SUMMARY OF OUTLINE
I. The BIG PICTURE.. 8
A. STANDARDS of REVIEW 8
1. Rational Relation Test… 8
2. Mid-Level Scrutiny 8
3. Strict Scrutiny 8
II. CHAPTER 1: NATURE and SCOPE of JUDICIAL REVIEW… 8
A. Origins, Early Challenges, and Continuing Controversy…………. 8
1. Marbury v. Madison (US S CT, 1803).. 8
2. Martin v. Hunter’s Lessee (US S CT, 1816).. 8
3. Cohen v. Virginia (US S CT, 1821).. 8
B. Political Questions 8
1. Baker v. Carr (US S CT, 1962).. 8
2. Nixon v. United States (US S CT, 1993).. 9
3. Pacific States Telephone v. Oregon (US S CT, 1912).. 9
4. Baker v. Carr (US S CT, 1962).. 9
5. Goldwater v. Carter (US S CT, 1979).. 9
6. Gilligan v. Morgan (US S CT, 1973).. 9
7. O’Brien v. Brown (US S CT, 1972).. 9
C. Congressional Regulation of Judicial Power….. 9
1. 28 USCA 1254 (S Ct Appellate Jx over CT APPS) 10
2. 28 USCA 1257 (S Ct. Appellate Jx over State Courts)……… 10
3. Ex Parte McCardle (US S CT, 1869) 10
4. Jx “Stripping”….. 10
5. US v. Klein (US S CT, 1872) 10
6. No Preclusion of All Judicial Review……… 10
D. DISCRETIONARY REVIEW 10
1. Maryland v. Baltimore Radio Show 10
2. The “rule of four” 10
3. Cert “improvidently granted”……… 10
E. PREREQUISITES to FEDERAL Jx and JUDICIAL REVIEW: AN INTRODUCTION 10
1. Courts power only extends to “CASES” and “CONTROVERSIES” 10
2. Limits on what is “REVIEWABLE”……. 10
III. CHAPTER 7: PROTECTION of INDIVIDUAL RIGHTS: DUE PROCESS, THE BILL of RIGHTS, and NONTEXTUAL CONSTITUTIONAL RIGHTS.. 11
A. The “ORDERED LIBERTY—FUNDAMENTAL FAIRNESS,” “TOTAL INCORPORATION,” and “SELECTIVE INCORPORATION” theories. 11
1. Total Incorporation. 11
2. Ordered Liberty—Fundamental Fairness……… 11
B. Should the “Selected” Provisions apply to the states the SAME EXTENT as they do to the feds?…………. 11
1. Malloy v. Hogan (US S CT, 1964) 11
2. Williams v. Florida (US S CT, 1970) 11
3. Apodaca v. Oregon, Johnson v. Louisiana (US S CT, 1972) 11
C. BODILY EXTRACTIONS… 12
1. Rochin v. California (US S CT, 1952) 12
2. Schmerber v. California (US S CT, 1966) 12
D. RETROACTIVE EFFECT of a HOLDING OF UNCONSTITUTIONALITY…. 12
1. Linkletter v. Walker (US S CT, 1965) 12
E. THE RIGHT of “PRIVACY” (or “AUTONOMY” or “PERSONHOOD”) 12
1. Skinner v. Oklahoma (US S CT, 1942) 13
F. Setting the Stage for the ABORTION DEBATE…………. 13
1. Griswold v. Connecticut (US S CT, 1965) 13
2. Eisenstadt v. Baird (US S CT, 1972) 13
G. The ABORTION DEBACLE…………. 13
1. Roe v. Wade (US S CT, 1973) 13
2. Maher v. Roe (US S CT, 1977) 14
3. Harris v. McRae (US S CT, 1980) 14
4. Planned Parenthood v. Danforth (US S CT, 1976) 14
5. Akron v. Akron Center for Reproductive Health (US S CT, 1983) 15
6. Thornburgh v. American College of Obstetricians and Gynecologists. 15
7. Webster v. Reproductive Health Services……… 16
8. Hodgson v. Minnesota (US S CT, 1990) 16
9. Planned Parenthood v. Casey (US S CT, 1992) 16
H. Family Living Arrangements, Parental Rights and the “Right to Marry.”…………. 17
1. Whalen v. Roe (US S CT, 1977) 17
2. Bel Terre v. Boraas (US S CT 1974) 17
3. Moore v. East Cleveland (US S CT, 1977) 17
4. Quilloin v. Walcott (US S CT, 1978) 18
5. Zablocki v. Redhail (US S CT, 1978) 18
