

Constitutional Law

## A casebook  
—or a reader for  
Fidelity & Constraint (2019)

## Lawrence Lessig

Copyright

©2019 Lawrence Lessig, licensed CC-BY-SA

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About this book

Elided text (i.e., the parts of cases removed) is indicated by "[...]." Footnotes not elided can be found at the end of the opinion. Text from the editor introducing and explaining sections is italicized and single-spaced.

To see the online version of this casebook, which contains easy access to the full case text that has been edited here, visit: opencasebook.org/casebooks/128853

## Dedication

To JZ, who has done so much — if silently and without attribution — to inspire the innovations that will make the law more accessible and hence better.

## Preface

This open source — as in freely licensed (CC-BY-SA) — casebook is a companion to my book, Fidelity & Constraint (Oxford 2019). It covers the course material of federalism, separation of powers, and the Civil War Amendments, organized into a framework for understanding how the Supreme Court has developed these doctrines. That framework is suggestive for domains beyond the scope of this casebook.

The casebook can obviously be used independently of the book. Ideally, it would be used against the argument of the book, by adding material that contradicts or weakens the arguments that I have offered there. But the intent was to offer both readers of the book a way to see the source material more easily, and for users of the casebook to have a source to read more deeply.

Obviously, there is a great deal of constitutional law not included within the scope of this casebook. Our hope is that others will remix this version, and add sections to cover the missing parts. If that use develops, we will find a way to display the competing versions. Our ultimate hope is to encourage a kind of casebook-authoring-competition, so that the extraordinary talent of law professors across the country could find an easier way to express itself, free of the economic constraints (and opportunities) of traditional publishing.

## Acknowledgments

I am grateful to my friend Jonathan Zittrain for making the extraordinary talent of the Harvard Law Library available to me to complete this work. On that team, I am especially grateful to Brett Johnson, who has shepherded this project from a messy beginning to an end which is at least a sharable beginning with patience and incredible insight. I am grateful as well to the many students who have helped correct and edit the cases in this book, especially Louis Murray, Nate Sobel, Adele Zhang, Rocky Li, Zak Lutz, Elias Kim, and Matthew Arons, as well as Catherine Biondo from the library. I am also very grateful to my assistant, Valentina de Portu, who completed the first version of this book, inspiring the project that produced this version.

By publishing this casebook, I join a movement to make the material of the law more affordable and accessible, as well as to make modifying and improving that material easier, both technically and legally. I hope others will join this movement too. I recognize that in one sense this competes with the extraordinary work of many, including many friends and teachers, who have developed extraordinary casebooks covering similar material. I hope it is obvious that in another obvious sense, it doesn't begin to compete with their work: I have not provided the powerful and helpful editorial material so many great casebooks offer, including the questions and followup matter. For many, cost notwithstanding, other casebooks will continue to make sense. I hope for some, a simpler connection with the source material will offer value.

This project depends critically on others contributing to the improvement and evolution of the source material. You can join that community by creating an account on the open digital textbook platform H2O (opencasebook.org), cloning and remixing these materials (opencasebook.org/casebooks/128853) or any of the other casebooks or materials collections on the site.

## Contents

Part I: Elements

Text and Context

Article V, U.S. Constitution

Framing Readings

Marbury v. Madison

M'Culloch v. Maryland

Gibbons v. Ogden

Translation

U.S. v. Classic

Olmstead v. United States

Part II: Fidelity on the Right

Translating Federalism, v1

United States v. E. C. Knight Co.

 Houston, East & West Texas Railway Co. v. United States

Champion v. Ames (Lottery Case)

Hipolite Egg Co. v. United States

Hammer v. Dagenhart

 Railroad Retirement Board v. Alton Railroad

 A. L. A. Schechter Poultry Corp. v. United States

Carter v. Carter Coal Co.

