Constitutional Law — All Testable Topics

I. JUDICIAL POWER & JUSTICIABILITY

• Marbury v. Madison — Judicial Review KEY

  Holding: "It is emphatically the province and duty of the judicial department to say what the law is."

  Three takeaways tested: (1) Constitution allocates power among branches. (2) Congress cannot increase/limit SCOTUS's original jurisdiction. (3) Courts may review executive and legislative conduct for constitutionality.

  NOT TESTED: Appellate authority subject to "such Exceptions, and Regulations as Congress shall make" (Ex parte McCardle; United States v. Klein).

• SCOTUS Review of State Court Judgments

  SCOTUS may review final judgments from state's highest court involving federal statutes, treaties, or U.S. constitutional law. Rationale: uniformity of federal constitutional interpretation.

  NOT TESTED: Federal habeas review of state court judgments.

• Interpretive Approaches to the Constitution

  Originalism/Textualism: legislative history; constitutional convention debates; original public meaning at adoption.

  Non-Originalism: Living Constitution; evolving standards.

  Special attention to Reconstruction Amendments (13th, 14th, 15th) — when adopted and who had voice in shaping them matters.

• Justiciability — "Case or Controversy" (Art. III) KEY

  Five doctrines limit when federal courts may hear a case:

  1. Prohibition against advisory opinions NOT TESTED DIRECTLY
  2. Standing
  3. Ripeness
  4. Mootness
  5. Political question doctrine

  "Many of the most consequential issues affecting individuals and our society are resolved by courts at the procedural stage."

• Standing KEY

  Constitutional requirements (all three):

  • Injury — actual or imminent; concrete; particularized; not hypothetical or conjectural. Allen v. Wright; Lujan v. Defenders of Wildlife; City of LA v. Lyons; Massachusetts v. EPA; Clapper v. Amnesty International.
  • Traceability — fairly traceable to defendant's conduct.
  • Redressability — likely redressed by favorable decision.

  Prudential limits:

  • No third-party standing. Exceptions: abortion providers (Singleton v. Wulff); contraception providers (Griswold); racially restrictive covenants (Barrows v. Jackson); near-beer sellers (Craig v. Boren); noncustodial parent 1A (Elk Grove v. Newdow). 1A overbreadth NOT TESTED.
  • No general taxpayer/citizen standing — United States v. Richardson.
  • Exception: Flast v. Cohen (Establishment Clause challenges). Future uncertain.
  • Prudential vs. constitutional waiver: June Medical Services v. Russo.

  EXAM TIP: Always run injury/traceability/redressability explicitly before moving on.
• Ripeness

  Most relevant for pre-enforcement challenges. Overlaps with standing's "imminent injury."

  • Poe v. Ullman — unenforced contraception statute not ripe.
  • Clapper v. Amnesty International — speculative surveillance chain not ripe.
  • Goldwater v. Carter — treaty termination not ripe.

  NOT SPECIFICALLY TESTED: Two-factor test from Abbott Laboratories v. Gardner (fitness; hardship). Professor: "mushy" and "all over the map."

• Mootness

  Live controversy required at all stages of litigation.

  Three exceptions:

  • Capable of repetition yet evading review — Roe v. Wade; Moore v. Ogilvie. Compare: DeFunis v. Odegaard (3L about to graduate = moot; no repetition possible).
  • Voluntary cessation — Friends of the Earth v. Laidlaw.
  • Class actions — US Parole Comm'n v. Geraghty.
• Political Question Doctrine

  Some issues committed to political branches; nonjusticiable regardless of how egregious the conduct.

  • Republican Form of Government Clause (Art. IV §4) — nonjusticiable.
  • President's foreign policy; treaty termination — Goldwater v. Carter.

  Voting cases:

  • Baker v. Carr — malapportionment justiciable under EPC.
  • Rucho v. Common Cause — partisan gerrymandering = nonjusticiable.
  • Gomillion v. Lightfoot — racial gerrymander justiciable under EPC (28-sided Tuskegee map).
  • Alexander v. SC NAACP — proving racial gerrymander when state claims partisan motive is very difficult.

II. FEDERAL EXECUTIVE POWER

• Youngstown Framework — Justice Jackson's Three Zones KEY

  • Zone 1 (Maximum): President acts with congressional authorization. Presumptively constitutional.
  • Zone 2 (Twilight Zone): Congressional silence. Constitutionality turns on imperatives of events.
  • Zone 3 (Lowest Ebb): President acts against Congress's express or implied will. Presumptively unconstitutional.

