necessary at all, must be narrowly tailored.

Muller v. Oregon: on what grounds did the court uphold a law regulating hours of work for women?

In a later case, the court ruled that gender classification is suspect. A compelling interest must be established to uphold the classification.