CON LAW OUTLINE

Rules and Analysis

I. READ THIS FIRST
a. TERMS AND ABBREVIATIONS
i. Page references are to the casebook and the case reference outline.
1. CB Casebook (No reference to CB means that it was a supplement)
2. OL Case Reference Outline (No reference to OL means that only the holding was
noted or the case was only brought up in class)
ii. Government body references
1. Government Govt or govt
2. SCOTUS Supreme Court of the United States
3. POTUS President of the United States
4. Cabinet level secretaries Sec . For example:
a. SecState Secretary of State
b. SecInterior Secretary of the Interior
c. EXCEPTION Attorney General is AG
5. Executive Order EO
iii. States are referred to by their state abbreviations (CA California, NV Nevada, and so on,
except when the name is used as a party in a suit)
iv. Parties
1. P Plaintiff; D Defendant
2. Pe Petitioner; R Respondent
3. PP Plaintiff Petitioner; DP Defendant Petitioner; PR Plaintiff Respondent; DR
Defendant Respondent
b. ARRANGEMENT AND STRUCTURE
i. This outline lays out the steps of analysis for each issue.
ii. They are brought up in the order that we covered them in class.
iii. Cases are only referenced to highlight specific holdings, but will include page references to
the Casebook or the Case References Outline. If there is no page reference to either, then
only the holding was noted or the case was only brought up in class.