  Youngstown Sheet & Tube v. Sawyer — Truman's steel-mill seizure = Zone 3 (Congress had rejected seizure authority). No inherent executive lawmaking authority.

  EXAM TIP: Always identify the zone first — it determines the presumption.
• Presidential Power in Foreign Affairs

  "Sole organ": Curtiss-Wright Export Corp. — President has broader inherent authority in foreign vs. domestic matters; broader delegation permissible.

  Dames & Moore v. Regan — President may settle claims with foreign nations when supported by congressional authorization or longstanding practice; congressional acquiescence over time can support executive action.

  Treaties vs. Executive Agreements:

  • Treaties: 2/3 Senate ratification; prevail over state law; last-in-time vs. federal statutes; must comply with Constitution.
  • Executive Agreements: no Senate ratification; prevail over state law; never over federal law or Constitution.

  Treaty termination — Goldwater v. Carter (political question).

• War Powers & Executive Detention PARTIALLY TESTED

  Hamdi v. Rumsfeld (2004) — US citizen captured in Afghanistan, detained as "enemy combatant," no hearing, no attorney. Tested: Due process IS required (8-1); Mathews v. Eldridge balancing is the framework. NOT TESTED: Actually doing the Mathews balancing.

  Boumediene v. Bush (2008, 5-4) — Congress passed Military Commissions Act to strip habeas jurisdiction for Guantanamo non-citizen detainees. Held: MCA unconstitutionally suspended habeas without authorization under the Suspension Clause (Art. I §9 cl. 2). "Art. I §9 cl. 2 has full effect at Guantanamo Bay." Congress may provide adequate substitute procedures; CSRT procedures were NOT adequate.

  Threshold in war-powers cases: always ask justiciability first; then identify basis for executive authority (commander in chief; statutory grants; vesting clause).

  Modern context: Alien Enemies Act; IEEPA; deportation detention; AEA proclamations and judicial challenges.

• Executive Power over Immigration

  Immigration is an exclusively federal power — plenary power doctrine. Strong judicial deference to political branches.

  • Chy Lung v. Freeman (1875) — California state immigration law invalid; immigration = federal power.
  • Chae Chan Ping v. United States (1889) — "Chinese Exclusion Case." Plenary federal power to exclude non-citizens; congressional determination "conclusive upon the judiciary."
  • United States v. Ju Toy (1905) — Congress may make immigration officials' factual determinations final; strong deference.
  • Trump v. Hawaii (2018, 5-4) — Travel ban upheld under INA §212(f); President has broad authority to restrict entry when he finds it detrimental to national interests. Repudiated Korematsu by name.

  How does Executive gain immigration power? Congress delegates through statutory grants (e.g., Immigration Act of 1907 → EO 589 re: Japanese passports).

• Presidential Immunity — Trump v. United States (2024) KEY

  • Absolute immunity — core constitutional acts.
  • Presumptive immunity — outer-perimeter official acts; must show overcoming presumption won't intrude on executive authority.
  • No immunity — purely private/unofficial acts.

  Hard question: line between official and unofficial. Court must classify each alleged act.

• Line-Item Veto

  Clinton v. City of New York (1998, 6-3) — unconstitutional. Violates Presentment Clause and bicameralism.

  Congress can increase executive power (implicit in Youngstown) but cannot grant the line-item veto.

• The Administrative State, Nondelegation & Major Questions Doctrine

  Administrative agencies (within Executive Branch) exercise legislative, executive, AND judicial functions. Expanded dramatically during Great Depression.

  Nondelegation Doctrine: Schechter Poultry (1935); Panama Refining (1935) — only times a federal law struck down for nondelegation. In 90 years since, not one more law struck down. Gundy v. United States (2019, 4-1-3) — possible comeback.

  Major Questions Doctrine (the "scalpel"):

  • West Virginia v. EPA (2022) — need explicit statutory authority for major questions.
  • Biden v. Nebraska (2023) — student loans.
  • Learning Resources, Inc. v. Trump (2026) — tariffs.
• Legislative Veto

  INS v. Chadha (1983) — unconstitutional. Two problems: (1) Bicameralism; (2) Presentment. Once Congress delegates, legislative veto operates as lawmaking and must follow Art. I procedures.