Translating Due Process, v1

Founding Values

Calder v. Bull

 Slaughterhouse Cases (Dissents)

Deference

Munn v. Illinois

Less Deference

Mugler v. Kansas

Allgeyer v. Louisiana

No Deference

Lochner v. New York

Muller v. Oregon

Bailey v. Alabama

Coppage v. Kansas

 Adkins v. Children's Hospital of Columbia

Retreat: Commerce

 National Labor Relations Board v. Jones & Laughlin Steel Corp.

United States v. Darby

Wickard v. Filburn

Katzenbach v. McClung

Retreat: Due Process

Nebbia v. New York

West Coast Hotel v. Parrish

 Williamson v. Lee Optical of Oklahoma, Inc.

Translating Federalism, v2

New York v. United States

National League of Cities v. Usery

 Garcia v. San Antonio Metropolitan Transit Authority

Translating Federalism, v3

United States v. Lopez

U.S. v. Morrison

Gonzales v. Raich

Translating: Useable Tools

Gregory v. Ashcroft

South Dakota v. Dole

New York v. United States (1992)

Printz v. United States

Useable Tools: Immunity

11th Amendment (1795)

Hans v. Louisiana

Seminole Tribe of Florida v. Florida

Alden v. Maine

Part III: Fidelity in the Middle

Brooding Omnipresences

Swift v. Tyson

Erie Railroad Co. v. Tompkins

Sosa v. Alvarez-Machain

Article II

The Nature of Executive Power

 Youngstown Sheet Tube Co. v. Sawyer

 Dames & Moore v. Regan, Secretary of the Treasury

Zivotofsky v. Kerry

The Essence of Executive Power

 Humphrey's Executor v. United States

Synar v. United States

Morrison v. Olson

 Free Enterprise Fund v. Public Co. Accounting Oversight Board

The Control on Executive Power

United States v. Nixon

Clinton v. Jones

Article I vs. Article II

INS v. Chadha

Bowsher v. Synar

 Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc.

Clinton v. City of New York

Part IV: Fidelity on the Left

Amendments (after a(n un)civil war)

Constitutional Texts

 Amendment XIII, U.S. Constitution

 Amendment XIV, U.S. Constitution

 Amendment XV, U.S. Constitution

Statutory Texts

Civil Rights Act of 1866

Civil Rights Act of 1870

Equal Protection

Race: Hope

U.S. v. Rhodes

U.S. v. Hall

U.S. v. Given

Strauder v. West Virginia

Race: Less

 Slaughter House Cases (Majority)

 U. S. v. Cruikshank (CTA 1874) (Bradley, J.)

U.S. v. Cruikshank

The Civil Rights Cases

Race: Forgotten

Plessy v. Ferguson

Giles v. Harris

Korematsu v. United States

Race: Remembered

Brown v. Board of Education

Bolling v. Sharpe

Loving v. Virginia

Race: Result

Palmore v. Sidoti

Lee v. Washington

 Fisher v. University of Texas at Austin

Sex

Bradwell v. State

Goesaert v. Cleary

Reed v. Reed

Frontiero v. Richardson

Craig v. Boren

United States v. Virginia

Doctrinal Details: Section 5

City of Boerne v. Flores

Board v. Garrett

Doctrinal Details: Incorporation

McDonald v. City of Chicago

Due Process, v2

The Idea

Poe v. Ullman

Expanded

Griswold v. Connecticut

Roe v. Wade

Rationalized

Planned Parenthood v. Casey

Equal Privacy: Sexual Orientation

Boutilier v. INS

Bowers v. Hardwick

Romer v. Evans

Lawrence v. Texas

Obergefell v. Hodges

#

# 

# Part I: Elements

The thesis of this course is that there are two kinds of fidelity at the core of the Supreme Court's elaboration of our Constitution — fidelity to meaning and fidelity to role. Fidelity to meaning is the fidelity that we all expect of any court or judge: it is the effort to preserve the meaning, across context. Fidelity to role is the constraint on that practice of preservation.

In this part, I introduce these separate elements. Section 1 begins with a puzzle: is Article V the exclusive mode by which the Constitution can be amended? And if it is, then was Article XIII of the Articles of Confederation? And if it was, then was the Constitution constitutionally ratified? And if it was, then how do we account for the background context that makes that ratification valid?