II. JUDICIAL AUTHORITY AND ROLE

a. Judicial Review
i. Marbury v. Madison (Pg. 2 CB; Pg. 1 OL)
1. Courts, as the branch charged with interpreting the Constitution, have the power to
strike laws as unconstitutional
2. The authority to do so comes directly from the people because the Constitution was
created by the people themselves.
ii. Martin v. Hunters Lessee (Pg. 17 CB; Pg. 2 OL)
1. The Supreme Court has the authority to reverse state court rulings on matters of
federal law
2. The Court has that authority because federal law must be unbiased and consistent
throughout the country
3. State courts cannot be unbiased or apply federal law consistently because state courts
will be biased to their own states
iii. 25 of the Judiciary Act of 1789 gives SCOTUS the power to review state court judgments
on matters of federal and constitutional law
b. Exclusivity Because the states are bound by the Constitution, they are bound by the Supreme
Courts interpretation of the Constitution. Cooper v. Aaron (Pg. 20 CB; Pg. 3 OL)
i. Theories of SCOTUS constitutional interpretation
1. Departmentalism
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a. SCOTUS is not the only institution that may interpret the Constitution
b. SCOTUS may rule on the specific cases that come before it, but does not have
the exclusive power to interpret the Constitution
2. Judicial supremacy (PREVAILING THEORY)
a. SCOTUS is the peculiarly distinct institution for articulating constitutional
meaning
b. SCOTUS is final arbiter in defining what the words of the Constitution
actually means, and as part of the American legal system, we are bound to
SCOTUS interpretations
c. This also means that Congress may not overrule SCOTUS decisions via
statute. It must be done via constitutional amendment. Dickerson v. US (Pg.
21 CB)
ii. Restrictions on federal judicial power
1. Congress may restrict the Supreme Courts jurisdiction, as long as it does not violate
SCOTUS original jurisdiction. Art. III, 2, Cl. 2. See also Ex Parte McCardle (Pg. 3
OL)
2. Federal courts may only hear cases that are justiciable
c. Justiciability case or controversy requirement
i. NO ADVISORY OPINIONS
1. Advisory opinions are court rulings that do not involve a specific case presented
before it
2. Haburn judicial opinions must have binding legal effect or it would be
unconstitutional (dilutes the power of the court)
ii. Standing Elements
1. Injury-in-Fact
a. Concrete and particularized
b. Procedural injuries the procedure must produce some act that causes an
injury, then the injured party then has standing to sue
i. Widely shared injuries are not particularized
ii. However, FEC v. Akins if an injury is sufficiently concrete and
specific, standing is still appropriate even if the injury is not
particularized to the suing party (Pg. 45 CB)
c. Actual or imminent, not conjectural or hypothetical
2. Causation the injury has to be fairly traceable to the challenged action of the
defendant and not the result of the independent action of some third party not before
the court
3. Redressability it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
iii. Prudential Limits on Standing (Pg. 43 CB)
1. 3rd party standing Plaintiff generally must assert his own legal rights and interest
and cannot rest his claim to relief on the legal rights or interests of 3rd parties.
2. Generalized grievances Court will refrain from adjudicating abstract questions of
wide public significance because they are widely shared and are most appropriately
addressed in the representative branches
3. Zone-of-Interest Suits must fall within a laws zone of interest
4. Exceptions to limits
a. Citizen Suits Congress may confer standing to citizens to sue for procedural
injuries, but those citizens must still meet the requirements of standing. Lujan
v. Defenders of Wildlife (Pg. 32 CB; Pg. 4 OL).
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i. Congressional conferral of standing removes 3rd party and zone-of-
interest limitation
ii. Generalized grievance concern is addressed by requiring that citizen
have suffered some personal harm from the procedural injury, and that
the remedy sought redresses Ps injury
b. Qui Tam suits where Congress assigns its injury to the private citizen.
5. Legislators do not have standing to sue over loss of political rights associated with the
responsibilities. Raines v. Byrd (Pg. 46 CB)
iv. Standing over time (Pg. 47 CB)
1. Ripeness Has the injury occurred or is it immediate?
2. Mootness if the problem no longer exists by the time it gets to trial, the issue is
moot and is no longer determined a controversy, unless
a. The issue is capable of repetition while evading review; or
b. The defendant suspiciously engages in voluntary cessation
v. Political questions
1. Questions that are better left to the other branches of govt
2. Attributes of political questions. Baker v. Carr (Pg. 50 CB; Pg. 5 OL)
a. the presence of a constitutional reference justifying or labeling political
questions;
b. a lack of judicially discoverable and manageable standards for resolving it;
c. the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion;
d. the impossibility of a courts undertaking independent resolution without
disrespecting the other branches of govt;
e. an unusual need for unquestioning adherence to a political decision already
made;
f. the potentiality of embarrassment from multifarious pronouncements by
various departments on one question
3. Specific areas of law
a. What congressional qualifications consist of is NOT a political question
because it is in the Constitution. Powell v. McCormack (Pg. 55 CB)
b. Whether the President can unilaterally terminate a contract is NOT a political
question because prudential concerns do not apply and there is a constitutional
basis (no majority). Goldwater v. Carter (Pg. 56 CB)
c. Impeachment proceedings are political questions because Constitution charges
solely House and Senate to lead impeachment proceedings, and judicial
involvement would create uncertainty. Nixon v. United States. (Pg. 56 CB).
d. Constitutional amendment process is a political question. Coleman v. Miller
(Pg. 58 CB)
e. Presidential elections? Bush v. Gore (Pg. 59 CB)
vi. Adequate and independent state grounds. Michigan v. Long (Pg. 7 OL)
1. if the state court opinion plainly states that its ruling is based on state law, SCOTUS
will not review
2. SCOTUS took on this standard to prevent issuing any advisory opinions, since their
opinions would hold no sway on state matters
d. External controls on the power of the court
i. Constitutional amendment
ii. Congressional interference with the Court
1. Controlling the size of SCOTUS
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2. Exceptions Clause removing SCOTUS jurisdiction
3. Controlling SCOTUS budget
4. Rescheduling SCOTUS terms
iii. Impeachment of judges
iv. Reliance on other branches for enforcement
v. Judicial appointments

