Constitutional Law

Constitutional Law Jody Blanke Professor of Computer Information Systems and Law

The Constitution • Separation of Powers • Art. 1 – The Legislative Branch • Art. 2 – The Executive Branch • Art. 3 – The Judicial Branch • Checks and Balances

The Enumerated Powers Clause • Art. 1 Sec. 8 of the Constitution • Authorizes Congress • to collect taxes • to coin money • to establish a postal system • to raise and support Armies • to provide and maintain a Navy • to regulate interstate commerce • to protect the writings of authors and the discoveries of inventors

Preemption • If Congress is authorized to make law, and does so with the intent that it be the only law, that law will preempt any state law

Figure A Ex. FAA Ex. Patent Act Figure B Ex. Cipollone (1993) Ex. Silkwood (1984) Ex. Federal Anti-Spam Act Preemption

1st and 14th Amendments • 1st Amendment • “Congress shall make no law …” • 14th Amendment • “No State shall make or enforce any law which shall …” • Most protections/restrictions apply to both federal and state governments

State Action • Public vs. private • The Fourteenth Amendment prohibits states from certain discriminatory behavior • Citadel case (1995) • school can have a males-only admissions policy as long as it receives no public funding • Augusta National Golf Club • Moose Lodge v. Irvis (1972) • Issuance of liquor license is not state action

Commerce Clause • The interpretation by the Supreme Court of the scope of the commerce clause has changed dramatically over the years • Early on, the interpretation was fairly broad • Gibbons v. Ogden (1824) • Congress, rather than New York, had the authority to regulate steamboats on the Hudson River

Commerce Clause • With the advent of the Industrial Revolution and Big Business, the interpretation narrowed considerably • Hammer v. Dagenhart (1918) • The Court refused to let Congress regulate with “social legislation,” e.g., child labor laws

Commerce Clause • New Deal legislation pushed by F.D.R. and passed by the Congress was struck down by the Supreme Court in several 5-4 decisions • Schechter Poultry (1935) • Congress lacked the power to regulate intrastate poultry processing activity • The “Court Packing” Incident • Why not have 13 Supreme Court justices?

Commerce Clause • Supreme Court finally permits Congress to regulate intrastate activity if it effects interstate commerce (in 5-4 decisions) • Jones of Laughlin Steel Corp. (1937) • Wickard v. Filburn (1942) • intrastate activity may have a cumulative effect on interstate commerce

Commerce Clause • Supreme Court upheld the constitutionality of the Civil Rights Act of 1964 on the basis of interstate activity • Heart of Atlanta Motel v. U.S. (1964) • motel catered to interstate travelers • Katzenbach v. McClung (1964) • restaurant served food that was part of interstate commerce

Commerce Clause • Supreme Court finally draws an outer boundary to interstate activity • U.S. v. Lopez (1995) • Gun-Free School Zone Act • U.S. v. Morrison (2000) • Violence Against Women Act

Dormant Commerce Clause • State laws cannot unduly burden interstate commerce • Georgia would not be able to require all restaurants in the state to serve only dairy products from Georgia dairy farms • Maine v. Taylor (1986) • But, Maine was permitted to ban the importation of live bait fish

Freedom of Speech • Political speech • great deal of protection, but not absolute • ex. dangerous speech • ex. fighting words • ex. defamation • ex. obscenity • Commercial Speech • can be regulated for aesthetics • Cincinnati v. Discovery Network (1993)

Freedom of Religion • Free Exercise Clause • great deal of protection, but not absolute • ex. human sacrifice • Establishment Clause • separation of church and state • school prayer • “In God We Trust” • The Pledge of Allegiance • The Ten Commandments

Eminent Domain • Kelo v. New London (2005) • 90-acre development plan • 115 privately owned properties • Poletown v. Detroit (1981) • GM wanted to keep 6,000 jobs in Detroit • Poletown was 465 acres, had 3,000 residents, 16 churches, 100+ businesses • Chattanooga, Baltimore

Equal Protection • Can a state ever pass a law that treats black people differently than white people? Rational Basis Test Strict Scrutiny Test Intermediate Scrutiny

Equal Protection • Rational Basis Test • applies if no suspect class or fundamental liberty interest is involved • i.e., a good reason • State v. Ri-Mel (1987) • Minnesota required all for-profit health clubs to post a bond – no such requirement for not-for-profit health clubs

Equal Protection • Strict Scrutiny Test • applies if a suspect class or fundamental liberty interest is involved, e.g., race or religion • there must be a “compelling state interest” • i.e., a very, very, very good reason • Affirmative action • Grutter v. Bollinger (2003) – U. Mich. Law School • Gratz v. Bollinger (2003) - undergraduate

Equal Protection • Intermediate Level Scrutiny • applies to protected class, i.e., not quite a suspect class, e.g., gender or age • classification must be “reasonably related” to legitimate government purpose • i.e., a very, very good reason • Craig v. Boren (1976) • Oklahoma law prohibited the sale of 3.2% beer to males under 21 and females under 18 • .18% of females and 2% of 18-20-year olds were arrested for DUI

Fisher v. Univ. of Texas (2013) • 7-1 majority remanded the case for further review under a more demanding standard that will require colleges and universities to demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.

Fisher v. Univ. of Texas (2013) • Justice Kennedy’s majority opinion: • “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”

Fisher v. Univ. of Texas (2013) • Justice Thomas’s concurring opinion: • “Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination.” • “Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination.” • “I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.”

Fisher v. Univ. of Texas (2016) • Justice Ginsburg’s dissenting opinion: • “The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to ‘assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.’ As I see it, the Court of Appeals has already completed that inquiry. . . . For the reasons stated, I would affirm the judgment of the Court of Appeals.”

Fisher v. Univ. of Texas (2016) • Justice Kennedy’s majority (4-3) opinion: • ““A university is in large part defined by those ‘intangible qualities which are incapable of objective measurement but which make for greatness.’ ” • “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

Fisher v. Univ. of Texas (2016) • Justice Alito’s dissenting opinion: • “UT’s race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program furthers its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest.”

Schuette v. Coalition to Defend Affirmative Action (2014) • In a 6-2 decision the Supreme Court upheld Michigan’s constitutional ban (approved by 58% of the voters in 2006) prohibiting discrimination or preferential treatment in public education, government contracting and public employment. Justice Kennedy (joined by Justices Roberts and Alito) wrote “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”

Schuette v. Coalition to Defend Affirmative Action (2014) • Justice Breyer (concurring) wrote “I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution.” • Justice Sotomayor (with Justice Ginsburg) dissented, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Constitutional Law