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Liberty,
Equality,
and Due Process:
Cases, Controversies, and Contexts
in Constitutional Law
Ruthann Robson Professor of Law & University Distinguished Professor
City University of New York (CUNY) School of Law
CALI eLangdell Press 2018 First Edition
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About the Author
Ruthann Robson is Professor of Law and University Distinguished Professor at the City University of New York (CUNY) School of Law.
She is the author of First Amendment: Cases, Controversies, and Contexts (eLangdell).
Her other books include DRESSING CONSTITUTIONALLY: HIERARCHY, SEXUALITY, AND DEMOCRACY (2013); SAPPHO GOES TO LAW SCHOOL (1998); GAY MEN, LESBIANS, AND THE LAW (1996); and LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992). She is also the editor of the three volume set, INTERNATIONAL LIBRARY OF ESSAYS IN SEXUALITY & LAW (2011).
She is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on constitutional and sexuality issues.
She is one of the 26 professors selected for inclusion in WHAT THE BEST LAW TEACHERS DO (Harvard University Press, 2013).
Notices
This is the first edition of this Casebook, updated January 2018.
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Preface
This Casebook is intended as a Casebook for a course in Constitutional rights, focused on the guarantees of liberty, equal protection, and due process in the United States Constitution.
It stresses the doctrinal developments but also explores the theoretical and historical contours focusing on the Fourteenth Amendment to the United States Constitution. The Casebook presents basic concepts of constitutional adjudication and federalism, stresses equal protection doctrine and substantive due process, and introduces other constitutional liberties including the Second Amendment.
The Notes accompanying the cases emphasize skill development in constitutional analysis.
Notes on typography
Court opinions often have typographical marks such as ellipses, brackets, and parenthesis. Some more recent Court opinions also have a series of floating asterisk before the concluding paragraph or paragraphs.
Court opinions also generally have extensive citations. Many of these are included in the edited versions in this Casebook. However, complete citations are often omitted and references omitted or condensed without editorial indications.
Editorial marks in court opinions are as follows:
Omissions from text are indicated by a series of four asterisks: * * * *
Additions to text are enclosed by curly brackets: { }
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Table of Contents
About the Author
Notices
About CALI eLangdell Press
Preface
CHAPTER ONE: AN INTRODUCTION TO CONSTITUTIONAL LAW AND THE ISSUE OF STATE ACTION
I. Introduction
II. Constitutional Provisions
A. Fourteenth Amendment
B. First Amendment
C. Fifth Amendment
D. Thirteenth Amendment
III. The “Civil Rights Cases”
IV. Toward a Doctrine of State Action
Marsh v. Alabama
Shelley v. Kraemer
Notes
V. State Action in the Civil Rights Era
Burton v. Wilmington Parking Authority
Moose Lodge v. Irvis
Notes
VI. A Synthesis of State Action
Note: Batson
Edmonson v. Leesville Concrete Company, Inc.
Notes
VII. Reconsidering the Civil Rights Cases
The Civil Rights Cases
CHAPTER TWO: INTRODUCTION TO CONSTITUTIONAL INTERPRETATION AND JUDICIAL REVIEW
I. A Basic Constitutional Timeline
II. Judicial Review
Marbury v. Madison
Notes
III. Constitutional Interpretation
A. Originalist Theories
B. Pragmatic Theories
C. Evolutive Theories
Notes
CHAPTER THREE: SLAVERY AND RACIAL EQUALITY
I. Constitutional Equality Before the Reconstruction Amendments
II. Litigating Slavery and Equality Before the Reconstruction Amendments
Prigg v. Pennsylvania
Scott v. Sandford
Notes
III. Early Cases Applying the Reconstruction Amendments
Strauder v. West Virginia
Notes
Plessy v. Ferguson
Notes
CHAPTER FOUR: RACE AND EQUAL PROTECTION
I. Toward Strict Scrutiny
A. Carolene Products, Footnote Four
B. The Japanese Internment Cases
Hirabayashi v. United States
Korematsu v. United States
Notes
II. Dismantling Plessy in Education
State of Missouri ex rel. Gaines v. Canada
Sweatt v. Painter
Brown v. Board of Education of Topeka
Bolling v. Sharpe
Brown v. Board of Education of Topeka (Brown II)
Notes
Cooper v. Aaron
Note: Limiting Brown
III. Evaluating Racial Classifications
Note: Strict Scrutiny
Loving v. Virginia
Notes
IV. Neutral Classifications?
Yick Wo v. Hopkins
Washington v. Davis
Arlington Heights v. Metropolitan Housing Dev. Corp.
