Con Law II Outline

Colby, Spring 2007

I.Introduction

A.From Con Law I to Con Law II – The Bill of Rights

Notes:

Federalism and separation of powers designed to protect individual liberty and freedom
Government must be limited to protect the rights of the people
Divides up power btw federal and state gov’ts, then btw branches of the federal gov’t (which government of limited powers, as is Congress and the President)
For many people in 1787 (“anti-federalists”), Madison’s vision wasn’t enough to protect individual rights; conditioned their acceptance of the ratification on the passage of a Bill of Rights
First thing the 1st Congress does is draft and pass a Bill Of Rights (BoR)
10 of proposed amendments quickly ratified, became part of Constitution in 1781
Rights that framers thought were so important are phrased in very vague terms

Views of the Constitution: Originalist v. Nonoriginalist

Originalist: Constitution means today what it meant when it was ratified, otherwise would be interpreted unjustly
This is a written contract – letting judges make up the rule as they go along would be taking away the meaning
Same constitutional question must produce the same constitutional answer, regardless of the date
Nonoriginalist: constitution was intended to be interpreted, and to remain valid as time changes and adapt to problems and crises that didn’t exist at the time of drafting
Framers didn’t mean to tie us to the cultural norms of 18th century America
Same meaning it always had, but only because its always had a flexible meaning
Something that was allowed in 1791 may no longer be allowed today, as our notions of, say, free speech, have changed

Barron v. Mayor and City Council of Baltimore (US 1833)

Facts: B alleges illegal takings when state government diverts rivers in the harbor which make his wharf completely useless
Court (Marshall): BoR was intended to apply only to actions of the federal gov’t (no effect on the actions of the state gov’ts)
Historical argument: BoR was drafted only b/c of concerns of anti-federalists, meant specifically to address their concerns about the federal government
Structural argument: BoR is pact btw the people and the federal government they’ve agreed to create
Power of the states is not created or limited in the Constitution
Textual argument: Art. I, Sect 10, limits on state power; BUT very explicit in limiting specific acts; whatever is not explicitly restricted is reserved to the states

Notes:

Marshall was for robust federal government, but here, in one of his last opinions, he guts the power of the federal constitution over the states, federal power, and federal judiciary’s power

This is very unlike Marshall
Opinion leaves states free to take property without compensation, to coerce confessions, to limit speech, etc.
Goes out of his way to say that this was a very easy case
State courts, before this opinion, say that the BoR does limit state power
Why does he do this? Two possible readings of the Constitution:
Broad reading:
BoR should apply to states, except for 1st AM, which specifically says “Congress shall make no law,” while the rest say “No person shall be compelled”
Marshall’s reading:
Broad reading runs up against Marshall’s historical, structural, and textual arguments, which are pretty strong
These individual rights were not endowed by a constitution; they are self-evident (natural rights)
Governments are bound by both positive and natural law
By this time, American law evolved to lean heavily on positive law
Job of judges was not to decide if state action violated natural rights, but rather whether it violated the text of the BoR
Marshall suddenly frees the states from the obligations enumerated in the BoR
Egregious violations of human rights resulted from this ruling (slavery, etc.)

B.Privileges or Immunities

Notes: Historical context:

1863, after Emancipation Proclamation, defeated confederacy was forced into re-integration w/ union and forced to abolish slavery.
Puppet governments set up, dictate to southern states
Conventions of loyal Unionists ratify the Emancipation Proclamation
Radical Republicans take power in Congress (aggressive anti-slavery), passed a civil rights bill of 1866
Johnson vetoes, claiming it goes beyond Congress’ power
Congress then passes 14th AM; giving blacks civil rights, and making it clear that Congress does have these powers
Only TN ratified the amendment of the southern states – southern states then passed “black codes” on the “freed” slaves
Republicans struck back w/ Reconstruction Act of 1867, placed south under military rule
Escape only permissible for those states which set up new civil governments, granted voting rights to blacks, and took pledge of allegiance to the Union
All eventually gave in, by 1868, 1870

