American Constitutionalism in Historical Perspective (packet)

Diverse v. Uniform: If issue can be treated diversely, states may regulate (Cooley). If it must be treated uniformly, states c/n regulate.

Direct v. Indirect: indirect is const., direct is unconst. Conclusory, mechanical, illegitimate standard.

In v. Out of Original Package: out of original package constitutional, in original package unconstitutional. Provided certainty but made no sense. What if in original package but diseased? Should be subject to state regulation then—d/n address substantive distinction

Acceptable v. Unacceptable Motives:

1. 
   Valid when state acting to promote safety as long a compelling state purpose being applied in non-discriminatory way. Bradley v. Public Utilities- (statute involves health and safety probs, acceptable state purpose to lower accident rates)
   
2. 
   If treating out of state differently from in state, unconstitutional. Need to treat everyone equally, c/n be motivated by blatant protectionist motives. Buck v. Kuykendall-(protects local economy). Based on rt inherent in P & I clause (needs to be express discrimination b/w in-state and out of state residents of fund rts but cts refuse to list these rts). Beginning of strict scrutiny.
   

Art. IV, sec. 2: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

1. 
   Camden: Struck down Camden ordinance requiring at least 40% of contractors’ and subcontractor’s employees working on city construction projects by Camden residents. P & I clause not limited to rts enumerated in constitution or bill of rights. Goes beyond CC, P & I says that rt to do business is a fund human rt that must be respected.
   
   1. 
      Formal discrim b/w state residents & non-resident is a problem b/c those impacted, out-of-staters, not given fair weight in the political process.
      
   2. 
      Protectionism is per se unconstitutional, federalism based on natl mkts, rt to sell everywhere on fair terms, consumers have rt to buy goods from anywhere.
      
2. 
   Tumor v. Witzell: rt to make a living implicated by shrimping regs, considered to be a fund human rt
   
3. 
   Baldwin v. Montana Fish and Game: right to hunt elk, not a fundamental human right.
   
4. 
   Edwards v. California: law prevented people from entering the state, basic human right of movement. No state can do this to another state. Can also look to negative commerce clause and 14^th A—equal protection clause—multiply protected. No compelling state interests. When not formal discrimination under P and I clause b/w residents and non-residents may still be unconstitutional under neg commerce clause b/c affects both interstate and intrastate commerce.
   

Transportation: regulating transportation b/w the states under the CC is criticized b/c provides certainty at expense of doctrinal incoherence. “Rational basis w/ bite—reasonable purpose test.” Does the state pose an undue burden? If it does, need legit purpose and rational connection b/w the purpose and the state law. Stronger than rational basis: b/c mere tie or relationship is not enough, need to show that at least one human life is saved.

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