6. Michael H. v. Gerald D…… 18
7. Conflicts in Substantive Due Process Analysis: VALUE CHOICES v. TRADITION. 19
I. Substantive Due Process; Traditions; and Homosexuality…….. 19
1. Bowers v. Hardwick (US S CT, 1986) 19
2. Romer v. Evans (US S CT, 1996) 20
J. More on PRIVACY and AUTONOMY…… 20
1. Kelley v. Johnson (US S CT, 1976) 20
2. Youngberg v. Romero (US S CT, 1982) 21
K. The RIGHT TO DIE…… 21
1. Cruzan v. Missouri Dept. of Health (US S CT, 1990) 21
L. Physician Assisted Suicide. 22
1. Washington v. Glucksberg (US S CT, 1997) 22
2. Vacco v. Quill (US S CT, 1997) 23
M. The RIGHT TO TRAVEL 24
1. Shapiro v. Thompson (US S CT, 1969) 24
2. Aptheker v. Secretary of State (US S CT, 1964) 24
3. Zemel v. Rusk (US S CT, 1965) 24
4. Haig v. Agee (US S CT, 1981) 25
N. DEATH PENALTY – “CRUEL and UNUSUAL”?……… 25
1. Furman v. Georgia (US S CT, 1972) 25
2. Gregg v. Georgia (US S CT, 1976) 25
3. Woodson v. North Carolina, Roberts (Stanislaus) v. Louisiana (US S CT, 1976) 26
4. Lockett v. Ohio (US S CT, 1978) 26
5. Eddings v. Oklahoma (US S CT, 1982) 26
6. Callins v. Collins (US S CT, 1994) 26
7. McClessky v. Kemp (US S CT, 1987) 27
O. PROCEDURAL DUE PROCESS in NON-CRIMINAL CASES 27
1. Addressing PROCESS in Deprivation of “LIBERTY” or “PROPERTY” cases. 27
2. Goldberg v. Kelly (US S CT, 1970) 27
3. Bell v. Burson (US S CT, 1971) 27
4. Board of Regents v. Roth (US S CT, 1972) 27
5. Arnett v. Kennedy (US S CT, 1974) 28
6. Bishop v. Wood (US S CT, 1976) 28
7. Paul v. Davis (US S CT, 1976) 28
8. Vitek v. Jones (US S CT, 1980) 29
9. Logan v. Zimmerman Brush……… 29
10. Cleveland Board of Education v. Loudermill……. 29
P. WHAT TYPE of HEARING and WHEN…………. 30
1. Goldberg v. Kelly (US S CT, 1970) 30
2. Mathews v. Eldridge……… 30
Q. EDUCATIONAL DUE PROCESS CASES 31
1. Goss v. Lopez (US S CT, 1975) 31
2. Ingraham v. Wright (US S CT, 1977) 31
3. Board of Curators V. Horowitz (US S CT, 1978) 31
R. FAMILY DUE PROCESS…………. 31
1. Parham v. J.R. (US S CT, 1979) 31
2. Lassiter v. Dep’t. of Social Services (US S C, 1981) 31
3. Santosky v. Kramer (US S CT, 1982) 32
4. So, How MUCH process is DUE?……… 32
IV. CHAPTER 2: NATIONAL LEGISLATIVE POWER 32
A. SOURCES and NATURE of NATIONAL LEGISLATIVE POWER 32
1. Powers of the Federal Government are VAST but LIMITED…… 32
2. McCulloch v. Maryland (US S CT, 1819) 33
3. Kansas v. Colorado (US S CT, 1907) 33
4. Erie RR v. Tompkins (US S CT, 1938) 33
B. The NATIONAL COMMERCE POWER 33
1. Gibbons v. Ogdgen (US S CT, 1824) 33
2. Paul v. Virginia (US S CT, 1869) 33
3. Kidd v. Pearson (US S CT, 1888) 33
4. The Daniel Ball (US S CT, 1871) 33
C. FOUNDATIONS for EXTENDING the REACH of CONGRESSIONAL POWER 34
1. The Lottery Case (Champion v. Ames) (US S CT, 1903) 34
2. Houston, East & West Texas Ry. V. U.S. (Shreveport Case) (US S CT, 1914) 34
3. Wisconsin R.R. Com’n v. Chicago, B. & Q. (US S CT, 1922) 34
4. Stafford v. Wallace (US S CT, 1922) 34
D. Regulation of NATIONAL ECONOMIC PROBLEMS through the COMMERCE POWER 34
1. Limitations on COMMERCE POWER through 1936. 34
2. Expansion of Commerce Power AFTER 1936. 35
3. NLRB v. Jones & Laughlin Steel Corp. (US S CT 1937) 35
