1. Separation of Powers:
2. Marbury v. Madison
1. Executive privilege:
i. US v. Nixon
ii. Cheney
2. Inherent executive Power:
i. Youngstown
ii. U.S. v. Curtiss-Wright Export Corp.:
iii. Dames & Moore v. Regan:
3. delegation of powers, due process
i. Hamdan v. Rumsfeld,
ii. INS v. Chadha
iii. Hamdi
iv. Clinton v. New York
4. Impeachment-
i. Nixon,
ii. Johnson,
iii. Clinton
3. Federalism:
1. Early decisions
i. McCulloch v. Maryland (Marshall broadens federal power by implying powers to enact powers in article I)
ii. Gibbons v. Ogden- sugar monopoly-Congress may intervene
2. 10th amendment- does it have any teeth?
3. Commerce Clause
i. Early decisions-laissez-faire: (striking congress’s attempts as not directly related to interstate commerce)
1. ALA Schechter Poultry Corp v. United States (poultry):
2. Houston, East & West Railway Co. v. United States: (railroad)
3. Hammer v. Dagenhart (child labor)
4. Champion v. Ames (lottery case)
ii. Depression- hands-on regulation and indirect effect (stream of commerce)
1. Home-grown wheat (could stand for lack of individual liberty in wealth/livelihood as much as Congress’s ability to regulate commerce w/o direct effects)
2. Heart of Atlanta and Allie’s BBQ (civil rights cases)
3. Darby (overruling child labor case)
iii. Rehnquist Court
1. Lopez (guns in schools)
2. Gonzalez v. Raich (medical marijuana)
iv. Extraordinary commerce clause cases- should congress be able to legislate commerce activities w/ motives unrelated to commerce?
1. 14th amendment and civil rights cases
2. New York v. United States (radiation disposal)-carrot vs stick approach
3. Printz v. United States (guns)
4. Solid Waste case- constitutionality of the environmental laws and habitation of wild animals under the commerce clause- court wants to avoid the question so decides it on factual grounds instead.
4. Individual Liberties
1. Substantive Due Process and Fundamental Rights:
i. Barron v. Baltimore- takings clause of 5th amendment didn’t apply to states (trust in states to do right by their citizens)
ii. Post-civil war (13, 14, 15 amendments enacted b/c states can’t be trusted to protect rights of the newly freed black citizens).
1. 14th amendment requires state action: (1) privileges and immunities, 2) due process, 3) equal protection clause
1. Slaughterhouse case: court finds that 14th amendment narrowly interpreted only to apply to slaves.
2. Fundamental Rights: state/feds can’t interfere w/o compelling reason
1. Interstate travel (CA welfare law)
2. DeShaney v. Winnebago Protective Services
3. Shelley v. Kramer- discriminatory contract can’t be enforced by court.
4. Lochner- fundamental right to contract (overturned-could also argue that Shelley v. Kramer would overturn it)
i. Allgeyer v. LA (decision Lochner is hinged on)
ii. Coppage v. Kansas
iii. Nebbia v. New York (milk regulation)
5. Carolene Products
i. N.4. above the line: BoR, vote, political minority
6. Williamson v. Lee Optical of Oklahoma-balancing test
7. Family relationships
i. Meyer v. Nebraska (german teacher)
ii. Troxel v. Granville (grandparents case)
iii. Lvoing v. Virginia (interracical marriage)-happiness defined as fundamental righ
iv. Zablocki v. Redhail
v. Michael H v. Gerald d.
vi. Moore v. East City of Cleveland
vii.Stanley v. Illinois
8. Reproductive rights:
i. Griswold v. Connecticut
ii. Eisenstadt v. Baird
iii. Roe v. Wade
9. Right to die vs. right to refuse medical treatment
i. Kevorkian
2. Equal Protection
i. Defining “the line”
1. political minority
2. history of discrimination
3. political powerlessness
ii. City of Cleburne (RB)- intermediate scrutiny should have applied
iii. Facially discriminatory
1. Race
1. Korematsu (Japanese interment camps-passes SS)
2. Loving v. VA
3. Plessy v. Ferguson
4. Brown v. Board of Education
5. Johnson- prison racial separation-SS
6. Wrightland v. Mulke (state can’t endorse private discrimination by allowing repeal of equal rights legislation)-this doesn’t make sense- overstep of federalism?
2. Affirmative Action
1. Grutter (MI law-“critical mass”)
2. Bakke- set-asides violate EP.
3. GEnder
1. VMI-gender discrimination (intermediate review)
2. Craig v. Boren (beer case)
3. Nguyen v. Imingration and naturalization Service: could also be civil liberty of family relationship
4. sexual orientation discrimination
1. Romer v. Evans
2. Lawrence v. Texas-could also be federalism issue (scalia’s dissent)
iv. As-Applied discrimination-must have discriminatory intent
1. WA v. Davis-police exam discriminates against women?
1. Separa
ten looking at legislative intent, but also trying to interpret using modern standards when necessary (realization that the creators of the constitution couldn’t have foreseen what life is like today and we may need to modify the constitution or reinterpret it to fit our current morals and standards.
1. Does the USSC have the right to determine constitutionality of state laws? In other words, do the limits of the constitution apply to states? (Incorporation)
2. Historical interpretation of the 2nd amendment:
1. U.S. v. Miller (1939): The court rejected Miller’s 2nd amend argument, stating the amendment’s purpose was to protect state militia, and Miller’s personal retention of a firearm did not fall within those bounds, so the Act did not violate the 2nd amendment. To apply, Miller would need to have some relation to a militia. This interpretation of the 2nd amendment as related to militia’s right to bear arms is significant
2. U.S. v. Emerson (2002-5th circuit): Court looks at the text of both the preamble and the major “right to bear arms” phrase and reads the word “militia” as people in the broadest sense, concluding that the founders conceived of every man and boy being part of the militia. To refuse this right now simply because state militias are less pervasive would be to risk the states to the power of the federal gov’t the founders were wary of.
3. Silveira v. Lockyer (2003-9th circuit): ∆ claims that law banning use of semi-automatic weapons in CA violates the 2nd amendment. The court disagrees, coming to the opposing conclusion as was decided in Emerson, namely that the 2nd amendment is best interpreted as the collective rights model protecting the state’s right to raise a militia. They base their conclusion on their own research of the historical context and the wording of the amendment itself, claiming that the drafter’s purpose in creating the amendment was to protect the state’s rights (as anti-federalists) rather than those of the individual.