• Appointment Power NOT TESTED

  Art. II §2 — Presidential nomination + Senate confirmation for principal officers; inferior officers may be vested in President alone, Courts of Law, or Heads of Departments. Professor confirmed: "placeholder — not testing." Know basics as context for removal questions.

• Removal Power KEY

  Limits NOT OK:

  • Myers v. United States (1926) — can't require Senate consent to remove executive officer.
  • Bowsher v. Synar (1986) — removal power can't rest with Congress.
  • Free Enterprise Fund v. PCAOB (2010) — double-layer for-cause protection unconstitutional.
  • Seila Law v. CFPB (2020) — single-director independent agency with for-cause protection unconstitutional.

  Limits OK (for now):

  • Humphrey's Executor (1935) — multi-member commissions (FTC, SEC, NLRB) — OK.
  • Wiener v. United States (1958) — adjudicative functions.
  • Morrison v. Olson (1988) — independent counsel.

  Open question: Will Humphrey's Executor be overruled? Spring 2025 Q5 model answer applied Dobbs stare decisis factors to this question.

III. FEDERAL LEGISLATIVE POWER

• Necessary & Proper Clause — McCulloch v. Maryland

  "Let the end be legitimate… and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Congress may choose any means not prohibited by the Constitution. States cannot tax federal institutions.

• Commerce Clause — Three-Category Framework KEY

  Congress can regulate: (1) channels; (2) instrumentalities; (3) activities that in the aggregate substantially affect interstate commerce. Exam questions always live in Category 3.

  Modern qualifiers (Category 3):

  • Must be an activity (not inactivity) — NFIB v. Sebelius.
  • Must be economic activity (generally) — Morrison.
  • Must substantially affect — not too attenuated — Lopez.
  • Aggregation applies to economic activity — Wickard; Raich.
  • Scalia exception (Lopez concurrence): non-economic local activity OK if necessary part of broader regulatory scheme.

  Key cases: Gibbons v. Ogden (1824); Wickard v. Filburn; Heart of Atlanta Motel; Katzenbach v. McClung (Ollie's BBQ); Perez v. United States; Lopez (1995); Morrison (2000); Gonzales v. Raich (2005); NFIB v. Sebelius (2012).

  EXAM TIP — Attack outline: (a) Identify the activity. If no activity → stop (NFIB). (b) Is it economic? If non-economic → likely stop (Lopez/Morrison). (c) Does it substantially affect, including aggregation?
• Why Civil Rights Act of 1964 Used Commerce Clause

  The Civil Rights Cases (1883) — 14th Amendment §5 reaches only government conduct, not private. So Congress used Commerce Clause to reach private discrimination in public accommodations.

• Taxing & Spending Power KEY

  Art. I §8 cl. 1. Cases: United States v. Butler (1936); Steward Machine Co. v. Davis (1937); Helvering v. Davis (1937).

  South Dakota v. Dole (1987) — four-part test for conditional spending:

  1. In pursuit of general welfare.
  2. Conditions unambiguous.
  3. Conditions relate to federal interest in the funded program.
  4. Must not violate other constitutional provisions (10th Amendment anti-commandeering / anti-coercion).

  Dole — 5% of highway funds conditioned on drinking age of 21 = OK (not coercive).

  NFIB v. Sebelius (2012):

  • Individual mandate: NOT valid under Commerce Clause (can't regulate inactivity). IS a valid tax (5-4 Roberts joining liberals). "Every reasonable construction must be resorted to in order to save a statute from unconstitutionality."
  • Medicaid expansion: "gun to the head" — loss of ALL existing Medicaid = unconstitutionally coercive (7-2). States could expand + get new funds OR keep existing without expanding.
• 10th Amendment & Anti-Commandeering Principle KEY

  • New York v. United States (1992) — can't commandeer state legislatures (radioactive waste take-title).
  • Printz v. United States (1997) — can't commandeer state executive officials (Brady Act background checks).
  • Murphy v. NCAA — anti-commandeering; federal law compelling state legislation struck down (sports gambling).
  • Reno v. Condon — NOT commandeering; prohibiting harmful commercial state activity (DMV data sales) is permissible.
  • Garcia v. San Antonio MTA — generally applicable Commerce Clause regulations may apply to states; overruled National League of Cities v. Usery.

