American Constitutionalism in Historical Perspective (packet)

Marshall Sliding Scale: this is an intermediate scrutiny case though still maintaining education is NOT a fundamental right. State’s purpose for abridgement: under heightened scrutiny, more than rational basis required. Ct finds the state’s reasons are not sufficient for total deprivation.

1. 
   Illegal aliens are not bearing burdens of citizenship, s/n get its benefits.
   
2. 
   Raises the cost of education for all.
   

1. 
   Likely to leave the country
   

2. 
   Dissent (Burger): extreme ed policy that is stupid but not barred by the Constitution. Should use rational basis review
   

15. 
    State Action and the Enforcement of Civil Rights
    

Congressional Powers

	Commerce Clause	Reconstruction Amendments
Judicial Enforcement	National: (1) Any commerce within necessary & proper (2) Any group States: Negative Commerce Clause	States & National: Suspect class (express or implied) or Unreasonable Burden on Fund Rts (Free speech, religious liberty, privacy, voting rights, access to civil/ criminal justice, mobility)

Expanded State Action
Public function: some central function of state, exclusive & nondelegable	Nexus
(1) Company towns (2) Parks (3) Political primary	(1) State enforcement and restrictive covenant (2) Lease & public duty (3) Permission

Wills | [??] | Private Club | Private Non-Sectarian School | Home Life

Judicial Enforcement	Congressional Enforcement
(1) Literacy tests OK – Lassiter	(1) Illegal: South Carolina v. Katzenbach
(2) English language literacy OK— Cardona	(2) Illegal: Katzenbach v. Morgan
(3) Age discrimination OK—Murgia	(3) Oregon
(4) At large district OK	(4) Illegal

1.