Final First 1/2 of Class

Question 1

Identify the context of this quotation: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” What are two possible ways that this language could be
interpreted?

Answer 1

Heller. Could mean that those prohibitions are constitutional, or that the Court isn’t saying either way

Question 2

What are the similarly-named cases (a) from
1851, which could have supplied an alternative foundation for the result in Dred Scott, without getting into the citizenship of African-Americans or the constitutionality of the Missouri Compromise, and (b) from 1880, which gave an important explanation of the principle expressed in the Fourteenth Amendment, which overruled Dred Scott?

Answer 2

Strader and Strauder.

Question 3

What case from 1833 involves the
interpretation of constitutional clauses using
the passive voice?

Answer 3

Barron (interpreting passive voice in 5A & I/9)

Question 4

How can the distinction between “this

Constitution” and the rest of the Preamble be used to support the interpretive move in Heller, in light of Article VI?

Answer 4

Article VI makes “this Constitution” binding,
not the purposes, fitting with Heller making the operative provision binding, even if it
doesn’t fit with the 2A preamble.

Question 5

What cases refuse to overrule earlier cases
after (a) 137 years, (b) 58 years, and (c) 19
years? What cases overrule others after (a) 1
year, (b) 17 years, and (c) 58 years?

Answer 5

McDonald, Bolling, Casey, Knox (or Jones &

Laughlin), Lawrence or Malloy, Brown.

Question 6

Identify the context of this quotation: “Our
Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking’ that direct and restrain our exposition of the Due Process Clause.” Does the Court agree today?

Answer 6

Glucksberg; no—Obergefell disavows, at least for “marriage and intimacy” cases.

Question 7

What case disappointed those who were

hoping for an analogy of the form “Reed is to Craig as Romer is to ____”?

Answer 7

Windsor, refusing to raise level of scrutiny for sexual-orientation discrimination, as CA2 had done.

Question 8

What does Roe say about arguments for

abortion rights that (a) are consistent with fetal personhood, or (b) deny fetal personhood?

Answer 8

Arguments like (a) (e.g., Thomson) are
completely ignored, because the Court says
personhood requires abortion prohibition.
The Court is agnostic on arguments like (b)
(e.g., Tooley).

Question 9

Identify the context of this quotation: “[T]he
law need not be in every respect logically
consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Name two earlier cases that disagree with this general approach.

Answer 9

Williamson; different approach in Lochner

and Nebbia.

Question 10

How do the majority and dissent in Heller use Miller differently?

Answer 10

The Heller majority notes that the case would have been much easier under the Heller dissent’s interpretation, because the gun-owner in that case, Miller, was obviously not part of a state-run militia. The Heller dissent generalizes from Miller’s reasoning that a relationship of the gun to a militia was required to a general requirement of a relationship between a gun-owner and a militia.

Question 11

What 1960s incorporation cases change earlier answers to whether a right in the Bill of Rights is applied to states? What cases change or refine the earlier question, i.e., the mode of analysis used to decide such issues?

Answer 11

Malloy overrules Adamson and Twining;
Benton overrules Palko; Mapp overrules
Wolf; Duncan overrules Maxwell; these are all changed answers. One case refines the
question: Duncan refines the Palko “implicit in the concept of ordered liberty” analysis into one based on tradition.

Question 12

What ratio of states did McDonald regard as
important to its analysis? How does that fact undermine one possible argument that Lochner was properly decided in 1905, but would not be properly decided the same way today?

Answer 12

McDonald cares about 22/37 in 1868, rather
than 44/50 today. That prevents us from saying that there was a consensus in favor of laissez-faire in 1905, but there no longer is one; if the 44/50 ratio doesn’t matter, it doesn’t matter whether there is a present consensus.

Question 13

How can Dred Scott be used to support

Brown and attack Plessy on originalist principles?

Answer 13

Like Brown but not Plessy, Dred Scott sees

that racial-separation laws imply inferiority.

Question 14

What provisions adopted in 1791 and 1868

might directly support the holding in Bolling?

Answer 14

5A due process clause and 14A citizenship

declaration.