Section 2 displays both fidelity to role and fidelity to meaning. The first two cases are perfect examples of role; the third sets up the problem for meaning.

Section 3 then digs deeper into the core metaphor of fidelity to meaning — translation.

1.1

## Text and Context

Are amending clauses in a constitution exclusive? Are they exclusive in our Constitution? Were they exclusive in the Articles of Confederation? If they are or were exclusive, then is the Constitution properly ratified? If it was, then how must we interpret the Constitution to make it so?

1.1.1

###  Article V, U.S. Constitution

ARTICLE V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate. [ ... ]

1.1.2

## Article XIII, Articles of Confederation

Article XIII.

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

Agreed to by Congress 15 November 1777 In force after ratification by Maryland, 1 March 1781

1.2

## Framing Readings

Fidelities, born

In these three foundational cases, the Supreme Court demonstrates both fidelity to meaning and fidelity to role. Marbury and McCulloch show us the latter; Gibbons sets up the challenge for the former. The aim of this section is to suggest the sense in which both fidelities have been part of our tradition since the very start.

1.2.1

### Marbury v. Madison

5 US 137

February 1803.

1.2.2

###  M'Culloch v. Maryland

17 US 316  
1819

1.2.3

### Gibbons v. Ogden

22 US 1  
March 2, 1824

1.3

## Translation

Examples

Fidelity to meaning includes the full set of interpretive techniques used by courts to understand the meaning of a text. In the simplest case, the text seems to speak for itself. Whatever a witness is, that the Constitution requires two for a conviction for treason is clear. But the most important cases are not simple, and most difficult of these non-simple cases involve interpretation across time. How does a court preserve the meaning of an old text within a current context.

The metaphor of translation suggests a common dynamic for dealing with interpretation across contexts. In the two cases within this section, the courts must decide whether to "translate" a value into a new or different context. In Olmstead, the Court declines the invitation; in the dissent, Justice Brandeis makes a compelling argument for why it should have accepted. Classic frames the same question in a different context: But here, the Court is quite eager to update the application of an original text, so as to preserve its original meaning.

1.3.1

###  U.S. v. Classic

313 US 299  
Decided May 26, 1941.

1.3.2

###  Olmstead v. United States

277 US 438  
June 4, 1928.

#  Part II: Fidelity on the Right

The idea standing behind the structure of this book is that the effort of the Court to preserve a founding value is subject to a constraint. That in many contexts, we can understand the court to be attempting to preserve a foundational value, subject to the constraints of its institutional role. The effort at preservation is part of fidelity to meaning; the constraint is fidelity to role.

In this section, we review to examples of this dynamic — first, with federalism, and second, with economic due process. In both contexts, we can understand the Court's eventual activism as an effort to translate founding values; in both contexts, the Court finds itself constrained by social and political reality. That constraint forces the Court to "retreat." With the federalism cases, we see the dynamic of charge and retreat repeating itself.

2.1

##  Translating Federalism, v1

In the cases within this section, the Court evinces an increasing sensitivity to expanding federal power. At first, that concern is expressed most forcefully in dissent. And then later, it expresses itself in the opinion of the Court. The limits the Court imposes on federal power are not grounded in the text — or at least, the text as Gibbons + McCulloch had interpreted it. They are instead translations designed to restore a framing balance, in the face of growing economic integration.

2.1.1

###  United States v. E. C. Knight Co.

156 US 1  
January 21, 1895.

2.1.2

###  Houston, East & West Texas Railway Co. v. United States

234 US 342  
Decided June 8, 1914.

2.1.3

###  Champion v. Ames (Lottery Case)

188 US 321  
February 23, 1903.

2.1.4

###  Hipolite Egg Co. v. United States

220 US 45  
Decided March 13, 1911.

2.1.5

### Hammer v. Dagenhart

247 US 251  
June 3, 1918.

2.1.6

###  Railroad Retirement Board v. Alton Railroad

295 US 330  
May 6, 1935.

2.1.7

###  A. L. A. Schechter Poultry Corp. v. United States

295 US 495  
May 27, 1935.

2.1.8

###  Carter v. Carter Coal Co.

298 US 238  
May 18, 1936.

2.2

##  Translating Due Process, v1

What became known as economic due process gets its birth in a more general sense. The question these cases raise is whether there is an implicit line beyond which the government cannot go. The presumption of the conservatives in these cases is that there is. That presumption is grounded in foundational theories of republican government. It is founded in a rich (if later) theory of free labor. Both values are increasingly threatened by an increasingly activist state (and federal) government. By the end of this section, we see the Court trying to translate these fundamental values by limiting the scope of governmental power.

2.2.1

### Founding Values

These two cases give the first articulation of two different founding values — the ultimate limit on how far the law can reach (Calder), and the ideal of free labor (Slaughterhouse). We will see Slaughterhouse later in the course. Its purpose here is to introduce the idea that will be developed later.

2.2.1.1

#### Calder v. Bull

3 US 386  
1798

2.2.1.2

####  Slaughterhouse Cases (Dissents)

83 US 36  
April 14, 1873

2.2.2

### Deference

Munn states the default idea of deference, paralleling, I suggest, Gibbons on federal power.

2.2.2.1

#### Munn v. Illinois

94 US 113  
March 1, 1877

2.2.3

### Less Deference

In these two cases, the Court begins to pull back on the presumption of deference, groping for limits to the scope of state power.

2.2.3.1

#### Mugler v. Kansas

123 US 623  
December 5, 1887.

2.2.3.2

####  Allgeyer v. Louisiana

165 US 578  
March 1, 1897.

2.2.4

### No Deference

These cases mark the extreme of no deference on the scope of state power, beginning with the (in)famous Lochner, through the Court's last hurrah, Adkins. Note the techniques the Court is developing to limit state power. These I describe as "tools."

2.2.4.1

####  Lochner v. New York

198 US 45  
April 17, 1905.

2.2.4.2

#### Muller v. Oregon

208 US 412  
February 24, 1908.

2.2.4.3

#### Bailey v. Alabama

219 US 219  
January 3, 1911.

2.2.4.4

#### Coppage v. Kansas

236 US 1  
Decided January 25, 1915.

2.2.4.5

####  Adkins v. Children's Hospital of Columbia

261 US 525  
Decided April 9, 1923.

2.3

## Retreat: Commerce

Both initial efforts at conservative translation fail. In this section, we explore the retreat the Court makes in the context of the commerce power.

2.3.1

###  National Labor Relations Board v. Jones & Laughlin Steel Corp.

301 US 1  
Decided April 12, 1937.

2.3.2

###  United States v. Darby

312 US 100  
Decided Feb. 3, 1941

2.3.3

### Wickard v. Filburn

317 US 111  
Decided Nov. 9, 1942.

2.3.4

###  Katzenbach v. McClung

379 US 294  
Decided Dec. 14, 1964.

2.4

## Retreat: Due Process

In this section, we explore the cases evincing the retreat in economic due process.

2.4.1

### Nebbia v. New York

291 US 502  
Decided March 5, 1934.

2.4.2

###  West Coast Hotel v. Parrish

300 US 379  
Decided March 29, 1937.

2.4.3

###  Williamson v. Lee Optical of Oklahoma, Inc.

348 US 483  
Decided March 28, 1955.

2.5

##  Translating Federalism, v2

If the retreat circa 1937 was a response to an effective constitutional amendment — as Bruce Ackerman has argued — then absent another federalism amendment, the struggle to craft limits on federal power in the name of federalism should have come to an end. But it did not. Instead, the Court continues its struggle to find ways to limit federal power. In this section, we begin with a case that evinces fidelity to role reasons for ending federal court protection of states from federal taxes. In National League and Garcia, we see first an effort at crafting limits, and then a retreat that echoes the justification given in New York.