Slaughter-House Cases(US 1873)

Facts: Butchers suing because of monopoly on butchering business in New Orleans, based on LA state law. Claimed 13th and 14th AMs should apply because not being treated equally, should be able to practice their trade
“Involuntary servitude” –law is forcing them to do something they don’t want to do (can’t be butchers)
Court:
13th AM: Textual argument – no specific grant
Historical argument: this AM protects more than just blacks, but it’s particularly about racial slavery
Involuntary servitude put in AM because there were many different shades of slavery taking place in black code states
14th Amendment: Point of this AM is to protect citizens of federal government, not the states
Narrowly interpreted: only those rights which owe their existence solely to the American Constitution (doesn’t include natural law rights)
Dissent: “Privileges or immunities of citizens of the US”: purpose was to use general language to protect a broad range of rights, including natural (fundamental) rights
Intended to give effect to inalienable rights of Declaration of Independence (Constitution just recognizes these; it doesn’t create them)
Art. 4, §2: P&Is designated in the AM are already defined in the Constitution, and those are the P&Is which belong to the citizens of all free governments
Go to case law for historical definition:
Justice Washington’s opinion in Corfield: privileges of men of all free nations = natural privileges
Majority’s reading makes the clause on P&Is redundant
If it’s really this meaning, it’s making unconstitutional what’s already unconstitutional (states can’t pass laws that take away federal rights)

Notes:

The 2 readings:

(1) “Citizens of the US” modifies the P&I (majority)

Twisted reading - concern is with preserving federalism, would rather err on the side of interpreting this AM as adding and doing nothing than err on the side of letting it revolutionize constitutional law
Only rights protected by the 14th Amendment are those granted under the Constitution, not those natural rights granted to all individuals
Don’t want to undertake responsibility for civil rights of all people under state gov’ts
Rely on history. Even if language of the clause would suggest a broader meaning, should read it more narrowly to more closely follow the drafters’ intent (“originalist” argument)

(2) “Citizens of US” modifies who is being protected (dissent)

Broad themes mentioned which go beyond original reasons for enacting the AM in the first place, and it should be interpreted to go this far.
Even if accepting the originalist view methodology, not clear that the court’s getting that original meaning right at all
Opposite appears to be true.
Rep. Bingham (author of the 14th AM): Point is to protect by national law... the inborn rights of every citizen
Sen. Howard (sponsor of 14th AM): Should protect against state intrusion of the first 8 AM rights, AND all rights described by Justice Washington in Coryell
Right back to Baron v. Baltimore (states returned to acting how they did, enacting Jim Crow laws, etc.)
Slaughter-House is the end of the Privileges and Immunities clause

Saenz v. Roe(US 1999)

Facts: CA limited welfare benefits to new residents; Roe argued this was putting a limit on interstate travel
Court: Finds right to travel between states in 14th AM for first time as P&I (1st time state law is struck down under the P&I clause.)
Looked like Slaughter House was being overruled, but this is actually a very narrow decision – right to travel among the states is one of those rights that owes it existence to the federal government, so it is applicable to the states.
This was really a rare opportunity to apply S-H
Thomas’ dissent:
S-H is wrong, everyone knows it’s wrong, P&I does protect all fundamental rights
Is willing to get rid of a century of precedent to bring the meaning back to what he thinks is the original
Law remains from S-H

C.Incorporation

Constitution still protects against intrusion; it’s just that P&I clause isn’t the one that protects it: Now it’s Due Process

Palko v. Connecticut (notes case, US 1937)

Issue: Does protection from double jeopardy apply to the states?
Court: Not a right extended to the states under the Due Process clause
Cardozo’s test for which rights are included under the DP clause:
Is it a fundamental right? “Of the very essence of a scheme of liberty?” Can we can imagine a free and just society without this right?
Not: privilege self-incrimination, right to trial by jury
Yes: right to counsel, etc.
The kind of double jeopardy which P was exposed to is not that bad
Here, DP doesn’t “incorporate” the BoR. Rights in BoR are only protected because they’re an essential part of liberty
Some over lap between D.P and BoR, but not really related to each other
NOT a claim of natural law
Black’s dissent:
Total incorporation position: all rights in BoR are protected by the DP clause
Doesn’t believe there are natural rights other than what is in the BoR:
Degrades constitutional safeguards of the BoR (Cardozo’s vision is an affront to liberty)
Incorporating less or more than the BoR is not what framers wanted (framers thought P&I clause would do that, but getting it in through DP is more important than not getting it in at all)

