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Constitutional Law I
University of Illinois School of Law
Siegel, Stephen A.

CON LAW SPRING 2010 SIEGEL

Table of Contents

I. Intro. to the Constitution’s Protection of Civil Rights & Civil Liberties. 3
II. Equal Protection. 3
A. Introduction. 3
1. Racial Discrimination before the Civil Rights Revolution. 3
2. The Rise of Equal Protection. 4
3. An Overview of Modern Equal Protection – Multiple Tiers of Review.. 5
4. Rational Basis Review.. 6
B. Racial Classifications – Strict Scrutiny. 7
1. Facial Racial Classifications. 7
2. Affirmative Action. 8
3. Disparate Impact. 10
C. Gender Classifications – Intermediate Scrutiny. 11
D. Other Social and Economic Classifications. 13
1. Rational Basis with Bite. 13
III. Due Process. 15
A. Old Due Process. 15
1. Rise. 15
2. Demise. 17
B. Modern Due Process. 18
1. Due Process Incorporates the Bill of Rights. 19
2. Protecting Fundamental Rights through Due Process & Equal Protection. 20
C. Family Autonomy. 21
1. The Right to Marry (for opposite-sex couples)21
2. The Right of Parents to Control Their Children’s Upbringing. 21
3. The Right to Custody of One’s Children. 23
D. Reproductive Autonomy. 25
1. The Right to Procreate. 25
2. The Right to Purchase and Use Contraceptives. 25
3. The Right to Abortion. 26
Sidebar: Stare Decisis Discussion (Casey compared to Citizens United)28
E. Medical Care Decisions. 28
F. Sexual Orientation. 31
IV. The Federal Legislative Power32
A. Introduction. 32
B. The Commerce Clause. 33
1. Revival of Federalism: 1990’s and Beyond. 34
2. Tenth Amendment Limitations. 37
C. The Taxing & Spending Power40
D. The Post-Civil War Amendments. 42
1. Application to Private Conduct. 43
2. The Post-Civil War Amendments. 43
V. Dormant Commerce Clause. 48
A. Why a Dormant Commerce Clause?. 49
B. The Discriminatory/Non-Discriminatory Dichotomy and its Consequences. 50
B. Facially Neutral52
C. Exceptions. 54
D. Recent Controversies. 55
VI. The Federal Executive Power56
A. Inherent Presidential Power56
B. The Power of Appointment & Removal of Executive Official57
VII. The Nature of Constitutional Interpretation. 61
A. The Second Amendment. 61
B. The Basis for Judicial Review.. 61

I. Intro. to the Constitution’s Protection of Civil Rights & Civil Liberties

Barron v. Mayor & City Council of Baltimore
SCOTUS, 1833 (pp. 525-526). Justice MARSHALL. The Takings Clause of the Fifth Amendment which inhibits the taking of private property for public use w/o just compensation only applies to the Federal Government and does NOT apply to the City.
· The Court at this time found that the 5th Amendment is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States.
· DISSENT: Justice HARLAN: The history of the matter shows that the thing to accomplish was, under the guise of giving equal accommodation for whites & blacks, to compel blacks to “keep to themselves” while traveling in railroad passenger coaches.
Slaughter-House Cases
SCOTUS, 1873 (pp. 528-533). Justice MILLER. The City’s statute does NOT violate the privileges or immunities clause. The state had the exclusive right under its police power to determine the localities where slaughtering for the city could be conducted and the laws of the federal Constitution did not apply.
· The Court interpreted the 14th Am.’s clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) very narrowly and precluded its use as a vehicle for applying the Bill of Rights to the States.
· State Government defines & protects more rights: Property rights, Marriage rights, Right to free speech, Everything we think of as a civil liberty
· Federal Government’s basket includes things that are defined by its National character, its Constitution or its laws.
o Anything that’s in the Federal Constitution is in the Fed Gov’t’s basket. Not necessarily in the text but could also be less of a textual thing, things that are implied.
o Not a normal right that you think everyone just “has”: Bill of Attainder, Right to use navigable waters in the U.S., Right to go to the seat of government (Washington D.C. would not exist if it weren’t for the Constitution).
· “The Privileges or Immunities Clause was strangled in its crib”
o Miller says in Slaughter-House that if they meant to shift civil liberties to the Federal Government using the 14th Amendment they would have said it in plain language.
o Insufficient evidence that the 14th amendment was meant to be a BIG change (shifting those rights to the Federal Government) because if they wanted it to be a BIG change they would have said it clearly and the states would have discussed it at length when ratifying. And they didn’t.

II. Equal Protection

A. Introduction

1. Racial Discrimination before the Civil Rights Revolution

Plessy v. Ferguson
SCOTUS, 1896 (pp. 766-768). Justice BROWN.
The Louisiana law requiring “separate but equal” coaches does not violate the 14th Amendment because the 14th amendment was not intended to abolish distinctions based upon color.
· MAJORITY: Where you sit in a street car is not a civil right, so it is outside the EPC. This is within the state’s police power and doesn’t necessarily imply inferiority of the races.
· DISSENT: Justice HARLAN states that our Constitution is color-blind (“There is no caste here, our Constitution is color blind and neither knows nor tolerates differences between the races.”).
o Where is he coming from? The drafters of the 14th Amendment did envision segregation while drafting – the gallery during the debates/voting were segregated!
o Inclusion but segregation was seen by many as far as this could progress.
· Difference between an INTEREST & a RIGHT
o Interest = a want, a desire.
o Right = something that has the force of law behind it. But rights are divisible too – some are common law, statutory, state, federal. So, not all rights you have are constitutional rights. These constitutional rights are then divided into civil, political, social (although no such thing as social rights – those are your interests).
§ Our notion of what is a civil right has expanded over the years: used to consider it just basic economic liberties (right to buy, own, contract for land, and sell land).

