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October 4, 1999


Supreme Court term starts today.  Lots of state and federal issues to be decided this year.


Review of sample questions:

1..  no idea; depends on whether it is high crimes and misdemeanors

-         high crimes and misdemeanors cannot be interpreted too narrowly;

-         can do a straight forward legal analysis; get a sense of how those terms were used when they were put in the constitution; then build a historical argument based on the framer’s point of view

-         but a broader argument is the political aspects; is Congress bound only to what the framer’s wanted?  Many people say no.  Reason framer’s said it like they did is so Congress would take into account all the other arguments.  Want the Congress to take into account broad kinds of political concerns about the well being of the nation, etc.  The Framer’s only wanted to open the matter up for debate.  This is why the framer’s put this for the Congress not the judiciary.


2.. Can the president pardon himself? the president cannot pardon himself: Article II, § 2

-         depends on the degree of the crime as to what the president can pardon himself

-         some people say that president should not be able to pardon himself for anything; C does not allow for self pardon

-         but then again, it does not say


3.. does president have authority to issue clemency of Puerto Ricans?

-         yes; Article II, §2









Immigration and Nationalization Act

- the House (only the House) gets a veto power

AG: suspend deportation and report to congress








Easiest way to go through these cases to figure out who is acting and what are they doing.  Then figure out what is violated: separation of powers or the Constitution?


INS v. Chadha

-         how are agencies going to be allowed to execute laws while also keeping control over the legislative branches?



October 6, 1999


More on separation of powers


How much power can Congress delegate?



            Delegable principles

Literal violation


Separation of powers


Should analyze these cases by saying who is doing what?


If something is legislation have to follow strict procedures of the Constitution







This is legislation; must meet requirements for legislation






Says this is a judicial proceeding


Congress -

Enforce legislation






New York


Pass legislation

Cancel spending; notify Congress of this

Congress can


A decision on standing can be very different from a decision on the merits.



Scalia questions page 39supp.  These are typical questions to ask:

1.. has congress given the President the wrong kind of power, i.e. non-executive power?

2.. has congress given the president the power to encroach upon the Congress’ own constitutionality reserved territory

3.. Has congress given the president too much power, violating the doctrine of nondelegation


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October 18, 1999


Exam - end of semester is approaching quickly; closed book exam; think about how to present a good exam; use her syllabus as an outline; memorize the types of issues based on the syllabus

-         a standing issue could easily be mixed into an abortion question

-         Congress and the commerce clause

-         Remember that the first section of the course we were focused on what happens when Congress acts; now we are focused on what happens when states act.  Remember to identify a problem in the dormant commerce clause area by seeing who is acting - if it is the states then it is a dormant commerce clause


Dormant commerce clause, Privileges and Immunities under Article 4, and Privileges and Immunities of Amendment 14

-         lots of overlap between dormant commerce clause and privileges and immunities

-         need to know enough of the differences between these to know how a case would come out under each

-         be able to distinguish one from another

-         often will be different answers depending on which it is analyzed as; best answer is to say “here is how the court has handled it…” use the analysis the court has used in different areas.  Say “this is what the court has held here and these is what I think the implications are . . . . .”   Make sure you know where the current court stands.  Know what the most recent word on the topic is. 


GENERAL STRUCTURE of exam answers

3 essay questions, spot right issues, identify key cases in that area, analyze the arguments (here is how the problem comes out under these lead cases . . . ); know what the general test is under each of the key cases

-         Lopez

-         Term limits

-         Know name of case, central argument, how to analyze it; also good to know what the dissent says

-         Can say “a majority opinion would say this … , and the dissent would say this…”

-         Use the structure given in cases (look at Lopez for example)

-         Questions she give will be borderline; so make sure you know both sides of the issue;

-         get issue correct; grade improves when you use the key cases; best grade uses the cases very well with a well organized and argued well

-         just know the cases she mentioned in class; know what the dispute is about, how to analyze, use the facts under those cases

-         she will look at outlines, answers if we need help

-         the commerce clause questions are good practice for exam



Dormant commerce clause - is the negative implications of the commerce clause; because Congress is granted the affirmative power to grant power to states; is the implication that states cannot step into this area?


Does state law discriminate against out of state?  (this is the way to analyze this KNOW THIS DIAGRAM)

            A.. NO -

                        1.. Privileges and immunities of Article IV does not apply

                        2.. may still violate domant commerce clause if law burdens ICC and

burdens exceed benefits

            B.. YES -

1.. if burdens interstate commerce clause (ICC) , violation unless necessary to achieve important governmental purpose

                                    a.. congressional approval

                                    b.. market participant

2.. if discriminates on important economic activity fundamental - violates privileges and immunities necessary to achieve important governmental purpose (substantial relationship to governmental objective)

a.. Privileges and immunities does not apply to corporations and aliens


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October 20, 1999


New York v. US - look to for comparing Kassel case


Sometimes you can uphold a seemingly discriminatory state law when the burdens don’t outweigh the benefits; the burdens don’t always outweigh the benefits.