Adamson v. CA (notes case, US 1947)

Majority: no grounds for making privilege against self-incrimination applicable to states

Frankfurter’s and Harlan’s concurrence:
Envision a much broader set of rights, both in and outside the BoR
Evolutionary potential for the body of rights protected. Should include rights newly recognized in society
Disagree with Black, think the DP should be much broader than the BoR

Black’s dissent:
Full incorporation is what original framers wanted
Natural law theory gives judges way too much power
Notions of federalism, doesn’t want to interfere with the ability of the state governments to do what they want, even if it doesn’t violate the BoR

Models adopted by Supremes throughout history:

Cardozo: some, but not all BoR rights are included, and there are others outside. Sometimes a right is only incorporated in part (i.e, double jeopardy – depends on severity)

Black: The whole BoR, and nothing but the BoR

FF/ Harlan: Half and half – bigger body of rights than Cardozo thinks. Not limited to history, can adapt to current values.

Murphy: DP includes all of BoR and lots of other rights too

Brennan: Most of BoR and lots of other stuff too (like Cardozo & FF, but almost all BoR are included.) Disagrees with Cardozo that “really bad” instances of BoR are violations. All violations, even minor ones, violate the DP clause

Very Conservative: only BoRs are protected, and only those dealing with procedural safeguards, like 6th AM right to an attorney in a criminal case. No justices have taken this position, but many legal thinkers have.

Arguments for the Justices views:

Cardozo:

Black:

Why would framers have bothered to enumerate all the BoR and then put another clause in there --- seems they didn’t think the DP would cover all the BoR
Isn’t this view judicial activism because it’s defining more narrowly the scope of rights that the founders intended?
Black: this isn’t a federalism issue. The issue is, how much power do the states have vis a vis the people?
How much power do they have over the people? This power is being taken away, but not given to the federal government – it’s given to the people. It’s an individual rights concern, not a federalism one

FF/ Harlan:

Harlan: we’ve put the states in a constitutional straightjacket w/r/t their own development of criminal justice
Ex: civil jury trial required where the amount in controversy is more than $20... is this really fundamental?
Must go case by case to determine whether it’s a 14th violation for that particular incursion
FF: For Black and Murphy’s views: what’s really going to happen here to liberty?
Don’t want to water down fundamental protections... if we say a 12-person jury is fundamental. This waters down what we would consider fundamental

Murphy:

There are fundamental rights included in the BoR, but the framers could not have foreseen processes necessary in the future
Legislative history meant it to include the first 8 amendments
But who’s going to decide what a fundamental right is outside of the BoR?
Seems to encompass everything the framers intended

Brennan:

Who’s going to decide what a fundamental right is outside of the BoR?
The Supreme Court
This is what concerned Black – didn’t want judicial activism
May be common knowledge – determinable and defined, so we don’t have to worry about judges imposing their own personal values on the rest of us
But is this true? Is it common knowledge that abortion is an absolute right?

Conservative:

Doesn’t say “no state shall deprive citizens of life, liberty, or property”.... it says “without due process of law”
How comfortable are we with the idea that states can deprive us of life, liberty or property as long as they give us some process?
But, most states have overlap in their state constitutions with the federal constitutions
Isn’t this view judicial activism because it’s defining more narrowly the scope of rights that the founders intended?