  EXAM TIP: Congress can prohibit state commercial activity and use Dole-compliant conditions, but CANNOT compel states to legislate or enforce federal law.
• Section 5 of 14th Amendment — Congressional Enforcement Power

  City of Boerne v. Flores — §5 power is remedial, not substantive. Test: congruence and proportionality between constitutional injury and legislative remedy.

  15th Amendment: Shelby County v. Holder (2013, 5-4) — VRA §4 reauthorization unconstitutional. Watching Louisiana v. Callais.

IV. FEDERALISM — STATE REGULATORY POWER

• Federal Preemption (Supremacy Clause, Art. VI) KEY

  Attack outline: (1) Authority for state to act (typically police powers). (2) Conflict with federal law?

  Express: Lorillard (yes); Riegel (yes); Whiting (no).

  Implied — Conflict: Florida Lime & Avocado; Wyeth v. Levine (no); PLIVA (yes); PG&E (no).

  Implied — Obstacle: PG&E (no); Arizona v. United States §§5(C), 6 (yes).

  Implied — Field: Hines v. Davidowitz (yes); Arizona v. United States §3 (yes); Gade (yes); PG&E (no).

  Foreign Policy Preemption: Zschernig; Garamendi.

• Dormant (Negative) Commerce Clause KEY

  Inferred limit on state/local laws burdening interstate commerce. Congress acts → Commerce Clause. State acts → DCC.

  Track 1 — Discriminatory (virtually per se invalid): Legitimate local purpose AND no less discriminatory alternative. City of Philadelphia v. New Jersey; Maine v. Taylor (passed); West Lynn Creamery; Hunt v. WA Apple; Brown-Forman/Healy. Non-protectionist found: Exxon; Clover Leaf Creamery; National Pork Producers v. Ross (2023).

  Track 2 — Pike Balancing (neutral laws): Burden clearly excessive vs. benefits. Pike v. Bruce Church.

  Exceptions: Congressional Authorization (Western & Southern Life Ins.); Market Participant (Reeves v. Stake).

  Note: DCC "strict scrutiny" requires only legitimate purpose — not compelling interest as in EPC strict scrutiny.

V. INCORPORATION DOCTRINE

• Bill of Rights Incorporation Through 14th Amendment

  Barron v. Baltimore — Bill of Rights originally applied only to federal government. Slaughter-House Cases (1872) — foreclosed Privileges & Immunities path. The Due Process Clause became the pathway for selective incorporation.

  Test: "implicit in the concept of ordered liberty" (Palko v. Connecticut).

  2nd Amendment incorporated in 2010 (McDonald v. Chicago); 8th Amendment excessive fines in 2019.

  NOT YET INCORPORATED: 3rd Amendment; 5th Amendment grand jury indictment; 7th Amendment civil jury trial.

  NOT TESTED: differences between federal and state applications (e.g., juror unanimity, jury size).

VI. STATE ACTION DOCTRINE

• State Action Doctrine KEY

  Rule: Constitutional rights generally apply only against state actors. Historic basis: The Civil Rights Cases (1883) — §5 reaches government, not private conduct.

  Exceptions:

  • Public Function Exception — traditionally and exclusively reserved-to-state functions. Marsh v. Alabama (company town = state actor); Jackson v. Metropolitan Edison (utility = NOT public function).
  • Entanglement Exception — sufficiently close nexus:
    • Shelley v. Kraemer — judicial enforcement of racial covenants.
    • Burton v. Wilmington Parking Authority — symbiotic relationship (coffee shop in government building).
    • Moose Lodge v. Irvis — state liquor license alone NOT enough.
    • Edmonson v. Leesville Concrete — Batson applies in civil litigation (peremptory challenges by private party = state action).

  NOT TESTED: government-created corporations; Breyer's "entwinement."

VII. EQUAL PROTECTION — ANALYTICAL FRAMEWORK

• The Three-Step Framework KEY

  14th Amendment §1; applies to federal government via reverse incorporation (Bolling v. Sharpe, 1954).

  STEP 1 — Classification:

  • Facial — explicit on face.
  • Facially neutral → classification found ONLY if: (1) discriminatory impact on suspect/quasi-suspect class AND (2) discriminatory purpose.

  STEP 2 — Level of Scrutiny:

  • Strict — race, national origin, religion, alienage [or fundamental right]. Government bears burden.
  • Intermediate — gender, nonmarital children. Government bears burden.
  • Rational basis — everything else (age, disability, wealth, sexual orientation, economic regulation). Challenger bears burden.