4. NLRB v. Friedman-Harry Marks Clothing Co. (US S CT 1937) 35
5. NLRB v. Fainblatt (US S CT, 1939) 35
6. NLRB v. Reliance Fuel Oil Corp. 35
7. US v. Darby (US S CT, 1941) 35
8. Kentucky Whip & Collar v. Illinois Central R.R. (US S CT, 1937) 36
9. Mulford v. Smith (US S CT. 1939) 36
10. United States v. Wrightwood Dairy Co…. 36
11. Maryland v. Wirtz (US S CT, 1968) 36
12. Wickard v. Filburn (US S CT, 1942) 36
E. CONTROL OVER TRANSACTIONS RELATING TO INTANGIBLES…… 36
1. US v. South Eastern Underwriters (US S CT, 1944) 36
2. North American Co. v. SEC (US S CT 1946) 37
3. Woods v. Cloyd W. Miller Co. (US S CT, 1948) 37
F. REGULATION of POLICE PROBLEMS through COMMERCE POWER 37
1. Exclusion from Commerce……. 37
2. Local Activities Affecting Interstate Commerce……. 37
3. Local Activities After Interstate Commerce Ends 37
G. PROTECTION of OTHER INTERESTS THROUGH the COMMERCE CLAUSE 37
1. CIVIL RIGHTS……… 38
2. The ENVIRONMENT……… 38
3. RECENT LIMITATIONS……… 39
H. NATIONAL TAXING and SPENDING POWERS…………. 39
1. REGULATION through TAXING……… 39
2. REGULATING through SPENDING… 40
3. SPENDING for GENERAL WELFARE… 40
I. FOREIGN AFFAIRS POWER 41
1. Treaties as a SOURCE of LEGISLATIVE POWER……… 41
2. Other Bases for Legislative power over Foreign Affairs 41
J. APPLYING NATIONAL POWERS to STATE GOVERNMENTS: INTERGOVERNMENTAL IMMUNITIES……. 41
1. ORIGINS of IMMUNITIES 41
2. STATE IMMUNITY from FEDERAL TAXES……… 41
3. FEDERAL IMMUNITY from STATE TAXES and REGULATION……… 42
4. STATE IMMUNITY from FEDERAL REGULATION……… 42
K. Absence of ALL Government Power over QUALIFICATIONS FOR MEMBERS of CONGRESS……….. 44
1. US Term Limits, Inc. v. Thornton (US S CT, 1995) 44
V. CHAPTER 3: DISTRIBUTION of FEDERAL POWERS: SEPARATION of POWERS 45
A. PRESIDENTIAL ACTION AFFECTING “CONGRESSIONAL” POWERS…………. 45
1. FORMALISM v. FUNCTIONALISM in SEPARATION of POWERS……. 45
2. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (US S CT, 1952) 45
3. LINE ITEM VETO 46
B. CONGRESSIONAL ACTION Affecting “PRESIDENTIAL” POWERS…………. 46
1. Delegation of RULE MAKING POWER……… 46
2. LEGISLATIVE “VETOES”…. 47
3. CONTROL over APPOINTMENT and REMOVAL OF OFFICERS…. 47
C. The FOREIGN AFFAIRS and WAR POWERS…………. 49
1. US v. Curtiss-Wright Export Corp. (US S CT, 1936) 49
2. Dames & Moore v. Regan (US S CT, 1981) 49
3. War Powers Resolution……. 50
D. EXECUTIVE PRIVILEGE and IMMUNITY………. 50
1. United States v. Nixon (US S CT, 1974) 50
2. Nixon v. Administrator of General Services (US S CT, 1977) 50
3. Nixon v. Fitzgerald (US S CT, 1982) 51
4. Clinton v. Jones (US S CT, 1997) 51
5. Harlow v. Fitzgerald (US S CT, 1982) 51
VI. CHAPTER 4: STATE POWER TO REGULATE…………….. 51
A. STATE REGULATION WHEN CONGRESS’ POWER is DORMANT: HISTORY and FUNDAMENTAL VIEWS 51
1. EARLY VIEW of the IMPLICATIONS of FEDERAL AUTHORITY for STATE POWER……… 51
2. CONGRESSIONAL AUTHORIZATION of STATE REGULATION……… 52
3. The BASIS for JUDICIAL ACTION……… 53
4. The QUEST for an ADEQUATE STANDARD 53
5. CURRENT CONTROVERSIES…. 53
B. CASES and DOCTRINE………. 54
1. REGULATIONS THAT BURDEN OUT-OF-STATE SUPPLIERS SEEKING IN-STATE MARKETS: BASIC THEMES and DISTINCTIONS……… 54
2. IDENTIFYING “DISCRIMINATION,” “BURDENS,” and “PROTECTIONISM.” 55