III. POWERS OF CONGRESS

a. Necessary and Proper Clause McCulloh v. Maryland (Pg. 63 CB; Pg. 8 OL)
i. Necessary and Proper only means that Congressional action be helpful in accomplishing
its legitimate ends.
ii. Let the end be legitimate, let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional.
b. Commerce Clause Congress may regulate 3 areas of interstate commerce. United States v. Lopez
(Pg. 107 CB; Pg. 10 OL)
i. Regulate the use of the channels of interstate commerce. United States v. Darby (Pg. 98 CB;
Pg. 8 OL)
ii. Regulate or protect the instrumentalities of, or persons or things in, interstate commerce
1. Example of instrumentalities regulation of the railroads, since they are the
instruments by which interstate commerce is carried out
2. Protect criminalizing certain conduct that occurs in interstate commerce (no
carrying guns on an airplane)
iii. Regulate activities that substantially affect interstate commerce. United States v. Darby (Pg.
98 CB; Pg. 8 OL). Elements of the substantial effects factors test are:
1. Whether the activity of economic or commercial in nature.
a. If economic in nature, govt may apply aggregation principle. United States v.
Morrison (Pg. 117 and 119 CB n2; Pg. 11 OL)
b. Aggregation where individual conduct may not have a substantial effect on
interstate commerce, but the aggregation of the effects of that conduct would.
2. Jurisdictional dements does the law provide for case-by-case review of those
instances where a federal authority may determine whether the field of activity being
regulated has been involved with interstate commerce?
3. Are there congressional findings that the activity in question affects interstate
commerce?
4. Is the activity an area in which the states have historically been sovereign?
5. NOTE: Congress may regulate individual conduct not found to have a substantial
effect on interstate commerce if that conduct generally does have an impact on
interstate commerce, and is a part of a comprehensive scheme to address the problems
of that conduct. Gonzalez v. Raich (Pg. 119 CB; Pg 12 OL)
c. Spending and Taxing Power South Dakota v. Dole (Pg. 162 CB; Pg. 15 OL)
i. Elements of conditional spending.
1. Must be for the general welfare
a. spending to induce individual action is constitutional, but spending to induce
state action may cross the line and be unconstitutional (see coercion)
b. What constitutes general welfare is a political question
2. Must be unambiguous so the States can decide if they want it or not.
a. to prevent the loss of state sovereignty via deceptive means

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b. if a condition is not unambiguously stated, the court will relieve the state of
that condition
3. Germaneness condition must be related to the goal that the federal program is trying
to attain
ii. Other Constitutional prohibitions Congress cannot use federal funds to induce states to take
on unconstitutional actions
iii. Coercion conditional grants may be unconstitutional if they become so heavy that it
becomes coercion
d. Treaty Power Missouri v. Holland (Pg. 168 CB; Pg. 15 OL)
i. Acts of Congress are the supreme law of the land only when made in pursuance of the
Constitution, while treaties are declared to be so when made under the authority of the United
States.
ii. Congress does not need the ability to have enacted the provisions of a treaty independently as
law for the US to agree to and enter into treaties.
iii. Limitation The treaty power may expand the powers of the federal government, but it may
not restrict the individual rights set out in the Constitution.
iv. Constitutional basis necessary and proper clause gives Congress the authority to enforce
treaties made by the President with the advice and consent of the Senate.
e. 5 of the Fourteenth Amendment
i. Congress may only enact laws regulating the states in furtherance of 1 of the Fourteenth
Amendment. United States v. Morrison, 529 US 598 (2000) (Part 2)
ii. Regulations must be congruent and proportional, and it must be a constitutional violation that
is being remedied
f. Regulation of the States as States
i. The states may be regulated, as long as the functions of the state government are not
commandeered.
1. Congress may not require the states to enact a regulation on behalf of the federal
govt, or require that state officers enforce federal law
a. New York v. US statute requiring states to dispose of low-level radiation
waste or take title to it was commandeering of the legislative process (Pg. 134
CB; Pg. 18 OL)
b. Printz v. US statute requiring chief law enforcement officers to do
background checks on any person purchasing guns was commandeering of
state executive officers (Pg. 139 CB; Pg. 18 OL)
2. Public Policy: POLITICAL ACCOUNTABILITY the entity enacting the regulation
or desiring to enact the regulation should do it itself and be accountable to voters
should they not agree with the law
ii. Alternatives to commandeering (Pg. 138 CB)
1. States exercise influence over the government through their lobbyists (National
League of Cities), advocates (Governors association), determination of election
procedures, etc. Garcia v. San Antonio Metropolitan Transit Authority (Pg. 129 CB;
Pg. 17 OL)
2. Spending Power
3. Commerce Power
4. Conditional Preemption
a. Congress may threaten to pass federal laws under the Commerce Clause
unless states choose to regulate according to federal standards.
b. Not coercive because burdens caused by States refusal falls on the parties
whose conduct is being targeted by Congress.
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IX. SEPARATION OF POWERS