Tax exemption cannot be characterized as a proprietary activity falling within the market-participant exception

-         a taxing statute is NOT a market participant

-         taxing is regulatory

-         statute is virtually per se invalid


Negative implications of the commerce clause

THOMAS dissent - the negative commerce clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.


GOOD EXAMPLE of how to go through the dormant commerce clause is given in Ch 5 supplement - Page 28 - 32  gives the court’s current standing on the issues


Now we are studying 14th Amendment  -  privileges and immunities section

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


Privileges and immunities clause of article 4 permits people to travel and pursue a vocation (calling); Out of staters can pursue a calling


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October 25, 1999


Substantive due process

Procedural due process

-         start figuring out what the difference and how the issues fall out

-         pay attention to the types of cases and issues


When court reviews legislation, what standard of review should it use? 

- Strict scrutiny

- Intermediate level scrutiny

- Rational basis for review


often when courts are very strict about reading legislation, that means they will strike it down

-         need to figure out which types of cases fit into which areas of review

-         figure out what standard they are using and what type of due process is being used


INCORPORATION OF THE BILL OF RIGHTS (application to the states)

First amendment - has been incorporated to the states

Second amendment - has NOT been incorporated; no cases on this yet

Third amendment - has NOT been incorporated; probably because these types of cases do

not come before the court; had this question been posed to the court, most likely this would have been incorporated

Fourth amendment - Wolf v. Colorado;

Fifth amendment - has been incorporated, except for grand jury indictment provision;

Stetan v. Maryland, Malloy v. Hogan, Chicago Burlington

Sixth amendment - has been incorporated; Gideon v. Wainwrite, Klopfer, Pointer v.

Texas, Washington v. Texas

Seventh amendment - has been NOT been incorporated; civil is different from criminal

Eighth amendment - has been incorporated; dispute about whether excessive bail

provision is incorporated

Ninth amendment - has NOT been incorporated; no specific cases; the text of the

amendment suggests that it cannot be incorporated; not a clear enough source of rights in order to give something to states

Tenth amendment - has NOT been incorporated; why incorporate something that is

already given to the states?


Language supporting arguments for incorporation in the 14th Amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

Language supporting arguments against incorporation in the 14th Amendment:




October 27, 1999


Lochner is known as being a bad case


Questions at top of 466 summarize Lochner concerns - good review

What were the evils of Lochner?

The giving of substantive content to due process?

The expansive view of liberty and property to include values no explicitly stated in the Constitution?

(more questions on page 466)


Should there be liberty of contract?

Simply reading liberty broadly is not likely to produce frequent Court invalidations of laws: if a mere rationality standard is used an expansive reading of liberty does not support frequent judicial vetoes.


What is substantive v. procedural due process?

One argument is that procedural due process is all that is protected.  The states must just use the correct procedures and if so can go ahead and act.


Substantive due process is when the court uses the due process clause to look at the substance of the legislation. 

-         some people say that due process is ONLY procedural and should not be used for a substantive review of the state’s legislation


Lochner and legislative ends - the court refused to accept the end of the legislation that the state had passed; the refusal of the court to accept the redressing of inequalities as a legitimate ingredient of the police power law at the base of many of the Lochner era invalidations.

-         inequalities


Lochner and means-ends relationships - health law was a legitimate end to the state; but the court said they would not just do the ends, but would do a full means/ends relationship


Think about what’s wrong with Lochner; these are the problems with Lochner

1.. liberty means only freedom from bodily restraint

2.. even if liberty broader than that, due process of law means only an entitlement to fair procedures

3.. even if a substantive aspect to due process, and even if it is broader than freedom from bodily restraint, entering in to contract is not one of these liberties

            a.. is contracts one of them?  Different from abortion, right to die, contraceptives?

4.. even if due process protects contracts, the state was justified in overriding those rights by regulating baker’s hours - see Harlen dissent - because the connection to health was close enough

5.. even if the legislature’s health or economic theories were doubtful court’s should not second guess them



Williamson v. Lee p481




The District Court held unconstitutional several sections of an Oklahoma law of 1953.  First, it held invalid under the due proces clause the portions of the section which make it unlawful for any person to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority from an Oklahoma licensed ophthalmologist or optometrist.




Whether the Oklahoma statute is unconstitutional.




Although the legislature was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary or reasonably related to the ends sought.  We see no constitutional reason why a ASate may not treat all who deal with the human eye as members of a profession who should use no merchandising methods for obtaining customers.




The legislature may have concluded that eye examinations were so critical, not only for correction of vision, but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert.  It is enough that there is an evil at hand for correction, and that the legislative measure was a rational way to correct it.




Famous footnote: it is unnecessary to consider now whether legislation which restricts those political processes, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment than are most other types of legislation.  Whether prejudice against discrete and insular minorities may be a special provision. 



Nebia v. New York

-         dissent sounds like Lochner

-         majority uses a less strict test than


West Coast Hotel case

-         switch in time that saved nine; Roosevelt’s court packing plan


What to look for in Griswold:

The justices disagree, commentators disagree; hard to answer these questions in a way that will satisfy everyone


Range of opinions on what to do with the statute