3. REGULATION of OUTGOING TRADE and OTHER COMMERCE: BURDENS of OUT-OF-STATE INTERESTS SEEKING IN-STATE RESOURCES 56
4. REGULATION to PROTECT the ENVIRONMENT and PRESERVE NATURAL RESOURCES for IN-STATE USE. 57
5. STATE REGULATION of TENDER OFFERS……… 58
6. REGULATION of TRANSPORTATION… 59
7. THE STATE as a MARKET PARTICIPANT 60
8. INTERSTATE PRIVILEGES and IMMUNITIES CLAUSE……… 60
C. THE EFFECT of FEDERAL REGULATION: PREEMPTION….. 61
1. Pacific Gas & Electric v. State Energy Resources Conservation & Dev. Comm’n……… 61
2. Gade v. National Solid Wastes Management Ass’n (US S CT, 1992) 62
3. Hines v. Davidowitz (US S CT, 1941) 62
4. PA v. Nelson, (US S CT, 1956) 62
5. Medtronic, Inc. v. Rohr (US S CT, 1996) 62
VII. CHAPTER 5: STATE POWER TO TAX……… 62
A. PRAGMATISM OVER FORMALISM: REQUISITES of a VALID TAX….. 62
1. Complete Auto Transit, Inc. v. Brady (US S CT, 1977) 62
2. Department of Rev. v. Ass’n of Washington Stevedoring (US S CT, 1978) 63
B. THE LAW AFTER COMPLETE AUTO: THE “PRACTICAL EFFECT” “FOUR-PART TEST”. 63
1. DISCRIMINATION… 63
2. JURISDICTION to TAX……… 64
3. FAIR APPORTIONMENT… 66
4. “FAIRLY RELATED” to STATE-PROVIDED SERVICES, BENEFITS and OPPORTUNITIES……… 67
VIII. SUBSTANTIVE PROTECTION of ECONOMIC INTERESTS…………….. 67
A. ORIGINS of SUBSTANTIVE DUE PROCESS…………. 67
1. Judicial Response to Philosophical Limits on Governmental Power 67
2. THE SEARCH for a CONSTITUTIONAL BASIS 67
3. FOURTEENTH AMENDMENT 68
B. THREE DECADES of CONTROL OVER LEGISLATIVE POLICY 68
1. All BAD LAW now.. 68
C. DECLINE of CONTROL OVER LEGISLATIVE POLICY 69
1. Nebbia V. NY (US S CT, 1934) 69
2. West Coast Hotel Co. v. Parrish (US S CT, 1937) 69
3. US v. Caroline Products Co. (US S CT, 1938) 69
4. US v. Darby (US S CT, 1941) 69
5. Olsen v. Nebraska (US S CT, 1941) 69
6. Whalen v. Roe (US S CT, 1977) 69
7. ABSTENTION EXCEEDING HALF A CENTURY… 70
D. “TAKING” of PROPERTY INTERESTS……….. 70
1. 5th Amendment…. 70
2. 14th Amendment…. 70
3. PURPOSE of “TAKING”…. 70
4. “TAKING” THROUGH REGULATION……… 71
E. CONTRACT CLAUSE…………. 74
1. Allied Structural Steel Co. v. Spannaus……… 74
2. MAJOR DIFFERENCE b/t DUE PROCESS and CONTRACT CLAUSE in economic legislation……. 75
3. US Trust Co. v. NJ (US S CT, 1977) 75
4. EXXON Corp v. Eagerton (US S CT, 1983) 75
IX. Current Through ALL READINGS……………… 75
I. The BIG PICTURE
A. STANDARDS of REVIEW
1. Rational Relation Test
a) Applied where a branch of gov’t is operating within its specifically prescribed sphere.
b) Statute must support a LEGITIMATE GOVERNMENT INTEREST
c) Statute must be RATIONALLY RELATED to that interest.
2. Mid-Level Scrutiny
a) Applied where a “SUSPECT CLASS” is targeted.
(1) Suspect class is defined as “DISCREET and INSULAR MINORITIES”
b) Statute must support a LEGITIMATE GOVERNMENT INTEREST
c) Statute must be SUBSTANTIALLY RELATED to that interest.
3. Strict Scrutiny
a) Applied where branch of gov’t seeks to impact a CONSTITUTIONAL RIGHT
b) Statute must support a COMPELLING GOVERNMENT INTEREST
c) Statute must be the LEAST RESTRICTI
do not violate 6th via 14th, even though federal criminal trials do require unanimous verdicts.