Notes
V. Affirmative Action
A. The Standard of Scrutiny
Note: Bakke
Note: Fullilove and Wygant
City of Richmond v. J.A. Croson Co.
Adarand Constructors, Inc. v. Peña
Notes
B. Diversity and Education
Grutter v. Bollinger
Note: Gratz v. Bollinger
Parents Involved in Community Schools v. Seattle School District No. 1
Fisher v. University of Texas at Austin (Fisher I)
Note: Fisher on remand in the Fifth Circuit
Fisher v. University of Texas at Austin (Fisher II)
Notes
C. “Affirmative Action” and the Political Process
Schuette v. Coalition to Defend Affirmation Action By Any Means Necessary (BAMN)
Cooper v. Harris
Notes
CHAPTER FIVE: NONRACIAL CLASSIFICATIONS AND EQUAL PROTECTION
I. Rational Basis Standard as Default
Railway Express Agency, Inc. v. New York
Dandridge v Williams
Notes
II. Sex/Gender Classifications
A. Early Cases
Note: Bradwell v. Illinois
Note: Minor v. Happersett
Goesaert v. Cleary
B. Developing Intermediate Scrutiny
Reed v. Reed
Frontiero v. Richardson
Craig v. Boren
United States v. Virginia (VMI)
C. Sex/Gender and “Difference”
Note: Feminist Theories
Sessions v. Morales-Santana
Notes
III. Other Classifications
A. Illegitimacy, Age, and Language
Note: Illegitimacy
Note: Age
Hernandez v. New York
Notes
B. Classifications Based on Animus
United States Dept. of Agriculture v. Moreno
City of Cleburne v. Cleburne Living Center
Notes
Romer v. Evans
CHAPTER SIX: FUNDAMENTAL RIGHTS AND EQUAL PROTECTION
I. Education
San Antonio Independent School District v. Rodriguez
Plyler v. Doe
Notes
II. Voting
Reynolds v. Sims
Harper v. Virginia Board of Elections
Bush v. Gore
Richardson v. Ramirez
Notes
III. Travel
Attorney Gen. of New York v. Soto-Lopez
CHAPTER SEVEN: THE PRIVILEGES OR IMMUNITIES CLAUSE
Saenz v. Roe
Notes
The Slaughter-House Cases
CHAPTER EIGHT: INCORPORATION AND FUNDAMENTAL RIGHTS
McDonald v. City of Chicago
Notes
CHAPTER NINE: THE SECOND AMENDMENT
District of Columbia v. Heller
Caetano v. Massachusetts
New York State Rifle and Pistol Ass'n v. Cuomo
Notes
CHAPTER TEN: UNENUMERATED RIGHTS AND DUE PROCESS
Lochner v. New York
Meyer v. Nebraska
Pierce v. Society of Sisters
Notes
Griswold v. Connecticut
Roe v. Wade
Washington v. Glucksberg
Note: Bowers v. Hardwick
Lawrence v. Texas
Notes
Note: Casey
Note: Minors and Abortion
Whole Woman’s Health v. Hellerstadt
CHAPTER ELEVEN: LIBERTY, DUE PROCESS, AND EQUAL PROTECTION
I. Equal Protection and “Privacy”
Skinner v. State of Oklahoma, ex. rel. Williamson
Eisenstadt v. Baird
Notes
II. Same-Sex Marriage
United States v. Windsor
Obergefell v. Hodges
Notes
CHAPTER TWELVE: STATE CONSTITUTIONS
I. General Principles
II. Examples
Education
Disability
“Sodomy”
Minors and Abortions
Same-Sex Marriage
Notes
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CHAPTER ONE:AN INTRODUCTION TO CONSTITUTIONAL LAW AND THE ISSUE OF STATE ACTION
I. Introduction
The doctrine of “state action” is integral to American Constitutional law. With one notable exception, the United States Constitution protects individual rights only against incursions by governments, whether federal, state, or local. Generally, the Constitution does not govern the “rights” of individuals arguably infringed by other individuals (or corporations).
Note that while the term generally used is “state action,” “state” here means all levels of government. Thus, “state action” can be the federal government or a municipal government, as well as a state.
Sometimes, the question of “state action” is relatively simple.
Consider whether a judge would be likely to grant or deny a motion to dismiss for failure to allege sufficient state action, if the plaintiff alleged a violation of the First Amendment:
A.The California Legislature passed a statute that violated the plaintiff's First Amendment right to freedom of speech.
B.The City of Austin, in Texas, passed an ordinance that violated the plaintiff's First Amendment right to free exercise of religion.
C.The Department of Prisons of Nevada, a state administrative agency, promulgated a regulation that violated plaintiff's right to receive mail in violation of the First Amendment.
D.The President of the United States issued an Executive Order that violated the plaintiff's First Amendment right to free exercise of religion.
E.Federal Bureau of Investigation officers arrested plaintiff in violation of her First Amendment rights to assembly.
F.A principal at a public school suspended plaintiff, a student, for wearing "inappropriate attire" in violation of her First Amendment rights to "symbolic speech."
G.A father at the dinner table told his son to be quiet in violation of the child's First Amendment rights to freedom of speech.
H.A rider on the subway shouted and blocked the way of subway performers in violation of their First Amendment rights to “artistic expression.”
I.A salesclerk in the Abercrombie & Fitch store on Fifth Avenue in New York asks a customer wearing a head covering to leave the store in violation of her First Amendment rights.
Determining whether or not an action qualifies as “state action” is not always so simple, as the cases in this Chapter demonstrate.
II. Constitutional Provisions
Let’s begin by examining the text of some specific Constitutional provisions. Look for the “state action” requirement, recalling that this includes the federal government.Is the language in some provisions more explicit than in others? Is it absent in any?
A. Fourteenth Amendment
Section 1 of the Fourteenth Amendment provides:
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.
B. First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
C. Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
D. Thirteenth Amendment
Section 1 of the Thirteenth Amendment provides:
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.
III. The “Civil Rights Cases”
Both the Thirteenth Amendment and Fourteenth Amendment became part of the Constitution after the Civil War (1861-1865).The Thirteenth Amendment does not have a state action requirement: slavery and involuntary servitude are prohibited.
Along with the Fifteenth Amendment (“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”), these Amendments are also known as the “Reconstruction Amendments.”
Each of the Reconstruction Amendments also includes a section that states that “Congress shall have the power to enforce” the Amendment by “appropriate legislation.”
Congress passed the Civil Rights Act of 1875 forbidding racial discrimination in public accommodations including trains, hotels, theaters, and inns. Individuals who discriminated on the basis of race could be subject to civil and criminal penalties.
In five consolidated cases known as theCivil Rights Cases, 109 U.S. 3 (1883), the United States Supreme Court held that the Civil Rights Act of 1875 was unconstitutional. It held that Congress did not have the power under either the Thirteenth or Fourteenth Amendments to prohibit racial discrimination by private persons. In short, the Court held that the Thirteenth Amendment’s prohibition of slavery did not include racial discrimination and that the Fourteenth Amendment only reached “state aggression” not the “wrongful acts of individuals.”
TheCivil Rights Cases are difficult; we will return to the case at the end of this Chapter. But as you examine the next cases, notice whether the Court considered the precedent of theCivil Rights Cases.
IV. Toward a Doctrine of State Action
Marsh v. Alabama
326 U.S. 501 (1946)
Black, J., delivered the opinion of the Court in which Douglas, Murphy and Rutledge, JJ., joined. Frankfurter, J., filed a concurring opinion. Reed., J., filed a dissenting opinion in which Stone, C.J., and Burton, J., joined. Jackson, J., took no part in the consideration or decision of the case.
Mr. Justice Black delivered the opinion of the Court.
In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post-office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: ‘This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.’ Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, Section 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. The State Supreme Court denied certiorari, and the case is here on appeal under Section 237(a) of the Judicial Code, 28 U.S.C. s 344(a).