a. Limits on POTUS by Congress Youngstown test (Pg. 245 CB; Pg. 19 OL), as modified into a
spectrum by Dames & Moore v. Regan (Pg. 256 CB; Pg. 21 OL)
i. There is specific or implicit congressional authorization for POTUS actions POTUS power
is greatest.
ii. Twilight zone
1. Where there has been no congressional grant or prohibition, POTUS and
congressional authority are concurrent or its distribution is uncertain.
2. In this area, any actual test of power is likely to depend on the imperatives of events
and contemporary imponderables rather than on abstract theories of law.
iii. There is specific or implicit congressional prohibition for the presidents actions
1. POTUS power is lowest
2. Only applies when Congress was not allowed to pass legislation in that area of law in
the first place
b. Limits on Congress
i. Non-Delegation Doctrine Whitman v. American Trucking Association (Pg. 21 OL)
1. Congress may not delegate its authority if the law it passed to do so was
unconstitutional in the first place.
2. Congress may not vest too much of its power to another entity because the
Constitution vests all of the countrys legislative power into it.
3. To the degree that Congress may delegate, it must set an intelligible principle for the
designee to follow. The broader the scope of the law, the more narrow the intelligible
principle must be.
ii. Legislative Vetoes
1. Any congressional actions that have the effect of law must follow the procedures
already laid out in the Constitution. INS v. Chadha (Pg. 293 CB; Pg. 22 OL)
a. Constitutional requirements
i. Bicameralism passage through both Houses of Congress
ii. Presentment signed by the President
b. Congressional action is legislative in nature when it affects the legal rights of
an entity outside of Congress
2. Congressional alternatives
a. Spending/Appropriations powers choose to fund or not fund something
b. Be more specific in its legislation
c. Pass a new law
d. Sunset provisions limit the applicability of its delegation
e. Have hearings
c. Line-Item Veto Clinton v. New York (Pg. 301 CB; Pg. 23 OL)
i. Mechanism
1. Passes both Houses of Congress
2. POTUS signs the bill into law
3. POTUS then vetoes specific line items if he believes that by doing so, it will:
a. Reduce the federal deficit
b. Not impair any essential government functions
c. Not harm the national interest
ii. Unconstitutional because:
1. POTUS would be able to amend duly enacted laws without going through Congress
2. delegates too much power to the POTUS
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3. Congress may obtain the same result by giving the president discretion in how to
exercise the budget
d. Appointment of officers
i. Art. II, 2
1. The President shall nominate, and by and with the advice and consent of the Senate,
appoint officers of the United States.
2. Congress may by law vest the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of departments.
ii. ANALYSIS Mistretta v. United States (Pg. 26 OL)
1. Is there a breach of non-delegation?
2. Is there a breach of the separation of powers?
iii. Process federal offices are created by statute, and appointments can happen in different
ways:
1. POTUS makes appointments with Senate confirmation (default)
2. Congress may set different appointment processes for POTUS that do not require
Senate confirmation for inferior officers.
3. Congress may vest appointment authority in the courts of law, or in the heads of
departments for inferior officers.
a. Heads of Department Those who have a seat on the Presidents cabinet.
Freytag v. Commissioner (Pg. 27 OL)
b. Courts of Law do not have to be Art. III courts. Freytag v. Commissioner
(Pg. 27 OL)
i. Art. I courts are administrative courts
ii. Appeals from Art. I court decisions go to Art. III courts because after
the Art. I court has decided that a person has or has not violated the
law, the appeals must go to the Art. III courts to interpret the law and
rule on the findings of the Art. I court.
4. Congress may appoint congressional officers, such as the Speaker of the House and
committee chairs, but it may not appoint any officers outside of Congress. Buckley v.
Valeo (Pg. 24 OL)
iv. Inferior vs. Principal Officers
1. Generally, officers are those who exercise significant authority pursuant to the laws of
the United States. Buckley v. Valeo (Pg. 24 OL)
2. Inferior Officers
a. Dispositive factors Edmond v. United States (Pg. 28 OL)
i. Officers whose work is directed and supervised at some level by others
who were appointed by the President with the consent and advice of
the Senate.
ii. No binding authority unless permitted by others.
b. Less dispositive factors Morrison v. Olson (Pg. 25 OL)
i. Removable by higher authority
ii. Limited duties
iii. Limited in jurisdiction
iv. Limited in Tenure
3. Principal Officers Those who are appointed and confirmed by the Senate. Freytag
v. Commissioner (Pg. 27 OL)
v. Inter-branch appointments are permissible, Morrison v. Olson (Part 1) (Pg. 25 OL), but to
preserve the separation of powers:
1. No branch may aggrandize itself at the expense of the other
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2. No branch can interfere with or hinder the essential functions of another
e. Removal of federal officers
i. The President only has the unfettered ability to remove those officers exercising purely
executive powers. Humphreys Executor v. United States (Pg. 29 OL)
ii. Congress:
1. May restrict the Presidents power to remove officers by 2 means. Humphreys
Executor v. United States (Pg. 29 OL)
a. Setting definite terms for how long that officer would serve, and;
b. Providing specific grounds for removal by the President
2. May only remove executive officers through impeachment
a. Congress may NOT reserve for itself the power to remove an executive officer
by law. Bowsher v. Synar (Pg. 307 CB; Pg. 29 OL)
b. Congress may vest the power to remove an inferior executive officer with a
principal officer, as long as it does not unduly burden the Presidents ability to
perform his responsibilities. This is irrespective of whether the officer
exercises purely executive, quasi-legislative, or quasi-judicial power.
Morrison v. Olson (Part 2) (Pg. 30 OL)