  STEP 3 — Apply the Test:

  • Strict: compelling purpose + narrowly tailored (necessary / no less discriminatory alternative). Almost always fatal.
  • Intermediate: important purpose + substantially related means. "Exceedingly persuasive justification" for sex.
  • Rational basis: any conceivable legitimate purpose + rationally related. Almost always upheld.

  EXAM TIP: Always work through all three steps explicitly, even if the answer seems obvious. Classification drives everything.
• United States v. Carolene Products — Footnote 4 & Theoretical Basis for Scrutiny

  Important not for its specific holding (filled milk / rational basis) but for Footnote 4 (Justice Stone): "…prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."

  This is the theoretical kernel for why we have heightened scrutiny — courts step in when democratic processes fail politically powerless minorities. This also connects to rational basis with bite — when a group is politically powerless and the court wants to take a harder look without formally elevating the classification.

• Rational Basis — "Reasonable Relationship" Subcategories KEY

  Tolerance for underinclusiveness: Railway Express Agency v. New York (1949) — advertising ban on vehicles except for own-business ads; city may attack a problem piecemeal. Underinclusive = OK under rational basis.

  Tolerance for overinclusiveness: New York City Transit Authority v. Beazer — blanket exclusion of methadone users from transit jobs; government may paint with a broad brush. Overinclusive = OK under rational basis.

  "Arbitrary and Unreasonable" / Rational Basis with BITE:

  • U.S. Department of Agriculture v. Moreno (1973, 7-2) — Food Stamp Act excluded households with unrelated members. Law seemed motivated by animus against "hippies" — struck down under rational basis.
  • City of Cleburne, Texas v. Cleburne Living Center (1985, 9-0) — special permit required for group home for intellectually disabled but not for other multi-person uses. Struck down. Court refused to recognize disability as quasi-suspect class but found law failed rational basis (animus/fear).
  • Romer v. Evans (1996) — Colorado Amendment 2 struck down (animus = not a legitimate purpose). "Rational basis with BITE."

  Other rational-basis classifications (not suspect/quasi-suspect):

  • Age — Massachusetts Bd. of Retirement v. Murgia (1976) — mandatory retirement; rational basis only.
  • Disability — Cleburne — rational basis (not quasi-suspect).
  • Wealth — San Antonio ISD v. Rodriguez (1973) — school funding disparities; wealth not a suspect class; education not a fundamental right under federal Constitution.
  • Sexual orientation — rational basis (at constitutional level as of course materials); see Romer, Lawrence, Windsor, Obergefell.
• Proving Discriminatory Purpose KEY

  • Washington v. Davis (1976) — disparate impact alone NOT sufficient; must prove discriminatory purpose (Test 21 / DC police). Compare Griggs v. Duke Power (Title VII — disparate impact IS enough for employment discrimination statute, but that's statutory not constitutional).
  • Personnel Administrator of Massachusetts v. Feeney (1979) — veterans' preference (98% male); discriminatory purpose requires "because of," not merely "in spite of," adverse effects.
  • Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) — factors for proving discriminatory purpose: (1) disproportionate impact; (2) historical background; (3) sequence of events; (4) procedural departures; (5) legislative/administrative history.
  • Yick Wo v. Hopkins (1886); Gomillion v. Lightfoot — administration so obviously discriminatory that purpose was inferred without direct evidence.
  • Palmer v. Thompson (1970, 5-4) — Jackson, MS closed all public pools rather than integrate them. No discriminatory effect because applied equally to all races. Court held: facially neutral law applied equally = no EPC violation even if bad motives. But Douglas dissented — may a state close its schools to avoid integration?
  • McCleskey v. Kemp (1987, 5-4) — statistical evidence (Baldus study) showing Black defendants whose victims were white were 4.3× more likely to receive death sentence. Court held: statistical evidence of systemic racial disparities does NOT prove discriminatory intent in any individual case. Must show discriminatory intent specific to the defendant's case. Contextual note: Justice Powell later expressed regret.

  15th Amendment also requires discriminatory purpose: City of Mobile v. Bolden (1980) — at-large elections not unconstitutional merely for producing racially disparate outcomes. Compare Rogers v. Lodge (1982) — same facts but with developed factual record = different outcome. Congress responded with 1982 Amendments to VRA.