Question 15

Identify the context of this quotation: “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” How is this case generally regarded today?

Answer 15

Korematsu. High prestige on doctrine, low

prestige on result.

Question 16

What two, or perhaps three, circumstances allow an exception to the usual rule for the level of scrutiny for alienage classifications?

Answer 16

Significant interest (Foley), federal government (Mathews), maybe illegal aliens (Plyler).

Question 17

When was the last time the Court answered an incorporation question with a full “no”? When has the Court answered “partly”?

Answer 17

1947, Adamson; said partly in Apodaca in

1972 and Wolf in 1949.

Question 18

Was Justice Blackmun’s position on the existence of a constitutional duty to protect consistent between 1973 and 1989?

Answer 18

Yes—Roe assumes duty to protect, because
personhood of fetus requires state to ban
abortion. DeShaney disagrees, but Blackmun dissents.

Question 19

Identify the context of this quotation: “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Which way does that cut in Obergefell?

Answer 19

From Windsor; if federal government can’t
take position on SSM contrary to states,
Obergefell claim fails, but if it’s not essential to holding, might still be OK to nationalize SSM.

Question 20

What do cases from 1857 and 2008 say about the limits placed on constitutional interpretation by framers’ originally-understood applications?

Answer 20

Binding, because framers couldn’t assert

principles inconsistent with their actions (Dred Scott), not limited to them, e.g., muskets (Heller).

Question 21

How did the Court’s attitude toward the constitutionality of implications of racial inferiority change between 1880 and 1896?

Answer 21

It didn’t. Plessy agreed with Strauder that they are unconstitutional, but said segregation wasn’t such an implication.

Question 22

Explain the context of this quotation: “We do
not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” How is this claim in tension with the cases on which this case relies?

Answer 22

Griswold’s reaffirmation of rejection of
Lochner, which is odd, since it relies on
Pierce, which comes from Meyer, which relies centrally on Lochner.

Question 23

How did the Court’s standard for incorporation from 1937 get changed in 1968 and 2010?

Answer 23

Palko’s “implicit in concept of ordered liberty” gets understood to mean “required by Anglo-American legal tradition” in Duncan, then restricted to “required by American legal tradition” in McDonald.

Question 24

What differing uses did the majority and dissent in Heller make of Miller?

Answer 24

Scalia says on dissent’s reading, made no sense to talk about status of gun, since Miller the man wasn’t in militia; Stevens says relationship of person to militia should match relationship of gun to militia.

Question 25

If “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” what is that called? What case adopts this standard?

Answer 25

“Undue burden,” Casey.

Question 26

How can Dred Scott be used to support Bolling and Brown?

Answer 26

The court infers lack of citizenship from lack of equality manifested in separation laws. This (a) supports Brown, because the Court recognizes that separation connotes inequality, and (b) supports Bolling, because citizenship entails equal citizenship, and the citizenship declaration of 14A/1 binds Congress.

Question 27

What feature of equal-protection jurisprudence has been criticized by Justices Marshall, Stevens, Burger, and Scalia?

Answer 27

Tiers of scrutiny.

Question 28

How did the Court’s attitude toward judicial policy-making change between 1905 and 1976?

Answer 28

In Lochner in 1905, the court was willing to assess the reasonableness of lots of regulations, but in Washington v. Davis in 1976, the court refused to adopt a disparate-impact test because it was unwilling to do so.

Question 29

What two cases from 1896 were reaffirmed or overruled on the same day in 1954?

Answer 29

Gibson, saying E/P doctrine applies to feds, | reaffirmed in Bolling; Plessy, saying separate can be equal, overruled in Brown.

Question 30

As of 1947, which parts of the Bill of Rights had been incorporated against states?

Answer 30

5A takings and all of the 1A.

Question 31

How long after Slaughterhouse did the Court start using substantive due process to scrutinize the reasonableness of regulations?

Answer 31

Just 4 years, in Munn.

Question 32

How is Apodaca in tension with McDonald and with Justice Black’s approach to the Fourteenth Amendment?

