legalnut.com - Constitutional Law Fall 2003

Article (“Art”) IV, Section (“Sec”) 2, Clause (“Cl”) 3: Fugitive Slave Clause. Slaves must be returned to their owners, even if they had escaped to a state without slavery
13th Amendment (“Am”): Abolition of slavery
18th Am: Prohibition

Other Restraints on Governmental Actors

Powers: Grants explicit power (original Con strategy to restrain Congress), limiting power that is granted

Congress (Art I, Sec. A). When it acts, two questions are asked:

Was it within Congress’s granted powers?
Does it violate someone’s rights?
14th Am: made Bill of Rights applicable to all States

10th Am makes the point that powers not delegated to the US are reserved for the States or the people

Rights: Protection of specific rights (9th Am make the point that not all rights must be enumerated)

Roe v Wade: Right to privacy, no explicitly granted right to privacy in the Con
Note: Con has no “State of Emergency” Clause or National Security override

Important Points on the Constitution

The Exceptions Clause – Art 3, Sec 2, Clause 2: Says that Congress can change the breadth of the Supreme Court’s appellate jurisdiction – does not apply to the Supreme Court’s original jurisdiction (but Congress can put something in the SC’s original jurisdiction into its appellate jurisdiction)
The Supremacy Clause – Art 6, Sec 2: The Constitution, the laws that further it, and treaties of the U.S. are the supreme law of the land (contrary state laws will not prevail)
The Equal Protection Clause – 14th Am, Sec 1: Requires states to treat equally all similarly situated classes of people
Due Process Clause – 5th Am: SC has used this clause to declare that the federal government must abide by the equal protection measures spelled out in the 14th Amendment
Due Process Clause – 14th Am: Used to partially incorporate some of the Bill of Rights (see below)
The Necessary and Proper Clause – Art 1, Sec 8, Cl 18: Very important to the McCulloch decision
Commerce Clause – Art 1, Sec 8, Cl 3: Congress has power to regulate interstate commerce and trade with other nations
The Due Process Clause has also been utilized to recognize unenumerated rights, like privacy (Roe v. Wade)
Important: Which of the first 8 amendments in the Bill of Rights are not incorporated into the 14th Am Due Process Clause and thus not made to apply to the states specifically? Answer: Using the selective incorporation doctrine, the Court has incorporated every amendment save these four: 2nd Am, 3rd Am, 5th Am requirement of grand jury indictment, and the 7th Am.

II. Judicial Review

Marbury v. Madison (1803, p. 22)

Facts: In the last days of his Presidency, Adams appointed justices whom the Senate confirmed but whose commissions had not been delivered by the time Adams left office. Jefferson succeeded Adams and refused to deliver Marbury’s commission. Marbury sought a writ of mandamus to compel Madison, Jefferson’s Secretary of State, to deliver the commissions.

Issue/Holding: Does the Supreme Court (“SC”) have power, under Judiciary Act of 1789 (JA 1789) (bottom p. 26), to issue a writ of mandamus (court order forcing someone to do something)? Yes.

Reasoning/Major Points:

Marbury has a right to the delivery of his commission. He was appointed by Adams to a position that is not removable at will by the executive. He is therefore entitled to all “evidences of offices” that pertain to this position.
Since Marbury has a right, he has a remedy. Marshall states that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Further, he holds that this is a government of “laws, and not of men.”
Marshall establishes the right to judicial review, meaning that the courts have the power to interpret the Con and that the other branches of government are bound by this interpretation.
Marshall does not primarily use the text of the Con, which addresses the judiciary (Art III and Art VI) to establish judicial review. To do so would be circular: these are the very things that are being called into question.
Marshall turns to these 4 propositions:

The fact of a written constitution. Inherent within written cons is that they are the paramount law of the land. The law established by the legislature is binding only in so far as it conforms to the con. It is the “emphatically the province and duty of the judicial department to say what the law is.” This is the “very essence of judicial duty.”

[Note: this justification does not answer why the JUDICIARY has the power to say what is binding as constitutional on the national government. It just posits that this is the “essence of judicial duty.”]

The judicial power is granted to all cases arising under the con. This must mean that the judiciary must look into the con, all parts of it, to determine the validity of the law.
Judges take an oath to support the Con.
The Supremacy Clause: the Con is the supreme law of the land.

Political Question Doctrine: The courts do not have jurisdiction over questions that are merely “political” or “discretionary.” They have jurisdiction over questions concerning the rights of individuals.
The jurisdiction of the SC is confined to its original and appellate jurisdiction as laid out in Article III. [The Congress does have exceptional power to add to the appellate jurisdiction, see below].
Courts are given the power to issue writs of mandamus to a Secretary of State as stated in JA 1789 creating the judicial courts: “the US authorizes the supreme court to ‘issue writs of mandamus…to any courts appointed, or persons holding, office, under the authority of the US” [this power will be shown to be unconstitutional].
Courts do not have power “to inquire how the executive or executive officers, perform duties in which they have discretion.” Marshall insists that the Court has no jurisdiction over purely political questions that are a part of the inner workings of the executive office.
While the Supreme Court was granted the power to issue writs of mandamus by the JA 1789, it does not have jurisdiction over this issue. Issuing a writ is not within the original jurisdiction of the SC which is given in “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Marshall then insists that b/c issuing this writ is like delivering the original commission there is no appellate review involved. Without original or appellate powers, the Court here has no jurisdiction. Congress does not have the authority to grant original jurisdiction where there is appellate and vice versa.
Power granted to SC by JA 1789 to grant writs of mandamus is unconstitutional. The Court has the authority to hold that a legislative act is unconstitutional and the legislature must be bound by these judgments in its duties: judicial review is the province of the courts.

NOTE: Marbury has been overruled insofar as it suggests that Congress can’t give lower courts jurisdiction over cases that fall within the original jurisdiction (OJ) of the SC. The opposite doesn’t apply: SC’s OJ cannot be added to. Further, congressional power to make exceptions means that Congress can change scope of appellate jurisdiction.

III. The Equal Protection of the Laws

A. The Basic Structure of Equal Protection Review

1. Background and Early Decisions: Centrality of Race

Dred Scott v. Sanford (1857, p. 427)

Facts: Scott’s former owner took him from MO to IL then to MN (part of LA Territory). He returned to MO, where Scott was sold as slave to Sandford (from NY). Slavery is legal in MO, but illegal in IL (by state constitution) and MN (by federal statute outlawing slavery in LA territory as provision of the MO Compromise). Scott claims he is a free man and citizen of MO, brings suit in federal court based on diversity of citizenship.

Issues/Holding: Was Scott a citizen of Missouri for diversity purposes? No. Did Scott remain a slave after sojourn to the LA Territory and IL? Yes.

Reasoning/Major Points:

Scott is NOT a citizen of MO for diversity jurisdiction purposes, thus federal court lacks jurisdiction.

The framers never intended to confer federal citizenship upon blacks: they thought that blacks were inferior and were rightly enslaved.
Just because a state confers citizenship upon a person, does not mean he is vested with the privileges of federal citizenship that are the predicate of diversity jurisdiction.

Scott was therefore NOT made free by residence in IL or MN. Due process: Can’t justify taking someone’s property when they haven’t committed a crime.

The MO Compromise is unconstitutional insofar as it prohibits slavery in the LA territory.
The right to property in a slave is granted by the Constitution and the Compromise cannot abrogate this right.

JR’s comments: First part of the opinion classic originalist rhetoric. Court says that it is not the Court’s job to say whether laws are good or bad but to enforce the law as intended. The role of the Court is not to pronounce on the justness of the Con, just to interpret it.

**14th Am specifically overrules Dred Scott: equal protection laws refer not just to citizens but persons.

From pp. 431-35 (Note 2 through end of 435)

Slaughterhouse Cases (1873, p. 433): Rejected equal protection attack on LA statute granting to a single company the exclusive right to slaughter livestock, reasoning that it was the job of the States rather than the federal government to protect civil rights generally, and that the “one pervading purpose” of the 14th Amendment was “the freedom of the slave race…and the protection of the newly-made freeman …from the oppressions of those who had formerly exercised unlimited dominion over him.”
Strauder v. West Virginia (1879, p. 434): Struck down murder conviction of black man tried before a jury from which blacks were excluded. Strauder stands only for the proposition that statutory discrimination which deprives blacks of enjoyment of their rights is unconstitutional; it does not maintain that the state cannot draw distinctions among citizens based on gender, land ownership, age, education, etc.
United States v. Cruikshank (1875, p. 434): Following an election dispute, 60 freedmen were killed and mutilated. 3 of 97 defendants were convicted under the 1870 Enforcement Act, passed to enforce the 14th Am. The Court reversed all three convictions, holding that the 1870 Act did not apply to the actions of private individuals.
The Civil Rights Cases (1883, p. 435): Denied that the 13th and 14th Amendments empowered Congress to prohibit private discrimination in public accommodations.

Ho Ah Kow v. Nunan (9th Cir. 1879, AR)

Facts: HAK convicted under state statute and sent to prison, where his queue is cut off. Ordinance that states that male prisoners, for sanitary reasons, must have their hair cut to within one inch of their scalp. HAK challenges this as cruel and unusual punishment, arguing ordinance targeted Chinese in particular.

Issue/Holding: Is the “Queue Ordinance” constitutional? No.

Reasoning/Major Points:

Law exceeds the authority of the “Board of Supervisors.” The legislature did not authorize them to add to the fine imposed by the court or the right to change and add punishments.
Equal Protection (“EP”) analysis: Structure used in this case is EP doctrine today, seems to be rudimentary strict scrutiny analysis.

Even though this legislation is neutral on its face it is clear to everyone that this law was created to target Chinese people, to single them out, and try to coerce them into compliance.
Law was INTENDED to hurt Chinese people in particular in an invidious way.
Can look to statements of supervisors (for all intents and purposes here akin to legislators) for the meaning of certain terms used, but the court cannot shut its eyes to the obvious and known purpose of this legislation. “When we take our seats on the bench we are not struck with blindness…”
The justification given for the law (to urge Chinese people into compliance with housing statutes) is invalid because it seeks enforcement through a method akin to torture. Thus, the ordinance violated the 14th Am.

2. “Standards of Review”: Mere Rationality and Heightened Scrutiny

Rational Basis (“RB”) Review

TEST: In the absence of interference with a fundamental constitutional right in relation to a suspect class, a law must be REASONABLY or RATIONALLY related to a legitimate state interest to pass Con muster (very difficult to fail this test).

Cases:

Railway Express v. NY (1949, p. 484)

Facts/Issue/Holding: NY traffic regulation which prohibited “advertising vehicles” but which permitted placing on a truck “business notices” relating to the business of the truck’s owner was ruled constitutional. Deference is given to legislatures in discerning a rational relationship between classifications and the goals of the statute.

Reasoning/Major Points:

When not dealing with a suspect class deference given to local authorities (municipal govt., state legislature) in how they view the fulfillment of the law’s goals through the classifications they set up. Assumes some rational relationship between these classifications and goals of statute.

Court defers to City’s assessment that distinctions set up by ordinance further aim of eliminating pedestrian distraction.
“It is no requirement of equal protection that all evils of the same genus be eradicated or nothing at all.”

Concurrence: Maintains there is no rational difference between the classifications of statute in relation to statute’s goals, but maintains that discrimination constitutional because statute distinguishes between groups who contribute to the evil out of their own self-interest (constitutional) and groups who do so “for hire” (unconstitutional).

Williamson v. Lee Optical (1955, p. 485)

Facts/Issue/Holding: OK law made it unlawful for anyone not optometrist or ophthalmologists to fit lenses. Statute specifically exempted “ready-to-wear” sellers. In effect, statute prevented opticians from fitting old glasses into new frames. Court held did not violate EP clause.

Reasoning/Major Points:

EP clause extends ONLY to invidious discrimination.
In cases where invidious discrimination not apparent, legislatures may take steps to eliminate some evils but not all without violating the EP clause.
Legislature may have felt that the “ready-to-wear” branch did not pose as great a problem as the other branches.

Minnesota v. Clover Leaf Creamery Co. (1981, p. 485)

Facts/Issue/Holding: MN law banned milk sales in plastic non-returnable bottles, but permitted non-returnable paperboard containers. Court upholds law as constitutional.

Reasoning/Major Points:

The Court assumes that objectives articulated by legislature are the actual objectives of statute (exceptional circumstances may force Court to alter this assumption).
Proof that legislature was MISTAKEN in creating classifications to serve a state goal does NOT show that the classifications are not rationally related to the furtherance of a state goal.

If issue was “at least debatable” to legislature creating the statute, evidence showing classification is not rational will not prevail.
States do not have to convince Court of correctness of legislative judgments. Even if shown that statute does not fulfill the objectives intended to fulfill, still cannot be used as proof of statute’s irrationality for rational basis review.

Strict Scrutiny (“SS”)

TEST: Law must be “narrowly tailored to further a compelling state interest”

Use heightened means of scrutiny to “smoke out” underlying “irrational” prejudice
If over- or under-inclusive, law gets struck down. Virtually impossible to pass strict scrutiny due to the narrow requirement, law rarely so well tailored

JR’s two modes of analyzing state actions under SS:

1) Justificatory. Balance state interest with harm to the individuals involved. In the case of racial profiling, provide evidence on how well it stops crime. Cost/benefit analysis, balancing of interests.

2) Purposivist (very different). What were the reasons behind the state legislation or objectives behind the action? Some state interests are illegitimate to pursue no matter what the cost/benefit.

Cases:

Korematsu v. United States (1944, p. 501)

Facts/Issue/Holding: Korematsu, Japanese-American citizen refuses to leave his home for internment camp during WWII. Executive Order 9066, issued by military commander, required all persons of Japanese descent—including U.S. citizens—to report to “Assembly Centers”. Court upholds the order, saying it was based on a public necessity rather than racial antagonism.

Reasoning/Major Points:

Laws curtailing civil rights of single racial group are immediately suspect and warrant SS, but this does not mean laws that facially discriminate are automatically unconstitutional. (Today, Korematsu stands for proposition that laws that are facially racially discriminatory almost always unjust and unconstitutional (see p. 505 Note).)
“Pressing public necessity” can justify racially discriminatory laws if shown to have a “definite and close” relationship to a state aim.

Deference given to the military authorities in their determination of what is necessary in this instance.
Important to the majority that Korematsu was not excluded because of hatred of him or his race. Rather, he was excluded because of military necessity.

Dissent: When dealing with a military order we can use rational basis test instead of SS. Even so, however, there is no rational basis for confining ALL Japanese people because some may be disloyal.

Loving v. Virginia (1967, p. 533)

Facts: Interracial couple convicted under a Virginia statute making it a felony for any white person to marry any "colored" person, or for any "colored" person to marry any white person.

Issue/Holding: Does a state statute preventing marriages between persons solely on the basis of racial classifications violate the EP and Due Process clauses of 14th Am? Yes.

Reasoning/Major Points:

State defended statute because it punished both members of an interracial couple equally, and thus did not use racial classifications to make invidious discrimination in furtherance of its "legitimate" state purpose.
Court held that "equal application" of a statute containing racial classifications does not remove the classifications from 14th Am's proscription of invidious racial discrimination.

First time Court says that the purpose of the law was racist, making it unconstitutional
White supremacy is at issue, holding does not necessarily turn on the effect. Court uses strict scrutiny to smoke out the purpose.

EP clause requires consideration of whether such classifications constitute arbitrary and invidious discrimination.

Racial classifications in a statute must be shown to be necessary to some permissible state objective, independent of the racial discrimination.
Statute patently has no legitimate overriding purpose independent of invidious racial discrimination, as shown by the fact that it barred only interracial marriages involving whites, not, for instance, those between African-Americans and Asians.

Washington v. Davis (1976, p. 514)

Facts: Unsuccessful African-American applicants to D.C. police force claimed that verbal skills test unconstitutionally discriminated against them because a higher percentage of African-Americans than of white Americans failed the test. They claimed that there was no evidence establishing the test's accuracy in measuring subsequent job performance, but NOT that the test constituted "intentional" or "purposeful" discrimination against them.

Issue/Holding: Is a law or other official act is unconstitutional solely because it has a racially disproportionate impact? No.

Reasoning/Major Points:

Court holds that 1) there is a rational basis for test; and 2) there was no invidious purpose in administration