IV. STRUCTURAL LIMITS ON STATE POWERS

a. Preemption
i. Prohibition or limitation on states power to regulate in a subject matter due to the presence
and/or effect of federal legislation
1. Commerce Clause causes an express act of Congress to preempt state regulation if it
is not an unconstitutional act.
2. Dormant Commerce Clause
a. Can preempt state regulatory power in the absence of congressional action
b. Determination of whether state regulation is prohibited because of dormant
commerce clause turns on a determination of congressional intent in the
setting of the particular text, history and purposes of the federal legislation
involved.
ii. Preemption Analysis (Pg. 234 CB)
1. Express Where Congress has passed a law in the subject matter that the state wants
to regulate, the only issue is whether a state statute falls within the area preempted.
2. Field Preemption Where Congress meant to occupy a field of subject matter that
would displace the states from regulation on that subject matter. (Pg. 234 CB)
a. Court requires a clear showing of congressional intent
b. Analysis starts with the assumption that the historic police powers of the
States were not to be superseded by the federal act unless that was the clear
and manifest purpose of Congress. That intent may be evidenced by:
i. The scheme of federal regulation may be so pervasive as to make
reasonable the inference that Congress left no room for the States to
supplement it; or
ii. The federal act may touch a field in which the federal interest is so
dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject.
3. Conflict Preemption Where the federal govt has enacted a complete scheme of
regulation, states cannot conflict or interfere with, curtail, or complement the federal
law, or enforce additional or auxiliary regulations inconsistent with congressional
intent. Hines v. Davidowitz (Pg. 235 CB; Pg. 31 OL)
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a. There is no standard by which to judge this.
b. The Courts primary function is to determine whether, under the
circumstances of each case, the state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.
b. Dormant Commerce Clause
i. Generally, even in the wake of Congressional silence, states cannot discriminate against or
unduly burden interstate commerce through regulation
ii. Analysis
1. Laws that discriminate against interstate commerce
a. Virtually per se invalid if state law is:
i. Facially discriminatory against interstate commerce; or
ii. Has an impermissibly protectionist purpose or effect laws that appear
neutral but in fact favor local economic interest at the expense of out-
of-state competitors
iii. Exceptions
1. Quarantine laws banning the importation of diseased livestock.
Philadelphia v. New Jersey (Pg. 184 CB; Pg. 33 OL)
2. Ban on out-of-state baitfish to deal with possible ecological
effects of the possible presence of parasites and nonnative
species in shipments of out-of-state baitfish. Maine v. Taylor
(Pg. 191 CB; Pg. 34 OL)
b. Facially discriminatory laws violate the Interstate Nondiscrimination
Principle because states may not erect barriers to interstate commerce or
remove itself from the stream of interstate commerce
i. Protectionist purpose
1. Laws that favor in-state or local industry and businesses at the
expense of out-of-state industry and businesses is
presumptively invalid. Bacchus Imports, Ltd v. Dias (Pg. 210
CB; Pg. 36 OL)
2. Where there is no in-state equivalent to the business or industry
that is claiming a state law to be protectionist, there may not be
any discriminatory effect on interstate commerce. Exxon Corp
v. Governor of Maryland (Pg. 211 CB; Pg. 37 OL)
ii. Social welfare free trade throughout the states promotes national
prosperity.
1. State laws that create local benefits that outweigh local costs
may contribute to a national cost that outweighs any national
benefit gained from that state law
2. States should not be allowed to export their costs to other states
while retaining relevant benefits for itself.
iii. Representation reinforcement state regulation is inherently lacking in
political safeguards of the national interest, and the courts are needed
to protect the national interest
2. Laws that unduly burden interstate commerce apply Pike balancing test. Hughes v.
Oklahoma (Pg. 33 OL)
a. Does the statute regulate evenhandedly with only incidental effects on
interstate commerce, or discriminates against interstate commerce either on its