VIII. EQUAL PROTECTION — SPECIFIC CLASSIFICATIONS

• Slavery, the Constitution & Race — Historical Foundation

  Slavery embedded in Constitution (without naming it): Art. I §2 (3/5 clause); Art. I §9 cl. 1 (importation); Art. IV §2 (fugitive slave clause); Art. V (protected Art. I §9 from amendment).

  Dred Scott v. Sandford (1857) — Chief Justice Taney: persons of African descent cannot be citizens and have no rights the white man is bound to respect. Helped precipitate the Civil War; repudiated by 14th Amendment.

  Plessy v. Ferguson (1896) — "separate but equal" upheld. Overruled by Brown.

  Korematsu v. United States (1944) — Japanese American internment upheld applying strict scrutiny; repudiated by name in Trump v. Hawaii (2018).

  Thurgood Marshall and the NAACP Legal Defense Fund — the litigation strategy dismantling Plessy step by step leading to Brown.

  Brown v. Board of Education (1954, 9-0) — separate educational facilities inherently unequal.

  Loving v. Virginia (1967) — anti-miscegenation law struck down; EPC + substantive DP right to marry.

• Affirmative Action / Race-Based Remedies KEY

  All racial classifications trigger strict scrutiny — including those benefiting minorities.

  Remedies for proven past discrimination: City of Richmond v. Croson — 30% MBE set-aside struck; remedying societal discrimination NOT compelling; must show specific past discrimination by the entity. Fullilove v. Klutznick — federal set-aside upheld with prior discrimination evidence. US v. Paradise — 50% set-aside upheld as remedy for proven Alabama State Police discrimination.

  University admissions: Bakke (1978) — quota struck; race as one factor allowed. Grutter v. Bollinger (2003) — diversity = compelling interest. Gratz v. Bollinger — point system struck. Fisher I & II — strict scrutiny, no deference. Parents Involved — Roberts: "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

  Students for Fair Admissions v. Harvard/UNC (2023, 6-2/6-3):

  • Failed strict scrutiny — no measurable objectives; race used as negative; stereotyping; no end points.
  • Did NOT overrule diversity-as-compelling-interest aspect of Grutter/Fisher.
  • Race may still be used to remedy that institution's own past racial discrimination.
  • Societal discrimination remedy ≠ compelling interest.
  • Left open: military service academies.
• Peremptory Challenges & Batson v. Kentucky

  History: Strauder v. West Virginia (1880) — direct jury exclusion unconstitutional. Williams v. Mississippi (1898) — voter registration proxy; court closed its eyes. Swain v. Alabama (1965) — made challenges very hard.

  Batson v. Kentucky (1986) — three-step burden-shifting:

  1. Prima facie showing strike based on race.
  2. Burden shifts; striker provides race-neutral reason.
  3. Challenger must prove pretext.

  Subsequent cases: Hernandez v. New York (Spanish-speaking proxy = race-neutral); Purkett v. Elem ("legitimate reason" need not be plausible, just not deny EP); Flowers v. Mississippi (41 of 42 Black jurors struck over 6 trials = Batson violation); Edmonson v. Leesville (civil litigation); J.E.B. v. Alabama (gender too); Pitchford v. Cain (oral argument March 2026).

• School Desegregation

  • Brown II (1955) — desegregate "with all deliberate speed."
  • Swann v. Charlotte-Mecklenburg — busing, racial quotas, redrawn attendance zones permissible to remedy past segregation.
  • Alexander v. SC NAACP — proving racial gerrymander requires showing race was the predominant factor, not just one consideration.
• Alienage

  Generally strict scrutiny. Exception: political function exception — rational basis applies to exclusion from governmental/political roles.

  Plyler v. Doe (1982, 5-4) — TX law denying public education to undocumented children struck. Intermediate-ish scrutiny (not a fundamental right or suspect class, but: children not responsible for their status; education uniquely important; Brennan used heightened scrutiny). Texas's textualist argument about "subject to the jurisdiction" was rejected. Note: same textualist argument resurfaced in birthright citizenship litigation.

