Constitutional Law: Professor Yoshino Spring 2009 Outline

Second Reconstruction to Rehnquist Revolution (1937-1995)

1. 
   Deference: during this time, SCOTUS gives lots of deference to Congress re: Commerce Clause → BUT SCOTUS is more aggressive re: Substantive Due Process and Equal Protection (seeds: Carolene FN 4)
   
2. 
   Carolene Products [CB 513]
   
   1. 
      FACTS: Carolene Products indicted for shipping skimmed milk interstate in violation of fed. law → SCOTUS upholds the law under both Commerce Clause and Due Process
      
   2. 
      Commerce Clause [least important]: Congress can exclude articles whose use can reasonably be conceived to be injurious (like Champion: intrinsically dangerous products)
      
   3. 
      Due Process: SCOTUS first engages in empirical analysis and finds that Congress was justified in finding that filled milk was dangerous
      
      1. 
         Not for SCOTUS to determine whether there were less restrictive alternatives (e.g. labeling) or if statute didn’t go far enough (Congress may choose address one evil and not another)
         
   4. 
      Rational basis (dictum): rebuttable presumption that regulation has rational basis → since it was at least debatable whether or not filled milk should be regulated in this way (or at all), presumption was not rebutted → FN 4 opens door for categories deserving higher scrutiny
      
      1. 
         Specific const. prohibitions: Bill of Rights, as incorporated in 14^th Amdt. Due Process
         
         1. 
            Some rights not incorporated against states: (1) right to bear arms; (2) 3^rd Amdt.; (3) grand jury clause; (4) civil jury guarantee; (5) bail provision
            
      2. 
         Political rights: when reg. restricts political processes that would normally be used to repeal undesirable leg.
         
         1. 
            Note: there may be unenumerated political rights (e.g. right to vote) which would fall outside of 1
            
      3. 
         Discrete/Insular minorities: by definition a counter-majoritarian protection of minorities
         
         1. 
            Involves substantive decision to pick and choose which minorities you want to protect
            
         2. 
            Irony: you have to be powerful enough to get on Court’s radar in order to be recognized as a powerless minority
            
         3. 
            Would it be better to protect “diffuse and anonymous” minorities? (Ackerman → BUT note Yoshino’s argument re: gays: fact that gays are “diffuse and anonymous” means they can better infiltrate political processes/become accepted, and thus less in need of protection)
            
3. 
   Lee Optical [CB 520]: important for moving rational basis out of dictum and setting up radically deferential scrutiny
   
   1. 
      FACTS: Due Process and Equal Protection challenge to statute prohibiting opticians from fitting lenses to face w/o ophthalmologist/optometrist prescription
      
   2. 
      Rational basis review: SCOTUS gives radically deferential scrutiny
      
      1. 
         Judicial imagination: rational if SCOTUS can imagine some rational reason for legislation → “enough that there is an evil at hand, and that it might be thought that regulation was rational way to correct it”
         
         1. 
            Legislature itself doesn’t have to articulate reason for reg.
            
         2. 
            Criticism: Gunther says that, re: economic legislation, SCOTUS should be less willing to imagine rationales and should instead look to some state source (e.g. legislative hx.) for a rationale → What about process failure (e.g. interest groups trick legislatures)? Does rational basis let SCOTUS imagine reasons for regulation that legislators never thought of/didn’t intend?
            
      2. 
         Statute may be needless, wasteful, or not logically consistent → that’s up to legislature, not SCOTUS
         
   3. 
      Equal Protection and Due Process: SCOTUS treats both clauses as affording basically same degree of protection in cases of ordinary social or economic regulations → unlike Lochner, which gave Equal Protection little importance outside of race
      
4. 
   Civil Rights Act Title II (prohibiting on public discrimination) and Commerce Clause → criticism: is it a good idea to base civil rights legislation on Commerce Clause? Doesn’t it require convoluted attempts to bring particular establishments within interstate commerce? Note that SCOTUS retracts Commerce Clause jurisprudence; does this endanger civil rights legislation?
   
   1. 
      Heart of Atlanta [CB 560]: SCOTUS upheld Title II re: prohibiting discrimination in a motel easily accessible by interstate highway under Commerce Clause → fact that Congress was legislating a moral wrong as well didn’t detract from fact that discrimination in such hotels greatly affected interstate commerce (blacks would have to find lodging elsewhere)
      
   2. 
      Katzenbach [CB 560]: SCOTUS upheld Title II re: prohibiting discrimination in a restaurant located near interstate highway → rational basis: excluding blacks result in less interstate commerce; discrimination causes unrest affecting general interstate commerce; discrimination deters professionals from moving into such areas and thus hurting industry → SCOTUS cites Wickard: even though particular commerce here (this one restaurant) might be trivial, it’s part of a larger whole