Quotes!
“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance. . . Various guarantees create
zones of privacy. . . The Fourth and Fifth Amendments were described in Boyd v. United
States, 116 U.S. 616 (1886), as protection against all governmental invasions ‘of the
sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio,
367 U.S. 643 (1961), to the Fourth Amendment as creating a ‘right to privacy, no less
important than any other right carefully and particularly reserved to the people.’ . . . These
cases bear witness that the right of privacy which presses for recognition here is a
legitimate one.”
Griswold v. Connecticut
What case originally established what rights fall under privileges or immunities? What case first limited these rights in the 14th Amendment P&I?
Corfield
Slaughterhouse
What power was the Affordable Care Act upheld by? What was the Supreme Court's reasoning for this decision?
The Taxing/Spending Power
The ACA was not supported by the commerce power because the government can't regulate inactivity or compel participation.
The Taxing Power gave people a chance to opt out of healthcare, as the tax was not coercive or a penalty
What outlines the categories of when strict scrutiny is required?
What are the categories of when strict scrutiny should be applied?
Carolene Products Footnote Four
When legislation interferes with fundamental rights; when legislation restricts political processes (the right to vote), and when certain insular and discrete minorities are impacted
What test did the Supreme Court introduce in Planned Parenthood v. Casey?
Undue Burden Test
"Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.
NFIB v. Sebelius I
What rights did Howard say the Privileges and Immunities Clause should encompass in his speech?
The fundamental rights outlined in Corfield and the Bill of Rights
What case established that the Commerce power can regulate commerce, but not manufacturing? What case overturned this distinction?
Hammer v. Dagenhart
U.S. v. Darby
What test would you use to analyze whether a public school admitting a certain amount of Asian students is constitutional?
What test would you use if the school only admitted men?
What test would you use if the school had a 5% plan that led to a mass increase in asian men's acceptance?
Strict scrutiny
Intermediate scrutiny
What two cases distinguished between de jure and de facto segregation?
Millikan v. Bradley and Missouri v. Jenkins
“The inquiry is, what are the privileges and immunities of citizens in the several States?
We feel no hesitation in confining these expressions to those privileges and immunities
which are in their nature fundamental . . . which have at all times been enjoyed by the
citizens of the several States which compose this Union from the time of their becoming
free, independent, and sovereign. . . . They may . . . be all comprehended under the
following general heads: protection by the Government, the enjoyment of life and liberty,
with the right to acquire and possess property of every kind, and to pursue and obtain
happiness and safety, subject nevertheless to such restraints as the Government may
justly prescribe for the general good of the whole. . . [these] may be mentioned as some
of the particular privileges and immunities of citizens which are clearly embraced by the
general description of privileges deemed to be fundamental.”
Corfield
What case overruled the Civil Rights Act of 1875?
The Civil Rights Cases
Holmes delivers two major dissents. What cases are they in, and what does he say?
Lochner: Freedom of contract is not a substantive due process right
Coppage: Freedom of contract is not real liberty, as there is unequal bargaining power between employee and employer
Name three forms/types of affirmative action that are still viable after SFFA v. Harvard
Affirmative action plans that are not race-based
5% plan, lottery, first-generation students
Name three major areas that fall under the state police power
Education, family law, violent crime
The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. As the Harvard plan described by Justice Powell
recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” [Bakke]. “[Some] attention to numbers,” without more, does not transform a flexible admissions system into a rigid quota."
Grutter v. Bollinger
What two cases involved the Enforcement Act of 1870? How was the statute involved?
U.S. v. Hall and U.S. v Cruikshank.
Hall allowed the federal government to step in when states failed to enforce the 14th Amendment against private actors
Cruikshank ruled that the 14th Amendment cannot enforce the bill of rights against private actors
What concurrence discussed degrees between direct vs. indirect effects on commerce? Which case cemented these degrees of effects into law?
Cardoza concurrence in Schechter Poultry
NLRB v. Jones and Laughlin
What are some factors to look at in a disparate impact case when trying to prove a discriminatory intent?
History of discriminatory government action in this area
Departure from standard operating procedures
Evidence of discrimination in the legislative/administrative record
Name two cases that involved the supremacy clause
Prigg v. Pennsylvania, Gibbons v. Ogden, Marbury v. Madison, Mcculloch v. Maryland
“[A] privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. . . . [these rights] are dependent upon citizenship of the United States, and not citizenship of a State.”
Slaughterhouse
What rights does Plessy afford to black citizens (ie civil/economic, political, social)? What does the dissent argue?
Plessy rules that black people are guaranteed political and civil rights, but not social rights.
The Harlan dissent argues that segregation creates castes and a badge of inferiority, which conflicts with the colorblind constitution
According to Bailey v. Drexel Furniture and NFIB v. Sebelius II, what makes a tax coercive/a penalty?
1) The tax requires knowledge that your behavior will be taxed
2) Tax is handed down from a department other than the treasury
3) The tax is disproportionately severe/costly than the action you are being penalized for
What cases analyze what is/isn't a compelling government interest to justify affirmative action? What do they say?
Bakke, Parents Involved: atoning for past discrimination is not a compelling interest
Bakke and Grutter: Diversity is a compelling interest
SFFA: Diversity is not a compelling interest when it is amorphous and unmeasurable
Name a case where a substantive due process right was established. Name a case where that right was overturned.
Lochner: Freedom of Contract (overturned by West Coast Hotel)
Roe: Privacy/abortion (overturned by Dobbs)