2.5.1

###  New York v. United States

326 US 572  
January 14, 1946

2.5.2

###  National League of Cities v. Usery

426 US 833  
Decided June 24, 1976.

2.5.3

###  Garcia v. San Antonio Metropolitan Transit Authority

469 US 528  
Decided Feb. 19, 1985.

2.6

##  Translating Federalism, v3

These three cases demonstrate yet another effort at crafting limits on federal power. Rehnquist had predicted in Garcia that the federalists would be back; here they are, back in Lopez. Morrison further tunes this newly crafted limit on federal power. But Raich seems to mark yet another retreat — as evinced both by the author (Stevens) and the dissent by O'Connor.

2.6.1

###  United States v. Lopez

514 US 549  
Decided April 26, 1995.

2.6.2

### U.S. v. Morrison

529 US 598  
Decided May 15, 2000

2.6.3

### Gonzales v. Raich

545 US 1  
Decided June 6, 2005.

2.7

##  Translating: Useable Tools

What's needed is a set of useable tools to effect federalism's ends: doctrine that gives the Court the ability to craft limits on federal power (to satisfy, in other words, fidelity to meaning), without triggering a fidelity to role concern. These five cases evince techniques that serve that function well, if imperfectly. Gregory deploys a clear statement rule. Justice O'Connor's opinion in Dole crafts a useable limit on spending authority. New York and Printz develop an anti-commandeering rule for both legislatures and executives. Sebelius draws a line between the regulation of activity and non-activity. What commends each of these tools is the relative stability in their deployment. What marks Sebelius in particular was its being wrapped in an opinion that actually upheld Obamacare, despite framing a doctrine that will limit commerce authority. How does that mirror Marbury?

2.7.1

### Gregory v. Ashcroft

501 US 452  
Decided June 20, 1991.

2.7.2

###  South Dakota v. Dole

483 US 203  
Decided June 23, 1987.

2.7.3

###  New York v. United States (1992)

505 US 144  
Decided June 19, 1992

2.7.4

###  Printz v. United States

521 US 898  
Decided June 27, 1997

2.7.5

## NFIB v. Sebelius

132 S. Ct. 2566  
Decided June 28, 2012.

2.8

##  Useable Tools: Immunity

Of all the conservative innovations to cabin federal power in the name of the founding values of federalism — at least without clear textual basis — the doctrine of sovereign immunity is the most impressive. This is the hardest doctrine to understand as a textual matter — except through the lens of translation — and yet it practices its fidelity to meaning with a doctrine that does not yet cross the boundaries of fidelity to role.

Notice how the majority, especially in Alden, could do better if it simply acknowledged the result as translation rather than originalism, and how the dissent is simply talking past the federalist objectives.

On dignity, how might the Grand and Petit Jury requirements be parallel?

2.8.1

###  11th Amendment (1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

2.8.2

### Hans v. Louisiana

134 US 1  
Decided March 3, 1890.

2.8.3

###  Seminole Tribe of Florida v. Florida

517 US 44  
Decided March 27, 1996

2.8.4

### Alden v. Maine

527 US 706  
Decided June 23, 1999

#  Part III: Fidelity in the Middle

The examples in this section either have no current political valence or the valence they have flips, regularly.

3.1

##  Brooding Omnipresences

This section is the most irrelevant for constitutional law generally, but most relevant for the development of the interpretive theory of the book. The ultimate focus is Sosa and the understanding it evinces of the evolution from Swift to Erie. There is a great deal of argument about whether that understanding is correct. But for the purposes of the book, whether it is correct or not is not really relevant. If it is as the justices describe it in Sosa, what does that say about the nature of fidelity?

3.1.1

### Swift v. Tyson

41 US 1  
January 25, 1842

3.1.2

###  Erie Railroad Co. v. Tompkins

304 US 64  
Decided April 25, 1938.

3.1.3

###  Sosa v. Alvarez-Machain

542 US 692  
June 29, 2004.

3.2

## Article II

Article II should be a fidelity course on its own. Obviously, the power exercised by the US President is vastly greater than the framers ever expected. The challenge for the Court is to determine how much of the framing values can be carried over into this radically different institution.

3.2.1

###  The Nature of Executive Power

This section begins with a modern framing, but then tests the scope of executive power against different constitutional baselines. Fidelity to role dominates.

3.2.1.1

####  Youngstown Sheet Tube Co. v. Sawyer

343 US 579  
Decided June 2, 1952.

3.2.1.2

####  Dames & Moore v. Regan, Secretary of the Treasury

453 US 654  
Decided July 2, 1981.

3.2.1.3

####  Zivotofsky v. Kerry

135 S. Ct. 2076  
Decided June 8, 2015.

3.2.2

###  The Essence of Executive Power

These cases raise an important question of contingency: What must we be able to say — in a relatively uncontested way — to enforce the constraints the Court is asked to enforce. Justice Scalia primes the idea in an opinion for the DC Circuit. It is against the background of that understanding that these cases should be read.

3.2.2.1

####  Humphrey's Executor v. United States

295 US 602  
Decided May 27, 1935.

3.2.2.2

####  Synar v. United States

626 F. Supp. 1374  
Feb. 7, 1986.

3.2.2.3

#### Morrison v. Olson

487 US 654  
Decided June 29, 1988

3.2.2.4

####  Free Enterprise Fund v. Public Co. Accounting Oversight Board

130 S. Ct. 3138  
Decided June 28, 2010.

3.2.3

###  The Control on Executive Power

How much Article III can be used to constrain Article II (either at the behest of Article I or not) is the focus of these cases. What are the fidelity to role constraints?

3.2.3.1

####  United States v. Nixon

418 US 683  
Decided July 24, 1974.

3.2.3.2

#### Clinton v. Jones

520 US 681  
Decided May 27, 1997.

3.3

##  Article I vs. Article II

In these cases, an interestingly pragmatic formalism gets deployed to make limits on Congress enforceable. Beyond the importance of the doctrine, the cases evince a critically interesting fidelity to role-informed approach.

3.3.1

### INS v. Chadha

462 US 919  
Decided June 23, 1983

3.3.2

### Bowsher v. Synar

478 US 714  
Decided July 7, 1986.

3.3.3

###  Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc.

501 US 252  
Decided June 17, 1991.

3.3.4

###  Clinton v. City of New York

524 US 417  
Decided June 25, 1998.

#  Part IV: Fidelity on the Left

In this part, we explore the evolution of doctrine typically associated with the Left. That framing is, of course, anachronistic across the range the material covers. It is meant to refer to modern sensibilities.

4.1

##  Amendments (after a(n un)civil war)

It is worth spending some time working through these various texts, the Amendments obviously, but also the statutory texts. Understanding the articulation of the rights in those statutes is essential to understanding the nature of the controversy in the early cases.

4.1.1

###  Constitutional Texts

4.1.1.1

####  Amendment XIII, U.S. Constitution

Passed by Congress January 31, 1865;  
Ratified December 6, 1865.
Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.

[ ... ]

4.1.1.2

####  Amendment XIV, U.S. Constitution

Passed by Congress June 13, 1866;  
Ratified July 9, 1868.
Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

[ ... ]

4.1.1.3

####  Amendment XV, U.S. Constitution

Passed by Congress February 26, 1869;  
Ratified February 3, 1870.
Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

[ ... ]

4.1.2

### Statutory Texts

4.1.2.1

####  Civil Rights Act of 1866

4.1.2.2

####  Civil Rights Act of 1870

Enforcement Act of 1870

4.1.2.3

## Civil Rights Act of 1875

An act to protect all citizens in their civil and legal rights.

4.2

## Equal Protection

These cases about race are meant to illustrate a pattern that is different from the pattern with the federalism cases. In those cases, I said that translation was suppressed in the period beginning in 1937. Then, beginning with Justice Rehnquist's opinion in National League of Cities in 1976, there has been a restoration of the effort to translate federalism properly.

With equal protection as applied to race, the suppression comes first. After the initial period of hope, and then a short period of ambiguity, the cases evince (as I argue more fully in the book) the yielding to social and political reality. The revival of the original meaning of equality happens fully only in 1954. And then that principle of equality gets translated to sex and sexual orientation later.

4.2.1

### Race: Hope

Ask yourself the question: if these cases defined the post-Civil War jurisprudence, would there be anything to criticize?

4.2.1.1

#### U.S. v. Rhodes

1 Abb. US 28  
1866

4.2.1.2

#### U.S. v. Hall

26 F.Cas 79  
May 1, 1871

4.2.1.3

#### U.S. v. Given

25 F.Cas 1324  
January 1, 1873

4.2.1.4

####  Strauder v. West Virginia

100 US 303  
October Term, 1879

4.2.2

### Race: Less

It is important to read Slaughterhouse carefully. The case is known for destroying the possibility that any fundamental rights, or Bill of Rights rights, would be recognized as "incorporated." But does the opinion actually do that? Does it resolve the question as to the Second Amendment? Or First? And what does it mean by "federal law" as being within the Privileges or Immunities of the Fourteenth Amendment? Does the opinion do anything more than negate the possibility of unenumerated rights being recognized as federal Privileges or Immunities?

To the extent Justice Miller is changing the original understanding, is there a fidelity to role justification?

The two Cruikshank opinions are very important to the understanding this casebook (and the book) are trying to teach. Spend some time understanding the conceptual space he is describing. Which rights are created by the Constitution, and which rights are simply recognized? How does that difference matter? What would it say about the scope of Congress's Thirteenth and Fifteenth Amendment powers?

Then think about why Chief Justice Waite's opinion is so obtuse and obscure. Is there a purpose served by obscurity?

4.2.2.1

####  Slaughter House Cases (Majority)

83 US 36  
April 14, 1873

4.2.2.2

####  U. S. v. Cruikshank (CTA 1874) (Bradley, J.)

1 Woods 308  
April Term, 1874.

4.2.2.3

####  U.S. v. Cruikshank

92 US 542  
October Term, 1875

4.2.2.4

####  The Civil Rights Cases

109 US 3  
October 15, 1883

4.2.3

### Race: Forgotten

These cases reflect a weakened or cowardly Court. But ask yourself whether anything more would have been possible at the time.

The Giles case is extraordinary both for the result and for the manner used to reach the result. Justice Holmes has not yet understood the importance of a dissent (such as Harlan's in Plessy). He would very soon in the context of the First Amendment.

4.2.3.1

####  Plessy v. Ferguson

163 US 537  
May 18, 1896

4.2.3.2

#### Giles v. Harris

183 US 475  
Decided April 27, 1903.

4.2.3.3

####  Korematsu v. United States

323 US 214  
Decided Dec. 18, 1944.

4.2.4

### Race: Remembered

And thus are the courts vindicated (about a hundred years late!). Why did it take a dozen years more before the Court could decide Loving?

4.2.4.1

####  Brown v. Board of Education

347 US 483  
Decided May 17, 1954.

4.2.4.2

#### Bolling v. Sharpe

347 US 497  
Decided May 17, 1954.

4.2.4.3

####  Loving v. Virginia

388 US 1  
Decided June 12, 1967.

4.2.5

### Race: Result

There is a great deal more that could be done with race—especially mapping the important retreat eventually effected with affirmative action. This version of the book doesn't provide enough on that. Palmore asks the question, "Who pays the price to achieve racial equality?"—at least if you credit the claims about the costs of integration. Lee sets the possibility of segregation being justified even under heightened scrutiny. Note the number of justices formally accepting that conclusion.

4.2.5.1

#### Palmore v. Sidoti

466 US 429  
Decided April 25, 1984.

4.2.5.2

#### Lee v. Washington

390 US 333  
Decided March 11, 1968.

4.2.5.3

####  Fisher v. University of Texas at Austin

133 S. Ct. 2411  
Decided June 24, 2013.

4.2.6

### Sex

The Equal Protection Clause does not mention "sex" or gender. Yet the text is eventually translated to include that category within its reach. What is the evolving understanding that makes that evolution possible? Is there a fidelity to meaning justification for the result in the end?

4.2.6.1

#### Bradwell v. State

83 US 130  
April 15, 1873

4.2.6.2

####  Goesaert v. Cleary

335 US 464  
Decided December 20, 1948.

4.2.6.3

#### Reed v. Reed

404 US 71  
Decided November 22, 1971

4.2.6.4

####  Frontiero v. Richardson

411 US 677  
Decided May 14, 1973.

4.2.6.5

#### Craig v. Boren

429 US 190  
Decided Dec. 20, 1976.

4.2.6.6

####  United States v. Virginia

518 US 515  
Decided June 26, 1996.

4.2.7

###  Doctrinal Details: Section 5

The Court's ultimate rendering of Congress' §5 power is strongly inconsistent with the framing understanding. Is there a justification for that inconsistency? Could a more originalist understanding empower Congress to evolve the protections of the 14th Amendment, taking pressure away from the Court?

4.2.7.1

####  City of Boerne v. Flores

521 US 507  
Decided June 25, 1997.

4.2.7.2

#### Board v. Garrett

531 US 356  
Decided February 21, 2001.

4.2.8

###  Doctrinal Details: Incorporation

This case is left essentially unedited because it provides such a rich account of the development of the incorporation doctrine and the strongest originalist argument for a reconceptualization of the Privileges or Immunities Clause.

4.2.8.1

####  McDonald v. City of Chicago

561 US 742  
Decided June 28, 2010.

4.3

## Due Process, v2

The substantive due process at stake in this section is referred to as "privacy." More precisely, it is a characterization of a domain within which no government has a sufficient justification to reach. Start the section by asking whether you believe there is anything the government cannot regulate (beyond where constitutions expressly prohibit it). Is there anywhere the government cannot reach? And if there is, then the question is whether these particular domains qualify.

4.3.1

### The Idea

Harlan's statement of the method for identifying the domains within which the government cannot reach is incredibly important to the modern doctrine. Would a modern Harlan apply the doctrine in the same way as the text of his opinion indicates?

4.3.1.1

#### Poe v. Ullman

367 US 497  
Decided June 19, 1961.

4.3.2

### Expanded

Why does Douglas resist Harlan's framing?

If you reject the right in Roe, could you imagine the opposite rule? Could the state decide that no woman should have more than one child, and require abortion before the fetus is viable?

And you should think about how an Equal Protection argument might be added to the Due Process argument of Roe.

4.3.2.1

####  Griswold v. Connecticut

381 US 479  
Decided June 7, 1965.

4.3.2.2

#### Roe v. Wade

410 US 113  
Decided Jan. 22, 1973.

4.3.3

### Rationalized

The critical opinion in this case is the Joint Opinion — perhaps the clearest example of fidelity to role that is announced as such. Is the opinion's understanding of Lochner and Plessy consistent with the account of this book?

4.3.3.1

####  Planned Parenthood v. Casey

505 US 833  
Decided June 29, 1992.

4.4

##  Equal Privacy: Sexual Orientation

The cases establishing constitutional protection for people based on sexual orientation mix both Equal Protection and Due Process arguments. Justice Kennedy's opinion in the marriage equality cases mixes it explicitly. What has changed to make these translations so compelling, even to otherwise conservative judges? Do the dissenters go too far in their outrage?

4.4.1

### Boutilier v. INS

387 US 118  
Decided May 22, 1967.

4.4.2

### Bowers v. Hardwick

478 US 186  
Decided June 30, 1986

4.4.3

### Romer v. Evans

517 US 620  
Decided May 20, 1996.

4.4.4

### Lawrence v. Texas

539 US 558  
Decided June 26, 2003.

4.4.5

###  Obergefell v. Hodges

135 S. Ct. 2584  
Decided June 26, 2015.

