Constitutional Law
UC Berkeley School of Law Spring 2015
Prof. Haney-Lo´pez
§ 1 Overview
1.1Separation of Powers, Federalism, and Reconstruction
Questions:
Which branch of government has the final say in constitutional in- terpretation?
Does the Bill of Rights apply to the states? How?
What rights does the Fourteenth Amendment protect? Does it create new rights?
How would the Court today answer the butchers’ due process and equal protection claims in Slaughter-House?
Does “separate but equal” violate due process? Equal protection? (f) Would “separate but equal” violate due process or equal protection
if the Court had found that it does stamp a “badge of inferiority”?
Ware v. Hylton (1796, Iredell): the Court assumed the power to review state legislation under the Supremacy Clause.
Marbury v. Madison (1803, Marshall): the court held the Judiciary Act of 1789 to be unconstitutional because in granting the Court original jurisdic- tion in acts by government officials, Congress exceeded its constitutional power.
Judicial review: the Court has the final say in constitutional inter- pretation. “It is emphatically the province and duty of the judicial department to say what the law is.”1
Dred Scott v. Sandford (1857, Taney): Congress cannot ban slavery in the states.
The Slaughter-House Cases (1873, Miller): the Privileges and Immunities Clause forbade state infringement of the rights of national citizenship, but not the rights of state citizenship. A broader interpretation would “fetter and degrade” the states.2 The Bill of Rights does not apply to the states—at least not through Privileges and Immunities.
Field, dissenting: the Fourteenth Amendment does protect U.S. citi- zens against violations by state legislatures of “common rights” (i.e., inalienable natural rights, like the right to property and to pursue happiness)3
The Fourteenth Amendment prevents states from infringing on the liberty of all people, not just blacks.
1Casebook p. 116.
2Casebook p. 325.
3Casebook p. 327.
The Fourteenth Amendment granted the federal government power to protect citizens’ fundamental rights against oppression by the states.
Bradley, dissenting: the Fourteenth Amendment guaranteed the butch- ers the liberty of employment—an early version of substantive due process.
Bradwell v. Illinois (1873, Miller): the Fourteenth Amendment did not transfer the power to regulate professional licenses to the federal govern- ment. It remains with the states.
Bradley, concurring: women belong in the domestic sphere. Women lack rights because of their “obligations to home and hearth.”4
Minor v. Happersett (1875, Waite): citizenship does not confer suffrage. The Fourteenth Amendment did not create new privileges or immunities. It only furnished additional protections for existing rights.
Plessy v. Ferguson (1896, Brown): the Fourteenth Amendment abolished legal but not social distinctions between races. “Separate but equal” does not impose a “badge of inferiority.”5
Harlan, dissenting: “Our Constitution is color-blind, and neither knows nor tolerates classes among the citizens.”6
Lochner and Substantive Due Process
Questions:
Is there a principled way to reconcile the Lochner -era opinions that appear inconsistent (e.g., upholding regulations protecting coal min- ers but not bakers)?
Should the Court avoid endorsing an economic theory? Or was the problem with Lochner that it endorsed the wrong theory?
How does Lochnerism relate to classic liberalism?
Why did the Court find that lottery tickets are harmful and thus within Congress’s power to regulate under the Commerce Clause (Champion), but goods produced with child labor are not (Ham- mer )?
Should Congress’s Commerce Clause authority depend on whether the regulated activity is “harmful”? Who should decide what’s “harm- ful”?
How did the Lochner -era court define “liberty”?
4Casebook p. 339.
5Casebook p. 361.
6Casebook p. 363.
Lochner v. New York (1905, Peckham): New York cannot limit the num- ber of hours a baker can work because the regulation violates the Due Process Clause’s protection of liberty.
Harlan, dissenting: when states pass legislation aimed at protecting public health and safety, the Court should strike it down only if it “has no real substantial relation to those objects, or is beyond all question, a plain, palpable invasion of rights secured by the fun- damental law.”7 This was an early version of rational review—see Carolene below.
Holmes, dissenting:
The majority’s opinion rests on an economic theory (presum- ably, laissez faire and social Darwinism). “[A] constitution is not intended to embody a particular economic theory . . . ”8
“I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion [as expressed through the legislature], unless it can be said that a rational and fair man necessarily would ad- mit that the statute proposed would infringe fundamental prin- ciples . . . ”9
Lochnerism: the Court strikes down regulation as infringing on eco- nomic liberty, endorsing laissez-faire economics and limiting states’ power to enact social welfare legislation.
Problems with Lochnerism:
Is the freedom to contract a fundamental right?
The Lochner -era Court was inconsistent—e.g., upholding regu- lations for coal miners but not for bakers.
The Court substituted its own values for those of legislatures.
Champion v. Ames (1903, Harlan): Congress can regulate interstate mail- ing of lottery tickets. Congress can use its Commerce Clause powers to protect commerce as well as promote public policy goals.
Fuller, dissenting: lottery tickets are not “articles of commerce.” Congress should not exercise police powers via the Commerce Clause.
Hammer v. Dagenhart (1918): Congress can use its Commerce Clause power only to regulate harmful activity. Lottery tickets are harmful, but child labor is not.
Congress has the power to regulate (and therefore prohibit) inter- state commerce. Whether its regulations indirectly affect economic activity within the states is irrelevant to the exercise of its authority.
7Casebook p. 420.
8Casebook p. 422.
9Casebook p. 422.
1.3Economic Due Process
Questions:
oncurring in Davis)?
Should the evidentiary standard for establishing discriminatory in- tent depend on the context, e.g., education vs. employment?
13Casebook pp. 554–55.
14Casebook p. 550.
15Casebook p. 551.
16Casebook pp. 553–54.
What was Brown’s rationale? Is the holding legitimate if the ratio- nale is unclear (or missing)?
If “separate but equal” facilities were truly equal, would they still vio- late equal protection? Before Brown, the NAACP pushed to improve the quality of separate facilities. Is Warren right that “[s]eparate ed- ucational facilities are inherently unequal”?
If the Southern Manifesto is right that the authors of the Fourteenth Amendment did not intend it to affect segregation in schools, would Brown be wrong? Could Brown’s positive consequences (e.g., stig- matizing arguments in favor of segregation) redeem it even if it con- tradicts the framers’ intent?
How does Brown use social science? Does Brown’s use of social science contradict legal precedent?
To what forms of racial segregation did Brown apply? Did its holding extend beyond education? “Brown did not proscribe racial classifi- cation or declare it suspect. Rather, it addressed the harmful con- sequences of separating school children in a particular institutional context.”17
Should the Court intervene to remedy resegregation resulting from private action, like white flight (Milliken)?
Could the Court have decided Brown on due process grounds?
What’s the relationship between equal protection and due process in
Loving ?
Should we require legislators to confront the racial impact of their policies (like environmental impact statements, which we already re- quire)?18
Why do racial quotas violate the Fourteenth Amendment?
Does the Feeney standard account for cognitive bias and unconscious racism? Should it?
When is statistical evidence of discriminatory impact strong enough to show discriminatory purpose? Compare Yick Wo (finding a dis- criminatory purpose from statistical evidence showing that Chinese laundromat operators were regularly denied permits) and McCleskey (finding no discriminatory purpose despite statistical evidence that in Georgia, blacks were significantly more likely than whites to receive the death penalty, especially when killing whites).
Under the current doctrine, could public universities implement af- firmative action programs based on gender? Or wealth, or alienage?
Why not extend the goal of enhancing cross-racial understanding to civil service jobs, or all jobs (Scalia in Grutter )?