2. The Rise of Equal Protection

a. Brown v. Board of Education = Segregation in SCHOOL setting not ok.
b. Loving v. Virginia = Miscegenation laws violated EPC
c. Korematsu v. United States = Laws ok because “emergency” situation per Government.
Brown v. Board of Education
SCOTUS, 1954 (pp. 770-773). Chief Justice WARREN.
Separating children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status and may affect their hearts & minds in a way unlikely to ever be undone.
· Very narrow holding: education only! Did not mean that everyone had to go out and desegregate their street cars. Makes education a basic civil right.
· Brown grew through a string of per curium opinions. Then eventually they got to Loving.
Loving v. Virginia
SCOTUS, 1967 (pp. 761-763). Chief Justice WARREN.
Virginia’s miscegenation statutes cannot stand consistently with the 14th Am./EPC because they restrict the rights of citizens on account of race.
· Harlan had it right in Plessy: there is no legitimate end here. Nothing else has changed in the law except the recognition of the “end” that these apartheid laws were seeking.
o Promoting racial subordination is an illegitimate end – we don’t have to talk about the means, the END is unconstitutional.
· Court says that equal application of a statute containing racial classifications is NOT enough to remove it from the 14th Amendment
· This case is an example of racial classification that exists on the face of the law and applies to both whites and blacks.
Korematsu v. United States
SCOTUS, 1944 (pp.756-761). Justice BLACK.
It was not beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did to prevent espionage and sabotage.
· Case in which SCOTUS first articulated the requirement for strict scrutiny (must show an extremely important reason for it & that the goal cannot be achieved through any less discriminatory alternative).
· Example of a racial classification that exists on the face of the law & applies only to one race.

Korematsu didn’t really get strict scrutiny, so it is a doubtful precedent today (whether you could simply round up the members of the “dangerous” group w/o having individualized hearings – perhaps that would be the tailoring necessary).

Doesn’t place the burden of proof on the gov’t and defers to the gov’t’s claims that this was a TRUE emergency situation.

As MURPHY points out in the dissent, the facts do not point to this being an emergency, so the tailoring isn’t narrow enough.

Ends: Protection against enemies.
Means: Detained all Japanese

No one doubts that national security is a compelling state interest.
But the tailoring too loose. Over AND under-inclusive.

DISSENT: Justice Murphy:

This exclusion goes over the brink of constitutional power and falls into the ugly abyss of racism.
The Order does not meet the judicial test that the gov’t can deprive an individual of his constitutional rights only if the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” that delay/using Constitutional means would not alleviate the danger.
Deprives all those w/in the scope of the Order equal protec

ng on themselves, and it’s much easier to impose restrictions on others than on yourself.
Wants more “active” review:
Wants to know the ACTUAL REASON for the restriction unless the restriction is broad enough
More of a reasonableness review than a rationality. Let’s look at what’s being harmed here.

o Basically says there’s not much reasonableness here, but we are imposing this stupid law on lessors so it’s not as bad as if we were imposing it on owners, but if they were imposing it on owners & lessors alike they would be imposing it on themselves so it wouldn’t be our role to rule on it.
New York City Transit Authority v. Beazer
SCOTUS, 1979 (pp. 738-741). Justice STEVENS. NYCTA and people taking methadone
The Constitution does not authorize a federal court to interfere in the policy decision to not employ those recovering from heroin addiction.
· Demonstrates tolerance for over-inclusiveness under Rational Basis Review.

This a failed attempt at creating a quasi-suspect classification group that would get heightened scrutiny, above minimal but not to intermediate. The π class was asking for a little bit better tailoring – they agreed that you shouldn’t have a job that involves safety, but sweeping the tracks, cleaning out the toilets??

Wanted the NYCTA to give each applicant more attention to see if they are succeeding on the methadone program rather than just heaping them into the “On Methadone” barrel and excluding them.

Perhaps this is one of the reasons that they keep minimal review at all: It could be that on some occasions the court thinks a situation requires a little bit of an extra look that can’t be given w/o any type of review system in place except for strict scrutiny.
DISSENT: Justice WHITE & Justice MARSHALL:

Is it rational to place successfully maintained or recently cured persons in the same category as those attempting to escape heroin addiction rather than in with the general population?

B. Racial Classifications – Strict Scrutiny

First, it must be justified by a compelling governmental/state interest.
Second, the law or policy must be narrowly tailored to achieve that goal or interest.

The law or policy must be the least restrictive means for achieving that interest.

3. What is a compelling state interest?
a. In Croson, SCALIA gives us what HE wants a compelling state interest to be (if he had 5 votes, this is what we’d have): Most narrow, least permissive standard (pg. 841):
i. True emergency of life & limb OR
ii. To undo the effects of past discrimination only where it is necessary to eliminate their own maintenance of a system of unlawful racial classification (only for PROVEN cases of discrimination) <–check this
iii. You may NOT have engaged in discrimination and could still be affected (if an employer needs to hire 1 African American person for each white person some white person will not get that job. That person may not have discriminated once in his life but he’s still affected).
b. O’CONNOR speaking for the majority in Croson is willing to have MORE things be compelling state interests (part II, pg. 836):
i. Assuring that public dollars drawn from tax of all citizens do not serve to finance the evil of private prejudice.
ii. What you need is a bad actor somewhere that is discriminating; you don’t need a court case already proving that the private folk are discriminating. Do need to show some evidence.
iii. Scalia is not willing to go that far.
c. There’s another step that O’CONNOR and her folks aren’t willing to take that the liberals want:
i. Overcoming the effects of societal discrimination.
ii. If you went this far then ALL affirmative action would be permitted.
iii. Want it because that’s what’s creating the unfair starting point.