• Gender / Sex (Intermediate Scrutiny)

  • Craig v. Boren (1976) — established intermediate scrutiny for gender.
  • United States v. Virginia (VMI, 1996) — "exceedingly persuasive justification" required; also remedial programs for women.
  • Michael M. v. Superior Court — CA statutory rape law criminalizes male-only; upheld (preventing illegitimate teenage pregnancies = important interest; gender-neutral statute would be less effective).
  • Rostker v. Goldberg — male-only draft registration upheld.
  • Nguyen v. INS — gender-based citizenship rule for children born abroad to unmarried parents with one US citizen parent; upheld under intermediate scrutiny (father must affirmatively establish paternity; biological differences as to child's relationship with parent).
  • Geduldig v. Aiello — pregnancy classification ≠ sex discrimination; the line is pregnant vs. non-pregnant persons. Critical: this is why women failed to use EPC to challenge Dobbs.
  • Bostock v. Clayton County — Title VII includes sexual orientation/gender identity (statutory, not constitutional).
  • United States v. Skrmetti (2025, 6-3) — TN ban on puberty blockers/hormones for minors upheld; Court found no sex classification requiring intermediate scrutiny (TN's law distinguishes between medical uses, not between sexes). Barrett concurrence: transgender status not a suspect class under Carolene Products test.

  Nonmarital children: Laws denying benefits to ALL nonmarital children always struck; case-by-case for partial denials.

• Sexual Orientation (Currently Rational Basis)

  • Romer v. Evans (1996) — Colorado Amendment 2 struck. "Rational basis with BITE" — animus ≠ legitimate purpose.
  • Lawrence v. Texas (2003) — sodomy law struck; liberty + animus; overruled Bowers v. Hardwick.
  • United States v. Windsor — federal DOMA struck (liberty + EPC).
  • Obergefell v. Hodges (2015, 5-4) — same-sex marriage; fundamental right to marry extended (DP + EPC). Kennedy didn't follow the framework strictly.

  Pending: Cert granted — CO law forbidding schools (including charter and religious schools) receiving public funding from discriminating in admissions based on LGBTQ status.

• Voting Rights / Gerrymandering / 15th Amendment

  • 15th Amendment (1870) — right to vote not denied on account of race, color, or previous condition of servitude.
  • 1965 Voting Rights Act — §5 preclearance.
  • Shelby County v. Holder (2013, 5-4) — VRA §4 reauthorization unconstitutional; effectively gutted §5. Does not say Congress has no 15th Amendment power — just requires a factual basis for coverage formula.
  • Louisiana v. Callais — pending; whether Court will continue to cut back VRA.
  • City of Mobile v. Bolden (1980) — at-large elections not unconstitutional from racial disparate impact alone; must prove discriminatory purpose in establishing/maintaining system.
  • Rogers v. Lodge (1982) — same structure as Mobile but with factual record showing discriminatory purpose; different outcome.
  • Congress responded to Mobile with 1982 Amendments to VRA (adding "results" test).

IX. FUNDAMENTAL RIGHTS (SUBSTANTIVE DUE PROCESS)

• Fundamental Rights Framework KEY

  Four-step framework:

  1. Is there a fundamental right?
  2. Is it infringed? (Strict scrutiny only if direct & substantial interference.)
  3. Sufficient government justification?
  4. Means sufficiently related?

  Standard: Right must be "deeply rooted in this Nation's history and tradition" AND "implicit in the concept of ordered liberty" — Washington v. Glucksberg.

  Level of abstraction matters — framing the right broadly vs. narrowly can change outcomes. This is the "game" litigants play.

  "Reasoned judgment" (Casey) — courts must exercise reason; not free to invalidate disagreed-with policies, but cannot shrink from duties.

  EXAM TIP — Recognized fundamental rights for this class: marriage, procreation, contraception/privacy, sexual autonomy, refusal of medical treatment, interstate travel (not tested). NOT fundamental: abortion (post-Dobbs), physician-assisted suicide, education (Rodriguez).
• Right to Marry

  • Loving v. Virginia (1967) — fundamental + EPC.
  • Zablocki v. Redhail — child-support prerequisite struck.
  • Boddie v. Connecticut — divorce filing fee; direct and substantial infringement on right to marry for indigent persons.
  • Obergefell v. Hodges (2015) — extended to same-sex couples.
• Right to Procreate

  • Buck v. Bell (1927) — eugenic sterilization upheld (Holmes: "Three generations of imbeciles are enough"). Largely repudiated but never formally overruled.
  • Skinner v. Oklahoma (1942) — OK Habitual Criminal Sterilization Act struck. Right to procreate = fundamental; strict scrutiny.
• Right to Privacy / Contraception

  • Griswold v. Connecticut (1965) — marital contraception; "penumbras and emanations."
  • Eisenstadt v. Baird (1972) — extended to unmarried persons.
• Abortion — Roe to Casey to Dobbs KEY

  Roe v. Wade (1973, 7-2) — fundamental right to abortion; trimester framework based on right to privacy.