Answer 32

Apodaca says 6A jury right is only partially incorporated. McDonald disagrees with that approach with respect to the 2A. Justice Black advocated total incorporation, which is obviously inconsistent with Apodaca.

Question 33

After 1937, are there any elements of constitutional protection for economic liberty left?

Answer 33

Still contracts-clause limits, 5A takings, 1A commercial speech, SDP limits on punitive damages.

Question 34

After the Court acquiesced in the New Deal, what did the Court say about the standard to be applied in normal cases where someone complains that a legislature has invaded his economic liberty?

Answer 34

Ordinary standard under Carolene Products | upholds legislation if it has a rational relation to a legitimate state interest.

Question 35

How has the Supreme Court’s assessment of sex discrimination under the Fourteenth Amendment changed from 1873 to 1923 to 1937 to 1971 to 1976?

Answer 35

Bradwell in 1873, may ban women lawyers under P/I. Adkins in 1923, no different minimum wage under SDP. West Coast Hotel in 1937 overrules Adkins. Reed in 1971, sex discrimination in trustees struck down under EPC rational basis. Craig in 1976, 3.2-beer-age discrimination struck down under EPC intermediate scrutiny.

Question 36

What are the three basic sorts of arguments for the result in Griswold?

Answer 36

Policy (doesn’t promote any interest, White), tradition (not enforced for long time, unusual law, Harlan), purpose (penumbras, Douglas).

Question 37

What parts of the Bill of Rights does the Fourteenth Amendment explicitly apply against states?

Answer 37

5A D/P.

Question 38

Explain the context of this quotation: “Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual ... to enter into those contracts in relation to labor which may seem to him appropriate or necessary...?”

Answer 38

Lochner; the Court views the 14A as requiring direct re-assessment of legislatures’ policy choices.

Question 39

Dred Scott cites the prevalence of laws against interracial marriage, both at the Founding and in 1857, in support of its holding. How can this support an originalist argument for Loving?

Answer 39

Dred Scott recognized that enforced racial separation is badge of inferiority, using that as a basis for denying blacks citizenship. Given 14A & Strauder no-stigmas-of-inferiority rule, supports getting rid of those laws.

Question 40

Explain the context of this quotation, and two ways it might be read: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Answer 40

Heller. Might be saying (a) these restrictions are in fact constitutional, or (b) merely that the opinion doesn’t decide whether such restrictions are constitutional.

Question 41

What examples of rights protected by the | Privileges or Immunities Clause did the Court list in Slaughterhouse?

Answer 41

Rights "which owe their existence to the Federal government, its national character, its Constitution or its laws"

Question 42

How do Douglas and Harlan’s arguments for the result in Griswold differ?

Answer 42

Douglas sees penumbral privacy in 1A, 3A, | 4A, 5A; Harlan relies on tradition.

Question 43

How does Carolene Products apply to the | issues in Graham, Croson, and Craig?

Answer 43

Carolene Products says discrimination against “discrete & insular minorities” is special concern. Graham uses Carolene Products to say that discrimination against aliens is suspect, but Croson and Craig ignore Carolene Products in being concerned about affirmative action & discrimination against women.

Question 44

Explain the context of this quotation: “[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”

Answer 44

Williamson, allowing ophthalmologist/optician discrimination & making clear that Lochner has been thoroughly repudiated.

Question 45

What do Mapp, Robinson, Gideon, Malloy, Painter, Klopfer, Washington, Duncan, and Benton all have in common?

Answer 45

They all incorporate parts of the Bill of Rights against states.

Question 46

Explain the context of this quotation: “Our Nation’s history, legal traditions, and practices ... provide the crucial ‘guideposts for responsible decisionmaking’ that direct and restrain our exposition of the Due Process Clause.” Are later cases consistent with this statement?

Answer 46

Glucksberg, allowing ban on assisted suicide. Lawrence, striking down ban on gay sex, is in tension with it, though if emergent traditions also count, can make them consistent.

Question 47

What were the two components of the Supreme Court’s revolution of 1937? What cases did they overrule?