(1) BRENNAN & MARSHALL DISSENT: Finding the inconsistency inexplicable.
C. BODILY EXTRACTIONS
1. Rochin v. California (US S CT, 1952)
a) Holds that stomach pumping by police to obtain narcotics evidence in a state criminal case is beyond the pale.
b) “Defines” DUE PROCESS: Due process of law precludes defining, and thus confining, civilized standards of conduct other than to say that convictions cannot be sustained which are based on police methods which “offend a sense of justice.”
(1) But, in Irvine v. California (US S CT, 1954) the court holds that illegally installing microphones in a persons home is okay for the states, even if the feds would be prohibited. The distinction? The Irvine court found that there was a basic difference where the states methods involved “coercion, violence or brutality to the person.”
(2) And, in Breithaupt v. Abram (US S CT, 1957), the court ruled that taking a blood sample from an unconscious person for alcohol analysis was perfectly acceptable, because the “interests of society” outweigh “so slight an intrusion.”
2. Schmerber v. California (US S CT, 1966)
a) Police may direct a physician to take a blood sample from an injured person who objects to the procedure.
b) Claims this is not inconsistent with the Rochin “sense of justice” standard.
c) States that protection from self incrimination only applies to “testimonial or communicative” evidence
d) Protection against unreasonable search and seizure does not apply because a) the officer had probable cause to believe the likely success of a test for alcohol, 2) the threat of “destruction of evidence” if the officer waited for a warrant, and 3) the test chosen was reasonable in form and manner.
D. RETROACTIVE EFFECT of a HOLDING OF UNCONSTITUTIONALITY
1. Linkletter v. Walker (US S CT, 1965)
a) The C neither prohibits nor requires retrospective effect.
b) Three factors of whether new rule should be declared unconstitutional
(1) The prior history of the rule in question, its purpose and effect
(2) Whether retrospective operation of the rule would further justice or retard its operation
(3) What adverse impact on the administration of justice retroactivity would have.
E. THE RIGHT of “PRIVACY” (or “AUTONOMY” or “PERSONHOOD”)
1. Skinner v. Oklahoma (US S CT, 1942)
a) Struck down state statute authorizing the sterilization of persons convicted two or more times of crimes involving “moral turpitude.”
b) Found statute to violated “BASIC CIVIL RIGHTS”: The RIGHT TO MARRY and PROCREATE.
c) Used STRICT SCRUTINY to find the statute violated EQUAL PROTECTION because similar QUALITY offenses were treated differently.
F. Setting the Stage for the ABORTION DEBATE
1. Griswold v. Connecticut (US S CT, 1965)
a) Struck down statute criminalizing the use of contraceptives, or counseling others on their use.
b) Finds marriage to be a RIGHT of PRIVACY older than the Bill of Rights
c) PRIVACY described as a “PENUMBRA” emanating from the Bill of Rights.
d) Court relies on earlier cases regarding private decision-making regarding family matters as inherent in the “ordered concept of liberty.”
(1) Pierce v. Society of Sisters (1925)
(a) Striking down statute REQUIRING parent to send children to public schools.
(2) Meyer v. Nebraska (1923)
(a) Striking down statute requiring that grade schools only teach in English.
2. Eisenstadt v. Baird (US S CT, 1972)
a) Struck down statute making a felony to distribute contraceptives EXCEPT by a PHYSICIAN to MARRIED persons.
b) Court finds that the statute VIOLATES EQUAL PROTECTION. Rights must be the same for married and unmarried persons.
c) IMPORTANT QUOTE: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decisions whether to bear or beget a child.”
G. The ABORTION DEBACLE
1. Roe v. Wade (US S CT, 1973)
a) Struck down all laws making abortion illegal.
b) Extended the “penumbral” RIGHT to PRIVACY to a woman’s decision to have an abortion.
c) TECHNICAL HOLDING: “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”
d) Adopted TRIMESTER SYSTEM APPROACH in an attempt to balance the state’s interest in protecting life with the woman’s right to choose.
(1) 1st TRIMESTER: Woman’s right to choose is absolute. No state regulation permitted (other than requiring abortions be performed by licensed physicians).
(2) 2nd TRIMESTER: State can regulate, but only to the extent of safeguarding its interest in the WOMAN’S life.
(3) 3rd TRIMESTER: States “compelling interest” in life of the fetus supersedes woman’s right to choose. State may regulate or ban abortion altogether.
2. Maher v. Roe (US S CT, 1977)
a) Upholds law which prohibited use of Medicaid funds for elective 1st Trimester abortions while allowing the use of such funds for such abortions if “medically necessary.”
b) Court reasons that there is a difference b/t interfering with the woman’s ri