  Planned Parenthood v. Casey (1992, 5-4) — reaffirmed core; replaced trimester with undue burden test: substantial obstacle in path of woman seeking pre-viability abortion. "Liberty finds no refuge in a jurisprudence of doubt." Stare decisis analysis: workability, reliance, doctrinal changes, factual changes.

  Pre-Dobbs regulations: Whole Women's Health v. Hellerstedt; Gonzales v. Carhart (partial-birth); Bellotti v. Baird (parental notice + judicial bypass).

  Dobbs v. Jackson Women's Health Organization (2022, 5-1-3):

  • Overruled Roe and Casey. No textual basis; not deeply rooted (Glucksberg). Privacy not absolute; competing interests.
  • EPC argument fails because of Geduldig (pregnant vs. non-pregnant).
  • Post-Dobbs: rational basis applies; states regulate.
  • Roberts says Griswold/Eisenstadt/Lawrence/Obergefell untouched. Thomas concurrence: revisit them all.

  Dobbs stare decisis factors: (1) nature of error; (2) quality of reasoning; (3) workability; (4) effect on other law; (5) reliance interests.

• Sexual Autonomy

  • Bowers v. Hardwick (1986) — GA sodomy law upheld (overruled).
  • Lawrence v. Texas (2003) — TX sodomy law struck; liberty + animus; overruled Bowers.
• Right to Refuse Medical Treatment / Right to Die

  • Jacobson v. Massachusetts (1905) — compulsory vaccination upheld; "paramount necessity."
  • Washington v. Harper (1990) — prisoners' liberty interest in refusing antipsychotics; reasonableness standard given prison context; required procedural safeguards.
  • Cruzan v. Director, Missouri DOH (1990) — right to refuse exists; state may require clear and convincing evidence for incompetent patients.
  • Washington v. Glucksberg (1997, unanimous w/ concurrences) — NO fundamental right to physician-assisted suicide; established the "deeply rooted" test for fundamental rights.
• Procedural Due Process — Mathews v. Eldridge Balancing PARTIALLY TESTED

  Framework = tested. Actually doing the balancing = not tested (per End of Semester Review notes on Hamdi).

  Three-factor balancing:

  1. Private interest at stake.
  2. Risk of erroneous deprivation + value of additional safeguards.
  3. Government interest (including administrative burden).

  Applied in Hamdi v. Rumsfeld; foundation for involuntary commitment due process.

X. CROSS-CUTTING TOPICS

• Stare Decisis

  Constitutional cases require "special justification" or "strong grounds" to overrule. 141 reversals since 1851; 7 since 1976.

  Dobbs majority factors: nature of error, quality of reasoning, workability, effect on other law, reliance interests.

  Casey factors: doctrinal changes; factual changes; workability; reliance.

  Recently overruled: Roe/Casey; Chevron (not covered); Korematsu (repudiated in Trump v. Hawaii).

  EXAM TIP: Spring 2025 Q5 explicitly tested stare decisis applied to Humphrey's Executor.
• Birthright Citizenship & Current Executive Action

  14th Amendment §1: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof…" Texas made a textualist argument about "subject to the jurisdiction" in Plyler — similar argument has resurfaced in birthright citizenship EO challenges.

  Spring 2025 Q6 model answer addressed legal permanent resident declared "alien enemy" under Alien Enemies Act — due process question. AEA and IEEPA challenges are ongoing.

• Big-Picture Themes

  • Three purposes of Constitution: (1) horizontal SOP — establishes national government with 3 branches; (2) vertical SOP — federal/state relationship; (3) limits government by protecting individual rights.
  • Federalism: "A system in which there is sensitivity to the legitimate interests of both State and National Government." (Younger v. Harris).
  • Law and power: Does law restrain power, or legitimate whatever those in power choose to do? (Or both? Or something in between?)
  • Role of courts: Marbury — "say what the law is." But judicial review is not limitless — justiciability, political question, congressional regulation of court jurisdiction.