CON LAW II OUTLINE COLBY, SPRING 2014

Standards of Review
  • Rational Basis:
  • Standard of Review: A law will be upheld if it is rationally related to a legitimate government interest.
  • Legitimate government interest: The state’s goal does not need to be the actual purpose—any conceivable legitimate purpose is sufficient.
  • Rationally related: Means just need to be a reasonable way to accomplish the objective
  • To Survive must:
  • This test is extreme deferential to the government
  • The Challenger has an enormous burden of proof
  • Intermediate Scrutiny:
  • Standard of Review: A law will be upheld if it substantially related to an important government interest
  • Must be more than just a legitimate goal for the government to pursue: court has to regard the purpose as important, but less than compelling
  • Only has to be a good way to achieve the objective: but not necessarily the best way
  • To Survive must: Government has the burden of proof.
  • Strict Scrutiny:
  • Standard of Review: A law will be upheld if it is narrowly tailored and necessary to achieve a compelling government interest
  • Government interest must be more than legitimate—has to be vital, crucial, compelling
  • Make sure you look to the actual purpose
  • Narrowly tailored—cannot be overly broad or underinclusive
  • To Survive must:Requires proof of the least restrict or least discriminatory alternative
  • For equal protection claims of suspect class: Statutory classifications that give distinct classifications to a group that has historically been the victim of discrimination are subject to strict scrutiny
  • Burden: On gov/

I. THE BILL OF RIGHTS/INTRODUCTION

From Con law I to Con Law II—The Bill of Rights:

The Bill of Rights (Relevant Provisions):
Amendment I: Religion (Establishment and Free Exercise Clause); Free Speech; Freedom of the Press; Right to Assembly; Right to Petition
Amendment V: Double jeopardy; self-incrimination; due process; takings
Amendment XIV: Equal protection, Due process incorporated bill of rights against the states
  1. Early History:
  2. Federalism and adoption of bill of rights:
  3. Federalism and separation of powers: the states rights were designed to protect the rights of the people
  4. Government must be limited to protect the rights of the people
  5. Divides up power btw federal and state governments, then between branches of the federal government
  6. The Anti-Federalist/ Federalists debate:
  7. Federalists:
  8. Believed that the bill of rights was neither a necessary nor a good idea
  9. Thought that creating enumerated right would make it so if something was not enumerated it would not be a right.
  10. Believed that the constitution protected the rights of individuals indirectly by limiting the powers of the federal government and the addition of a bill of rights would suggest that the federal governments powers were not really limited.
  11. Flaws in argument:Although the federal government was limited, congress could enact a bill impairing a personal right.
  12. Anti-federalists:
  13. Opposed ratification of the Const, were concerned that the fed gov/ would be too powerful and pose a threat to individual liberties.
  14. Condition the acceptance of the constitution on the adoption of the bill of rights.
  15. The adoption of the bill of rights: The first thing that the first Congress of the U.S. did was adopt a bill or rights in 1781, these rights were viewed as being extremely important and so framed in vague terms.
  16. Interpreting the Constitution: Originialist vs. Non-originalist:
  17. Originalist: Constitution means today what it meant when it was ratified, otherwise would be interpreted unjustly
  18. The constitution is a written contract: Letting judges make up the rule as they go along would be taking away the meaning b/c it is outside of the contract
  19. Same question same answer, unless amendment: Regardless of the date, the same question must produce the same answer unless there is an amendment.
  20. Non-orignalist:Constitution was intended to be interpreted and to remain valid as times changes and adapt to problems and crises that did not exit at the time of the drafting
  21. Not bound to 18th century morals: The framers did not bind us to the 18th century norms
  22. Constitution was designed to change over time: The constitution was meant to change over time, and to reflect changing values in a changing world
  23. This can be shown by some doctrinal evolutions: E.g., equal protection (segregation, most clearly in freedom to speech, etc.)
  24. Theories behind the law: Natural law vs. Positive law:
  25. Natural Law:Universal “law like standards” for right and wrong never change, regardless of what statutes may say any particular time or place
  26. God given rights: We have rights that are given to us by god that would violate natural law if these rights were taken away
  27. Barron: Rejected the natural law argument
  28. Positive law: Limits the power to apply the judgment of authorized law-makers, rather than making the law themselves.
  29. Different arguments you can make about the constitution:
  30. Historical argument: Bill of rights was drafted only b/c of concerns of anti-federalists, meant specifically to address their concerns about the federal government.
  31. Structural argument: BOR is pact btw the people and the federal government they’ve agreed to create
  32. Power of the states is note created or limited in the Const.
  33. Textual Argument: Art. I, Sect. 10, limits on state; but very explicit in limiting specific acts; what is not explicit restricted is reserved to the states