Notes:

Brennan’s view has prevailed: rights have to be incorporated in full
Rights must only be fundamental in the sense that they’re fundamental in our society today
Case by case, Court has incorporated almost all BoR rights (not 7th, 3rd, indictment, etc)
Incorporation: was a misnomer for FF and Harlan, and Cardozo. They thought there was some overlap, but it wasn’t incorporated in any meaningful way
Today, incorporation is not a misnomer – most have been entirely incorporated against states
Other rights are found to be constitutionally protected, even though not specifically written into BoR
Because of incorporation that we have the modern doctrine of substantive DP
A lot of rights in the BoR don’t seem to fit into DP at all (aren’t procedural) – freedom of speech, religion, assembly, etc. (these seem more substantive)
Freedom of speech is a substantive right that can never be taken away from you, even with “Due Process”

II.Substantive Due Process

The Lochner Era

Substantive Due Process: Notion that DP clause protects substantive rights in addition to procedural ones

Though P&I seems like a more logical place to put “SDP”, Slaughter-House cases read the P&I clause of the 14th AM out of the constitution all together
No where else to put the intent of the framers under DP (2nd best solution)
BUT, SDP was recognized well before S-H and well before the 14th amendment
Many old state constitutions have DP clauses, and have long been understood to protect substantive rights

Wynehamer v. People (notes case, NY 18956)

Wouldn’t make sense not to interpret DP substantively (fundamental rights aren’t worth much if states can take them away so long as they went through the proper procedures)

Bill that takes away these rights should not be considered law, therefore not counted under the 14th amendment as “DP of law”

Dredd Scott v. Sanford

Court invalidates fed law that gives automatic freedom to slaves transported into free states (this would be taking away property from slaveholders)
Striking example of the dangers of SDP
During slavery, both sides relied on SDP (anti-slavery thought slaves were people, who should not be deprived of life or liberty; pro-slavery thought this was depriving owners or property)

19th Century: Court begins to find a # of economic rights that fall within the scope of SDP

Lochner v. New York(US 1905)

Facts: NY sets maximum hours law for bakers working in NY.
Court: violation of the constitution (contract clause - right to contract for you labor (not a BoR, but one of the other “fundamental rights” swept within scope of DP))
Balancing:
Employers have right to hire for as many hours as they want; employees have the right to work as many hours as they want to work, though:
State has right to exercise (legitimate) police power
Ask: is this a reasonable exercise of the police power, or is it unnecessary and arbitrary (Rational Basis Review)
State’s grounds for passing the law:
(1) Valid labor law
Court rejects: bakers don’t need to be protected by state legislature; they are capable of negotiating for themselves
Court says they won’t second-guess the legislature’s opinion, but then they do just that
Might be claiming that it’s irrational and arbitrary to say that an employee can’t protect his own rights
Notion that there’s a level playing field with the baker and the owner (but management was in a position to oppress labor, especially in 1905)
State is now passing labor laws, safety laws, etc, becoming more involved to protect people and the economy from the industrial revolution
(2) Valid public safety law
State: shorter hours for bakers will lead to a safer food supply, which will lead to a healthier/safer public
Court rejects: clean, healthy bread does not depend on how many hours the bakers are working (though reports showed otherwise)
(3) Valid health regulation
Court rejects: relies on “common knowledge” that baking is not a dangerous profession like mining is, so it doesn’t need to be regulated by the state (reports show otherwise)
Court expressly says it will be deferential to the legislature, but it in fact is not (not RB here)
Dissent (Harlan):
Constitutional right contract protected by the DP, but Court should not second guess the state legislature on balancing this with public health and safety
Judicial Activism: In trying to protect Constitutional rights, Court is trampling on citizens’ states rights
Dissent (Holmes - Holmes’ most famous opinion)
This is really an economic theory (laissez faire economics) preferred by the rich and well-educated, (i.e. the Justices)
Economic theories are trendy, come and go, should only be enacted by legislatures, not read into the Constitution
Freedom to contract is not a fundamental liberty because:
Must be a deep rooted tradition and consensus among the people
The word liberty is perverted if it contradicts a voting majority, unless minds can differ about whether it is fundamental
Liberty of contract is an old fad that was popular when the Justices were young. Today’s fad is Progressivism and is being enacted properly through the state legislatures

Notes: