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November Notes Con Law


November 1, 1999


Means and ends test


Levels of review tell us how strict the court is (with strict scrutiny)

Standard of review also tells how deferential they are to Congress or the states


Deference seems to be a common theme now


The court takes different strictness with means and ends


Due process - if something fundamental is at stake then will use strict scrutiny


What is difference between substantive due process and procedural due process


Griswald - all about privacy; get privacy by putting some substantive provision in to the 14th Amendment


Figure out how or whether the constitution gives any rights to abortion.




November 3, 1999


More on abortion cases


Blackmun, the author of Roe v Wade, used to represent abortion doctors before


What Constitutional provision is Roe based on?

-         14th Amendment; right of privacy, includes a womanís right to terminate her pregnancy

-         the right of privacy is not absolute; state can protect its interests as well (life of the unborn, health of the mother)


Trimester scheme

††††††††††† 1.. first trimester - state should not regulate in this period

††††††††††† 2.. second trimester - state can put in regulations that reasonably relate to the motherís health

††††††††††† 3.. third trimester - state may, if it chooses, regulate and even proscribe abortion, except when an abortion is necessary to save the life of the mother


What can Congress do if they donít like courtís ruling?

-         pass a Constitutional amendment

-         tax abortion

-         withhold funds to states that allow abortion

-         regulate abortion under commerce clause

-         section 5, 14th Amendment (Buerne case) -


Once the supreme court has spoken, what can Congress do? VERY LIKELY EXAM

- Talk about where Congress gets its power:

-         talk about Lopez, Prince (substantial affect on commerce)

-         also Morgan, Buerne Section 5, 14th Amendment


Casey overruled Akron and Thornburgh




November 8, 1999


State has two interests:

1.. maternal health

2.. potential life

what do we do about these competing interests?Some say the state gets to weigh and balance this.The Roe majority went farther and told the states how to weigh these interests.


Need a majority of 5 to win anything on the Supreme Court.

If you have only 3 agreeing on one line of argument, you have only a plurality.


Webster (page 555) - 5 votes to uphold viability testing, but NO majority to uphold the rational.Justice Scalia was ready to overturn Roe.Rehnquist, White, Kennedy reconsidered the Roe framework.OíConnor thinks Roe is troubling, but does not want to overturn it.This is not the case to overturn Roe.

-         important for upholding Missouri law

-         also important because it sets a trend towards getting rid of Roe

-         OíConnor thinks the trimester system is on a collision course with itself (because thanks to medical advances the trimester development has less importance; the fetus can survive longer outside of the womb, the motherís health can be protected for longer into the pregnancy)



Are these five provisions constitutional:

1.. informed consent at least 24 hours before the abortion is performed

-         Constitutional

2.. mandates the informed consent of one parent

-         Constitutional as long as there is the judicial bypass option

3..husband notification of abortion

-         Unconstitutional - infringes on the womanís liberty


Give lead case, the test, arguments on both sides as to how the test applies.Then say here is what the court would most likely do.




November 10, 1999


Sample test question - Utah statute and how it would come out under Casey (and Roe).

-         in the exam, you would go through where the court is now, which would be with Casey

How it would come out under Roe:

1).. abortion only by physician if performed 90 days or more after the commencement - probably be unconstitutional under Roe because it interferes with first and second trimester

2).. abortion only under the following circumstances - unconstitutional under Roe

3).. after 20 weeks abortion can be performed only in the following circumstances - too early to restrict abortion; might be preventing abortion between 20 and 24 weeks when the fetus is not viable which gets in the way of the womanís right - unconstitutional under Roe


How would it come out under Casey?

Test is whether the regulation creates an ďundue burdenĒ on the woman.

1).. 90 day restriction - probably need more information; it is harder to strike down this provision under Casey than it was under Roe.Hard to prove that this is an undue burden.

2).. before viability stateís interest are not strong enough to regulate abortion. Casey tells us about pre-viability and post viability.This restricts too much during the pre-viability section under Casey.Limiting pre-viability abortions to these circumstances is very restrictive, and too restrictive under Casey.This puts an undue burden, or substantial obstacle on the womanís right to choose abortion during the pre-viability phase.

3).. after 20 weeks - this seems to suggest that the state is saying that 20 weeks is viability; some of the women in this group will want abortion of non-viable fetuses for non therapeutic reasons.The state is placing an undue burden by saying you cannot have this type of abortion at all.Therefore UNCONSTITUTIONAL.


Say: Casey is law of abortion now.Casey gave us a plurality vote.Here is what the Casey test is ___ .


Donít forget the pre and post viability part of Casey.If you see something that says ANY abortion, then the state is regulating the pre-viability abortions.Then look to Casey and talk about the ďsubstantial obstacleĒ test.††



November 15, 1999


Right to die cases


Cruzan - court considered right to die; stateís interest outweighs the individualís interest; state may apply a clear and convincing evidence standard in proceedings where a guardian seeks to [help someone die].


Rehnquist does not like substantive due process arguments; favors a rational basis level of scrutiny


Courts have addressed the following right to die issues:

-         right to reject or terminate unwanted medical treatment

-         right to commit suicide

-         right to assisted suicide

-         right to active voluntary euthanasia

-         right to die with dignity

-         right to control time and manner of oneís death


Washington v. Glucksberg

whether the constitution requires a constitutionally recognizes right to physician assisted suicide.

-         limited to a few of the citizens

-         few must exercise justification of constitutional right

-         the right must be closely regulated, if it should be recognized as a right


should states recognize a liberty interest?

-         may limit stateís flexibility to deal with this issue

-         three state interests: life (preventing suicide, protection of life is highest in constitution); prevent abuse and undue influence; interest in regulating the medical profession (state wants to maintain a clear line between doctors as healers and doctors as instruments of death


Liberty does not include the right to a physician assisted suicide - 9-0 vote although many different opinions.




November 17, 1999


December 10, Room 135 2:00pm - CON LAW review session


Next Wed will also be a review session


Assisted suicide - two scenarios

-         can give drugs to relieve pain (no intention to kill, even though drugs may hasten death)

-         other scenario, is where the drugs are given to kill, is NOT allowed (doctor assisted suicide)


A good way to start substantive due process questions is to look at nationís history (such as in Glucksberg).


A person with severe and chronic pain, terminally ill,that cannot be relieved by doctors, does that person have a liberty interest after Glucksberg?†† (can she request physician assited suicide?) KNOW FOR EXAM



OíConner - Yes, unless person is not competent

Stevens - yes, those on the threshold of death may have a constitutionally protected interest that may outweigh the Stateís interest

Souter - ?

Ginsburg - Concurred with OíConner, yes

Breyer - right to die with dignity, yes



Majority - NO, unless this can be called lots of pain medication




Rehnquist ?


Procedural due process - straight forward reading of the 14th Amendment - state may deprive you of life, liberty, or property as long as they meet certain procedural requirements


3 Basic questions:

1.. has there been a deprivation

2.. of life, liberty, or property

3.. without due process of law?


Life - criminal law, death penalty, death and dying

Liberty - prisoner cases, physical restraints

Property - person that has an entitlement to it (Roth a terminal position was not an entitlement)


No, personal representation is not a liberty interest for due process analysis


Lots of cases what life, liberty and property are.


Mathews case - what process is due?The court held that pretermination evidentiary hearings were not required in the context of disability benefits.

TEST: specific dictates of due process generally require consideration of three distinct factors:

††††††††††† 1.. the private interest that will be affected by the official action

††††††††††† 2.. the risk pf an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional substitute procedural safeguards

3.. the governmentís interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail


Procedural DP -will focus on when government give benefits, when they go away


For this course, concentrate more on substantive due process.SDP is where the hard questions are.The USSC is more afraid of SDP.




November 22, 1999


Bill of rights restrains the federal government, not the state government


1.. Article IV, ß 2 p. 425

2.. Corfield (1823) p. 425

3.. Barron (1933) p. 418

4.. 14th Amendment (1868)

††††††††††† a.. privileges or immunities

††††††††††† ††††††††††† i.. Slaughterhouse p. 424

††††††††††† ††††††††††† ii.. Edwards p 336

††††††††††† ††††††††††† iii.. Saenz p. 76supp

††††††††††† b.. Due Process

††††††††††† ††††††††††† i.. procedural

††††††††††† ††††††††††† ii.. incorporation

††††††††††† ††††††††††† iii.. substantive due process

††††††††††† c.. equal protection (SECOND SEMESTER MATERIAL)

††††††††††† d.. state action

††††††††††† ††††††††††† i.. Civil Rights Cases (1883) p.921

††††††††††† ††††††††††† ii.. What is state action?

††††††††††† e.. Congressís authority to regulate private behavior



Justice Black - privileges and immunities language was what incorporated the bill of rights; he did not want selective incorporation


Review of Slaughter House cases - court reads very narrow reading of privileges and immunities; gave a federal list

-         basically read any substantive content out of privileges and immunities

-         got rid of one clause, so all the action about what 14th amendment did was discussed in due process

-         Very NARROW reading of federal privileges and immunities

-         Told butchers to look to the STATE for redress and not to the federal government

-         Privileges and immunities are only invoked very rarely


Commerce clause violation - Edwards (page 336) - canít bring a person into the state who is not a resident of the state

Dormant commerce clause - states are not supposed to get in the way of interstate commerce

-         not a lot of law on privileges and immunities because of slaughterhouse

-         P&I only invoked very rarely


Saenz - have a right to travel (meaning you can enter and leave another state, and be treated as a welcome visitor there (Article 4))

-         14th amendment gives national citizenship; right to travel in another state and stay there and be treated as other state citizens (right of national citizenship)

-         Article 4 - gives state citizenship; gives right to be treated as a welcome visitor in another state


Griswald, Eisenstat, Roe - due process cases


Due process had to step in since privileges and immunities did not do much.


State action - Civil Rights Cases - make sure you know why it is important for this exam

State actions means that it is states that are limited by the 14th Amendment, not private parties.Look to see if the action is close enough to a state action so that your action will be considered a state action.


Does Congress have the ability to regulate action of private person? (this is a different question than if states have ability).

-         Congress can hold private parties responsible for conduct that would violate 14th amendment


How much authority does Congress have to regulate conduct of private powers?

Always consider the following when thinking about where Congress gets its power:

††††††††††† 1.. Consider the Commerce Clause

††††††††††† 2.. Section 5 of the 14th Amendment

††††††††††† ††††††††††† a.. remedial and substantive power (Riffer, Burney)

††††††††††† ††††††††††† b.. reaches to states and not to private persons (Section I)

††††††††††† ††††††††††† c.. Under Section 5


Section 5 is now governed by new Beorne case - things that are remedial that are not substantive


Now Congressís commerce power does not look so big, so maybe should look to section 5; but now we know that section 5 is limited


HYPO: PART I: have Roe v. Wade, in 1990, Congress in anticipation of Casey decides that they want to make Roe into federal law so they want to pass a statute that says the trimester approach is the law

PART II - Congress, after Casey, decided that it wanted to put Roe back in.

How would you decide if they could do it before Casey?

-         abortion, two sources of congressional power - COMMERCE - see if there is a substantial effect on commerce

-         or can you say stuff about substantive due process, that Congress would have power to pass legislation under Section 5 of 14th Amendment


How about after Casey?

-         look to Beourne - very similar, there we had one first amendment standard against another; Would have to do an analysis under remedial vs. substantive

-         Supreme Court might be upset that the congress is trying to make the law

-         Make sure to review Boerne so that you know how to analyze this!!!


DeShaney (p.960) - No constitutional protection for a child being beaten by his father.

-         nothing in the language of the due process clause requires the state to protect the life, liberty, and property of its citizens against invasion by private actors.

-         DISSENT - inaction can be just as bad as action




November 24, 1999


EXAM review


Will be either two or three questions

But she probably will do one long one and two shorter ones - pay attention to point values and recommended time


Use the syllabus as a checklist - memorize it


Key thing is to identify the area of the law and figure out what are you are in


Judicial Powers review


Watch out for over lapping topic areas:

-         Judicial powers and Murbury (judicial review - whether the court is the ultimate interpreter of the law or not)

-         But Marbury pops up later in the semester in Boerne so need to recognze this - if Congress had power to make substantive law it would be turning Marbury on its head

-         Know that court in Boerne is arguing about Marbury and that is why they distinguished between substantive and remedial parts


Second part under judicial power is political question and standing - any time plaintiffs go to court we can ask about standing and political questions

-         if you have people going to court, they have to have standing - make sure you address this

-         focus on 3 constitutional arguments and be able to identify or spot ___

-         Use Baker v. Carr for political question

-         Rainer and Lujan tell about courtís current position on standing


Questions in Judge Nixon case can also pop up later (political questions can also overlap with Congressís role in impeachments)

-         executive powers also have impeachment questions



Judicial power summary to know:Marbury, Standing, Nixon case about impeachment


Legislative power review:


Whenever you see Congress acting ask what is the source of their authority?Two sources:

-         sec 5, 14th Amendment)

-/- Boerne, Roe, Casey - how to argue about authority under Sec 5, 14th Amendment; remedial v. substantive purposes

-         Commerce Clause - Lopez, Prince, New York - key cases, important to figure out what the current law is and where the current justices of the court stand on these issues; Have a good sense as to how the justices would vote now

-         Spending power - pretty broad, understand general holding of Butler; if Congress is giving money to states; spending is indicated if she says Congress is passing legislation to give money to the states to do ÖĒ Remember that they cannot give money in violation of the constitution; should be easy to see it in the facts (jus tif Congress is giving money to do something)


Executive Power review


-         will have a copy of the constitution in the exam

-         look to the C to see what the President is allowed to do

-         in the cases have a general sense of the most famous cases: Steel Seizure remains the important case

o       tri part division, article two authority, article two authoriuty in absense of Congress;s grant or denial, with Congress approval.KNOW this THREE part test; Justice Rehnquist seems to turn these three categories into a spectrum in the Thames (names?) case (WHAT CASE?)

-         Nixon, Clinton v. Jones - presidential immunity, understand when presidents have immunity and when they donít


Separation of powers review:


-         Separation of powers is the hardest area:

-         Categorize the different sections - make a chart

-         Stop and ask BASIC questions - like who is doing what?Which branch is acting, and where do they get the power to act?

-         Start the separation of actors question by asking WHO ARE THE ACTORS?Circle, and separate them out.Figure out what branch they belong to, or what branch they usually belong to and WHAT ARE THEY DOING NOW?

-         Formalists like it when everyone stays in branch they are supposed to be doing.But separation of powers questions when it looks like people are doing different tasks.IS THE TASK LEGISLATIVE, EXECUTIVE, OR JUDICIAL?

-         Know formalists v functionalists: Chada

-         FORMALISTS: 1) the powers can be categorically distinguished, 2) harm to be avoided is commingling of the powers, 3) the best way to avoid commingling of powers is to adhere to the original text (Chada, Line Item Veto arguments), 4) the court needs to intervene to strike down the other branches when they commingle (active judicial intervention is required because political process is not any good in separation of powers)

-         FUNCTIONALISTS: 1) the powers overlap considerably and you canít categorically distinguish what the powers do, 2) the harm to be avoided is the grandizement of one or gutting of another power (donít want to take power away from one and give it to the other; donít want one branch to get too much power; issue of who is gaining at the expense of whom, and is anyone getting to omuch power), 3) the court should be flexible and evolutionary (not literalist; time change, things happen that could not have been foreseen 200 years ago; constitutional structure has lots of flexibility in it; need to be innovative; okay to be innovative as long as a branch does not take away too much power from some other power), 4) the court should generally defer to the political branches (more trust of the political process - want to let the branches battle against themselves)

-         Recap: 1) Powers overlap considerably, 2) harm to be avoided is grandizing or gutting, 3) court should be flexible and evolutionary, 4) the court should defer to the political branches

-         Go through Morrison, Line Item Veto - know what has been held constitutional and what is unconstitutional; kinds of arguments about constitutional text and separation of powers

-         After you get everyone separated into what they are doing, look to constitution to see if they are doing something they should not be doing.


Dormant commerce clause (privileges and immunities)

-         refer to the yes and no chart that she put on the board a lot

-         go through all those little cases - just memorize enough to know how the chart works

-         need to understand what the dormant commerce clause is or else you wonít be able to spot it

-         donít confuse Article 4 (citizens of other states) 14th (national citizenship) privileges and immunities

-         know the basic concerns about discriminatory intent whether on its face or implied

-         Saenz - talking mainly about 14th Amendment, but mention Article 4 citizens of other states; when you become a resident of a new state you are protected by 14th Amendment; But Article 4 is no discrimination by other states

-         Camdem, Piper - Article 4

-         Slaughterhouse list of cases - 14th Amendment (do not need to remember this list)

-         Unless you see something factually similar to the Saenz case, donít deal with 14th Amendment, otherwise stick with Article 4 privileges and immunities.Look at chart.


Substantive Due process cases

-         Gluxberg case - Rehnquist view

-         Not much info on these because we just did them


Legal to give pain medication even though it might hasten death - okay because no one is intending death, death is unintended, main point is to stop pain; NO intention to kill


Physician assisted suicide - not giving pain medication with the intent to lessen pain, but intent is to make person die; arguments revolve around differences in intent

-         distinction needs to be made between relieving pain and hastening death

-         hard to know what to do with person whose pain cannot be relieved??

-/- justices are worried about people being in endless pain; donít see state interest in keeping person in pain alive


one of her questions is probably a case that has not been resolved yet.She will ask how will this court resolve this.Here is where you need to know the current justices.She will ask: ďwrite the opinion for the court and indicate how each justice will voteĒWrite dissents, and concurring as well.Here is the majority and minority arguments (B, B+ answer).If you know how justices are going to vote, that will get you a better grade.


Federalism is big issue right now.Seems to be a Rehnquist court now.


2-3 December 10, Rm. 135 is the review session.Send questions by e-mail