Answer 47

Death of economic SDP and tight rein on federal power. West Coast Hotel overrules Adkins, and indirectly Lochner.

Question 48

``` Explain the context of this sentence: “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state.” Do later cases agree with the reasoning of this case? ```

Answer 48

Lochner in 1905, explaining SDP right to work long hours. No— West Coast Hotel in 1937 allows a minimum wage for women and Williamson in 1955 sets a general rational- basis test, generally allowing economically paternalistic laws.

Question 49

How does Carolene Products fit into an assessment of the constitutionality of age discrimination?

Answer 49

Everyone gets old, so aged aren’t “discrete & | insular.”

Question 50

Explain the context of this quotation: “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” What provision in the Constitution can be used to support this contention? Would Justice Black agree?

Answer 50

Casey, 9A. Black would disagree—Griswold | dissent.

Question 51

What are two separate arguments why the restriction of marriage to heterosexuals should be subject to intermediate scrutiny?

Answer 51

Gender discrimination, discrimination against | homosexuals as class.

Question 52

Explain the context of this quotation: “A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” Would the Court in 1905 have used this argument?

Answer 52

Washington v. Davis; Lochner court wouldn’t use argument, since they’re willing to strike down lots of these sorts of statutes anyway.

Question 53

How do events from 1920 and 1938 suggest an | argument against Craig?

Answer 53

19A lets women vote, and Carolene Products from 1938 says discrimination against discrete & insular minorities is the key concern, so maybe Craig is wrong that sex discrimination should receive heightened scrutiny.

Question 54

Is discrimination against men subject to the same constitutional standards as discrimination against women?

Answer 54

Yes. E.g., Craig (men drink later)

Question 55

If the Court were to adopt Justice Field’s view in his Slaughterhouse dissent that the Privileges or Immunities Clause is a ban on hostile and discriminating legislation, could the Privileges or Immunities Clause support the outcome in Graham?

Answer 55

No, because P/I only covers citizens, not | aliens, which Graham makes a suspect class.

Question 56

Slaughterhouse said in 1873 that it would be surprised if the Equal Protection clause were ever used to protect anyone besides the freedmen. What case first contradicted this prediction?

Answer 56

Yick Wo, protecting Chinese aliens.

Question 57

What parts of the Bill of Rights are explicitly incorporated into the text of the Fourteenth Amendment?

Answer 57

Only 5A D/P.

Question 58

How did the Court’s attitude change between 1992 and 2003 toward the relationship of constitutional rights regarding (a) abortion and (b) intimate sexual conduct in gay relationships?

Answer 58

In Casey in 1992, the Court said that Roe had not been weakened by any subsequent precedent—not, for instance, Bowers in 1986— but Lawrence in 2003 uses Casey as a reason to overrule Bowers.

Question 59

How did the Supreme Court’s assessment of the social meaning of racial separation change from 1857 to 1896 to 1954 to 1967?

Answer 59

Dred Scott in 1857 uses the stigma of racial separation as a reason why black people can’t be citizens; Plessy in 1896 denies that racial segregation imposes a stigma in order to evade the Fourteenth Amendment’s prohibition on officially-imposed racial stigma; Brown in 1954 corrects Plessy’s mistake somewhat gingerly, noting that separation is usually understood as connoting inferiority, and Loving in 1967 repudiates Plessy’s assessment of social meaning forthrightly, saying that racial separation has always been intended to promote White Supremacy.

Question 60

What do Gitlow, Near, DeJonge, Cantwell, and Everson all have in common? Were they all good law in 1950? Are all of them good law today?

Answer 60

Cases incorporating parts of the First Amendment (though Gitlow was only assuming it). All good law in 1950 & good law today.

Question 61

Identify the context of this statement: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Has the Court taken this reasoning seriously in later cases?

Answer 61

Defense of abortion rights in Casey. Not taken very seriously in Glucksberg, but important in Lawrence.

Question 62

Identify the context of this quotation: “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Is this a departure from the way in which the Court addressed such questions in 1923 and 1925? Why might that be a problem?