face or in practical effect? If discriminates;
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b. Does the statute serve a legitimate purpose? If so;
c. Could alternative means promote this local purpose as well without
discriminating against interstate commerce?
iii. General exceptions to dormant commerce clause analysis
1. Congress may limit or expand its authority under the Commerce Clause. Where
Congress removes any implied authority over state regulation of interstate commerce,
dormant commerce clause analysis does not apply. Prudential Insurance Co. v.
Benjamin (Pg. 40 OL)
2. Market participant. Reeves v. Stake (Pg. 41 OL)
a. When states act as proprietors in the free market, they are treated as every
other proprietor, subject only to federal law, including the inherent limits of
the commerce clause.
b. Limits to market participant exception South-Central Timber Development,
Inc. v. Wunnicke (Pg. 203 CB; Pg. 42 OL). Commerce clause scrutiny may
well be more rigorous when:
i. a restraint on foreign commerce is alleged
ii. a natural resource is involved
iii. there are restrictions on the resale of the state-owned good.
c. PUBLIC POLICY in support of market participant exception
i. States have the right to determine where they want to spend their
money
ii. States must regulate evenhandedly, but cannot act as a buyer or seller
evenhandedly because they have to pick one vendor
iii. There is an inherent limit in discretionary state spending in that States
can only spend money that it has.
c. The Privileges and Immunities Clause Article IV, 2
i. Art IV., 2 Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
ii. Analysis Barnard v. Thornstenn (Pg. 42 OL)
1. Does the law discriminate with respect to state citizenship? If so, go to Step 2.
2. Is the claimed right a privilege or immunity protected by Art. IV, 2?
a. If so, go to Step 3
b. Privileges and immunities
i. Those rights which bear upon the vitality of the Nation as a single
entity. Baldwin v. Fish and Game Commission of Montana (Pg. 43
OL)
ii. Examples
1. Practicing the law. Barnard v. Thornstenn (Pg. 42 OL)
2. Possession and disposal of property
3. Access to the courts
iii. Examples of what does not fit recreational hunting. Baldwin v. Fish
and Game Commission of Montana (Pg. 43 OL)
3. Is there a substantial reason for the difference in treatment between residents and
nonresidents? If so, go to Step 4.
4. Does the discrimination practiced against nonresidents bear a substantial relationship
to the States objective?
a. Are there alternative means to address that objective?
b. Are nonresidents a peculiar source of the harm?
iii. Citizens Natural persons, entities are not included
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d. The Privileges and Immunities Clause and the 14th Amendment
i. Pre-Civil War Bill of Rights only applicable to the federal govt and not the States. Barron
v. Mayor and City Council of Baltimore (Pg. 340 CB; Pg. 44 OL)
ii. Post-Civil War
1. The Slaughterhouse Cases (Pg. 342 CB; Pg. 44 OL)
a. Privileges and immunities under the 14th Amendment only protects
fundamental rights.
b. Fundamental rights are those that belong to the citizens of all free
governments, and 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. It is protection by the government, 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 prescribe for the general good of the whole.
2. Privileges and Immunities was truncated and viewed as largely dead, until Saenz v.
Roe.
iii. Current application
1. While not found in the Constitution, the right to travel is a fundamental right of
national citizenship and has 3 aspects. Saenz v. Roe (Pg. 348 CB; Pg. 45 OL)
a. The right to travel through the states
b. The right to be treated as any other citizen in a state that the person is visiting
c. The right to be treated as any other citizen in a state that the person has moved
to.
2. Specific applications
a. Limits
i. Durational residency requirement for new state residents to receive
welfare benefits is unconstitutional. Saenz v. Roe (Pg. 348 CB; Pg. 45
OL)
ii. Durational residency requirement for voting is unconstitutional. Dun
v. Blumstein.
iii. Durational residency requirements for free non-emergency healthcare
for indigents is unconstitutional
b. Grants
i. Durational residency requirement for in-state tuition is constitutional.
Starns v. Malkerson
ii. Durational residency requirement for divorce eligibility is
constitutional.

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