Answer 62

Griswold, reaffirming death of Lochner. This is different from how the Court operated in 1923 and 1925, when it decided Meyer and Pierce, which took their doctrine straight from Lochner. That’s a problem because Griswold relies on Meyer and Pierce.

Question 63

How does Casey depart from Roe?

Answer 63

Replaces trimester framework with “undue burden.”

Question 64

What differing uses did the majority and dissent in Heller make of state-constitutional materials?

Answer 64

State constitutions refer explicitly to bearing arms in self-defense; Stevens dissent says 2A consciously worded to be different, while Scalia says 2A presumably protects same right.

Question 65

Name six counterexamples to the proposition that the level of scrutiny determines the outcome in equal-protection cases.

Answer 65

In Korematsu & Grutter, classifications survive strict scrutiny. In Reed, Moreno, Cleburne, and Romer, classifications fail rational-basis scrutiny.

Question 66

What does Grutter say about how much diversity is required for “critical mass,” and how does the petitioner in Fisher make use of this in relationship to Gratz?

Answer 66

Grutter doesn’t say, in part because it says schools must be flexible; the Fisher petitioner argues that if we say exactly how much is required, which strict scrutiny should require, we would have an inflexible program condemned in Gratz.

Question 67

What cases from 1873, and 1973 were reaffirmed in 1992, and 2010 (not respectively)?

Answer 67

1873 Slaughterhouse Cases reaffirmed in 2010 McDonald; 1973 Roe reaffirmed in 1992 Casey

Question 68

Where does “implicit in the concept of ordered liberty” come from, and what did the Court say about it in 1968?

Answer 68

It comes from Palko deciding not to incorporate double jeopardy. The Court clarified in Duncan in 1968 that the standard refers not to the relationship of a right to philosophical concepts of “order” and “liberty,” but to tradition.

Question 69

Name one example of a non-insular minority, | according to the Supreme Court.

Answer 69

The aged, in Murgia, because everyone gets | old.

Question 70

What case from 1937 fits with cases from 1873 | and 1908, but not 1923 or 1976?

Answer 70

West Coast Hotel, allowing sex discrimination like Bradwell and Muller, but unlike Adkins or Craig.

Question 71

Identify the context of this statement: “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth] Amendment.” Does this fit with current law?

Answer 71

From Roe, arguing against fetal personhood based on its consequences; seems to contradict DeShaney.

Question 72

What cases from 1886 and 1971 would come out differently if Field’s Slaughterhouse dissent rather than the Equal Protection Clause were used as the basis for constitutional equality doctrine?

Answer 72

Yick Wo and Graham, because P/I doesn’t | cover aliens.

Question 73

What are three forms of discrimination that Congress has banned statutorily but for which the Court has declined to apply heightened scrutiny?

Answer 73

Age (Murgia v. ADEA), pregnancy (Geduldig v. Pregnancy Discrimination Act), disability (Cleburne v. ADA).

Question 74

What differing uses did the majority and | dissent in Heller make of Miller?

Answer 74

Scalia says on dissent’s reading, made no sense to talk about status of gun, since Miller the man wasn’t in militia; Stevens says relationship of person to militia should match relationship of gun to militia.

Question 75

Why does Korematsu still get cited, if it is such | a low-prestige opinion?

Answer 75

It establishes strict scrutiny for racial | classifications.

Question 76

Identify the context of this sentence: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of theuniverse, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” How has interpretation of the sentence and the doctrine underlying it changed from 1992 to 1997 to 2003 to 2010?

Answer 76

From Casey in 1992, suggesting that the court decides what rights are genuinely important. In 1997 in Glucksberg, though, the Court said this passage was merely describing earlier cases, not adopting a new sort of analysis. In 2003 in Lawrence, though, the Court used the passage to justify a right to intimate sexual behavior. In 2010, the Court in McDonald again uses Glucksberg’s tradition-based approach to SDP, Lawrence notwithstanding.

Question 77

Immediately after the Slaughterhouse Cases, which of the three main Fourteenth Amendment concepts—privileges or immunities, due process, and equal protection—placed significant restrictions on the federal government, states, or both?

Answer 77

Due Process bound both the feds and states, Privileges or Immunities placed no significant restrictions on either, and Equal Protection covered states but not the feds.

Question 78

Name three cases in which the Supreme Court rejected a liberty claim at one point in time, but later accepted it, and one case in which the Supreme Court accepted a liberty claim at one point in time, but later rejected it.

Answer 78

Possibilities for 1st Q: Palko overruled by Benton, Twining and Adamson overruled by Malloy, Betts overruled by Gideon, Maxwell overruled by Duncan, Bowers overruled by Lawrence, Wolf partly overruled by Mapp. Cruikshank sort of overruled by DeJonge and McDonald, Buck sort of overruled by Griswold. Possibilities for 2nd Q: Lochner overruled by West Coast Hotel and Williamson

Question 79

Identify the argumentative context of this sentence: “[Free blacks] were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race...” Describe one questionable theoretical assumption of this argument, and one way a portion of this argument can be used to promote racial equality.

Answer 79

Dred Scott, arguing against citizenship of blacks based on poor treatment, e.g. by laws banning intermarriage. Assumes that the framers couldn’t act inconsistently with their principles. Together with a constitutional ban on assertions of inferiority (e.g., from Strauder), the assessment of the social meaning of segregation can produce a ban on segregation, as in Brown. Alternatively, the inference of lack of citizenship from inequality can be used to infer a requirement of equality from the citizenship declaration, supporting Bolling.

Question 80

What did the Supreme Court say in 1939 and 2008 about “weapons not typically possessed by law-abiding citizens for lawful purposes”?

Answer 80

In Miller in 1939, the Court approved a ban on sawed-off shotguns because they had no relationship to a well-regulated militia, and the Court in Heller in 2008 used this language, derived from Miller, to articulate a limit on the 2A right.

Question 81

Does section 1 of the Fourteenth Amendment bind Congress? Consider both the text and current doctrine.

Answer 81

The text doesn’t bind Congress, except for the citizenship declaration. The 5A Due Process Clause already binds Congress, though, and the Equal Protection Clause was held to bind Congress in Gibson and Bolling.

Question 82

What was “unthinkable” to the Supreme | Court in 1954?

Answer 82

Banning state school segregation but not | federal school segregation.

Question 83

Identify the context of this quotation: “[F]irearms have a fundamentally ambivalent relationship to liberty. ... Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade. ... [L]iberty is on both sides of the equation.” How do others on the Court respond to this argument?

Answer 83

From Stevens’s dissent in McDonald. The Court noted that criminal-procedure rights have the same effect.

Question 84

How did the Court’s attitude toward judicial policy-making change between 1905 and 1976?

Answer 84

In Lochner in 1905, the court was willing to assess the reasonableness of lots of regulations, but in Washington v. Davis in 1976, the court refused to adopt a disparate-impact test because it was unwilling to do so.

Question 85

What opinion stresses “the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society”? How has the Court agreed or disagreed in cases from 1997, 2010, and 2015?

Answer 85

Harlan’s Griswold concurrence (based on his Poe dissent). Court agreed that tradition was the key SDP issue in Glucksberg and McDonald, but not in Obergefell.

Question 86

Why were the majority and dissent in Heller | arguing about “against”?

Answer 86

The Court agreed that “bear arms against” has military-only connotation, but not just “bear arms.”

Question 87

What clause of the Constitution simultaneously engages in and prohibits forms of age discrimination?

Answer 87

26A.

Question 88

How closely related must a gender classification be to an important interest to be constitutional?

Answer 88

Substantially

Question 89

How does Justice Field's dissent analogize the Fourteenth Amendment’s Privileges or Immunities Clause to Article IV section 2 clause 1?

Answer 89

Both are bans on “hostile and discriminating legislation”: Article IV regarding out-of-staters, 14A for all citizens of US.

Question 90

What justice’s dissents rely heavily on “studies and counterstudies” and “reports, hearings, and other readily available literature”?

Answer 90

Breyer, in Heller and Lopez.