At First BoR not incorporated:

  1. At first not incorporated b/c of strict constructionism:
  2. Barron v. Baltimore(Marshall): The bill of rights was only intended to apply against the actions of the federal gov’t and had no effect on the actions of the state
  3. Textual argument: If Congress instead the Amendments to be applied against the states they would have expressly done so in the const.
  4. Leaning towards positive law: American law was leaning heavily towards positive law—job of judges was to decide if the state action violated the natural rights, but rather if it violated the text of the bill of rights.
  5. Policy wise this had terrible consequences: Lead to egregious violations of human rights, such as slavery b/c the states did not have to abide by the BOR.

Privileges and Immunities:

  1. Historical context of the Slaughter House Cases:
  2. Emancipation Proclamation(1863): After emancipation proclamation, defeated confederacy was forced into reintegration w/ union and forced to abolish slavery
  3. Radical Republications take power in congress(1866):they are aggressively anti-slavery, pass a civil bill of rights in 1866 and Johnson vetoes it
  4. Congress then passes 14th Amendment: Giving blacks civil rights and making it clear that congress does have these powers
  5. Only TN ratifies the Amendment
  6. Republicans strikes back w/ Reconstruction Act of 1867:Placed the South under military rule
  7. 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
  8. All eventually gave in by 1868, 1870.
  9. The Slaugher House Cases (1873)
  10. The privileges and immunities clause did not apply to the states: The privileges and immunities clause protects rights under the federal const, not the privileges of the citizens of the sates
  11. The argument behind the case:
  12. Majority:
  13. Contextual argument behind the 13th Amendment—it protects more than just blacks, but racial slavery
  14. The 14th Amendment—point of this amendment is to protect citizens of the federal government not the states, this view repudiated natural law arguments.
  15. The Dissent:
  16. Privileges and immunities encompass natural rights: It was indented to give effect to inalienable rights of declaration of independence (const. just recognizes these, it does not create them).
  17. Effect of this case: This case effectively ended the privileges and immunities litigation.
  18. Privileges and immunities in the modern era:
  19. Saenz v. Roe (1999): Cannot limit inter state travel
  20. Holding/Rule:Privileges and immunities clause protects “the rights of the newly arrived citizens to the same privileges and immunities enjoyed by other citizens of the same state, a right is protected not only the the new arrival’s status as a state citizen but also her status as a citizen of the U.S.
  21. Policy: The purpose of the clause is that a citizen of the US can of his own volition become a citizen of any state of the union by a bonafide residence there in with the same rights of other citizens of that state.

Incorporation:

  1. Due process clause protects against state intrusion: The privileges and immunities never ended up doing this.

Due Process Clause: “Nor shall any state deprive any person of life, liberty, or property without due process of law”
  1. Historical development of incorporation:
  2. Quincy RR Co. (1897) Fifth amendment protections extended:The due process clause prohibited taking private property for public use w/o just compensation, a form of protection that is guaranteed by the 5th Amendment.
  3. Twining (1908) the first 8 Amendments are held to apply against the states
  4. Palko v. Connecticut (1937): The court did not extend the double jeopardy clause of the due process clause against the states
  5. Cardozo’s (majorities) test for which rights are included under the DP clause:
  6. Due process only protects those rights that are:
  7. (1) Implicit in the concept of ordered liberty
  8. (2) Essential to a fair and enlightened system of justice, (AND)
  9. (3) So rooted in the traditions and conscience of our people as to be ranked as fundamental.
  10. Black dissent: argued for total incorporation
  11. Total incorporation: All rights in bill of rights are protected by the due process clause
  12. Adamson v. CA (1947)(holding overturned in Griffin): Did not incorporate the privilege against self-incrimination applicable to the states.
  13. Concurrence:(Frankfurt) did not see the due process clause as the adequate way of extended the bill of rights
  14. Dissent:(Black): The history of the bill of rights show that it was suppose to apply against the states, and there should be total incorporation.
  15. There is a debate here about total and selective incorporation: the court has taken the approach of selective incorporation, but nearly all of the Amendments have been incorporated except the right against grand jury indictment, right of jury in civil case, quartering troops, and excessive fines
  16. McDonald(2010) Jot-for-jot incorporation:
  17. Incorporation test: The court must decide whether the right is fundamental to our scheme of ordered liberty or deeply rooted in this nations history.
  18. If a right is incorporated it is incorporated Jot-for-Jot: Incorporated bill of right protections against the state under the 14th Amendment according to the same standards that protect the personal rights against federal encroachment.

II. SUBSTANTIVE DUE PROCESS

Difference between procedural and substantive due process:

  1. Procedural due process: Refers to the government obligation to provide adequate procedural protection b/f deprive a person of some important interest.
  2. Substantive due process: Concerns the extent to which the liberty mentioned in the due process clause is protected form government deprivation, wholly aside form the fairness of the procedures that the government provides b/f the deprivation

Substantive due process and economic liberty:

  1. The Lochner Era(Bakery case)(1905):
  2. Placed drastic limits on the ability for states to regulate economic activity:
  3. The key distinction was reasonable exercise of police power vs. personal liberty:
  4. Reasonable use of state police power (ok to regulateif there is a rational basis for doing so): These are powers broadly stated w/o specific limitation that relate to the health, morals, and general welfare of the public
  5. Interference with the right to contract(not ok and is subject to strict scrutiny):unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.
  6. (did strict scrutiny even though saying rational basis)
  7. The dissents:
  8. Harlan: Const. right contract protected by the DP, but the Court should not second guess the state legislature on balancing this with public health and safety
  9. Judicial activism: In trying to protect Const. rights, courts is trampling the citiznes rights
  10. Holmes:
  11. The court is pushing its economic theory Laizee Faire economics on the people: Economic theories are trendy, come and go and should only be enacted by legislatures and not read into the constitution.
  12. Freedom to contract is not a fundamental liberty b/c: It is an old fad and progressivism is the trend that is being adopted by the legislatures
  13. The next 30 years multiple laws were struck down on under Lochner:
  14. Labor laws: struck down laws regarding unions, min. wage and safety standards
  15. Muller v. OR: Court upheld labor standard in factories dominated by woman employees b/c women were dependent on the gentleman in the legislatures to protect their frail, weak condition. Unlike men, women were not considered as capable of entering freely into Ks.
  16. Problem with Lochner:
  17. Its dishonest:Says that it would not second guess the legislature, but then does
  18. Stands in the way of democracy: it puts the opinions of the un-elected justices ahead of the opinions of the people that e elected and accountable to the people.

Modern Economic Regulation:

  1. The end of the Lochner basis and adoption of a rational basis standard:
  2. Historical note: This all occurring during the new deal and there is tension btw the court and the executive. FDR has devised a scheme to pack the court, which along with some people dying at a good time has made way for a new court since the Lochner era.
  3. Nebia v. NY (1934)(New deal legislation regulating the price of milk)
  4. RationalBasis Review:If the laws passed are seen to have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.
  5. Lochner overturned by West Coast Hotel(1937): Hotel violates state minn. wage law
  6. As long as regulation rests upon a “rational basis” the court will uphold it
  7. Court won’t put itself in position to second-guess state laws
  8. No longer standing in the way in the name of protecting liberty of K
  9. Justice Roberts switches sides to the majority—“switch in time that saves the nine.”
  10. U.S. v. Caroline Products Co.(1938)(test to determine if should be subject to strict scrutiny):
  11. Justice Stone’s Famous Footnote 4:Lochner era is over—now presumption of constitutionality for state law
  12. Courts won’t defer to legislature (greater judicial scrutiny) where does one of the following:
  13. (1) Laws violate specific bill of right:
  14. The courts to aggressively enforce these rights—they are in the constitution b/c framers didn’t think the political process would be enough (democracy is not the end it’s the means)…framers already made this judgment.
  15. (2)Laws are directors at religious, national or racial minorities: Minorities cannot protect themselves through the political process because it’s a minority (OR)
  16. (3)Situations where the political process might break down, or where it won’t protect some people: Where districts are not apportioned well and political process will not help.
  17. Default rule is that the court should not check legislature: The general rules is that people should rule themselves, but need to protect those people that can be outvoted
  18. The modern approach on economic regulation (Lee Optical Co. 1955):
  19. The court will uphold most laws under footnote four if rational basis: Legislation is presumed to be valid and will be sustained if the regulation is rationally related to the legitimate state interest
  20. Almost any statute upheld: This is highly deferential and leaves it to the legislature to weight the pros and cons—in practice a court has not struck down an economic regulation since FDR’s speech (more than 75 years ago).

III. PRIVACY AND CONTRACEPTION: RIVIVAL OF SDP FOR NONECONOMIC LIBERTIES

Historical development:

  1. During Lochner period, court used its reasoning toprotect rights that were not fundamental or noneconomic:
  2. Could not restrict teaching foreign languages in school(Meyer v. NB 1923): Liberty protected by the due process clause included the right for an individual to contract to engage in any of the common occupations of life, to acquire its useful knowledge, to marry, establish a home and bring up children, to worship god according to the dictates of his/her own conscience…
  3. Court struck down law requiring children to go to public school (Pierce 1925): Law forbidding teaching foreign languages to children is stuck down because of Lochner reasoning.
  4. Uses Lochner again: parents have fundamental right to dictate the education of their children, even if not enumerated in bill of rights.
  5. Definition of “liberty:” Freedom to contract, marry, acquire knowledge
  6. Today we have kept this precedent, but we rely on foot note four:

Forced Sterilizations:

  1. The court applies strict scrutiny to forced sterilization cases:If you force sterilize one class of people and not the other it is made as invidious treatment as if you treated one person oppressively. Skinner.

Contraception and Abortion:

  1. Contraception:
  2. Griswold (1965): Court strikes down law that criminalized the use of contraception by married couples.
  3. Majority: The law does not survive strict scrutiny b/c the purpose of the statute was to control or prevent activities that are constitutionally prohibited for the sate to regulated and may not be achieved by means which sweep unnecessary broadly and thereby invade the area of protected freedoms.
  4. Griswold brings up a debate re: how to determine if certain rights are fundamental:
  5. Douglas(Majority):
  6. Can protect rights that are in the penumbras of the bill of rights: Can read the bill of rights to go beyond their literal meaning to extend them to things such as privacy.
  7. Douglas is rejecting the court’s ideology in Lochner: Douglas believed that Lochner was realizing substantive due process and refused to accept the idea that the court can adopt substantive rights that were not in the text of the bill of rights.
  8. Goldberg(concurrence):
  9. Stick to history: Our fundamental rights are those rights which were given to use at the founding.
  10. Problem with this view: If you take history to be your guide you are going to be stuck with the ideologies that were around at the drafting and this does not take into account that our values have changed
  11. Harlan:(the winner):
  12. Living tradition:History is important, but there is a living tradition that allows for the court to protect new rights that change as societal values change
  13. Black & Stewart (Dissent):
  14. Sticks w/ footnote four.
  15. After Griswold:
  16. Eisenstadt v. Baird(1972) (invalidated statute that made it illegal to distribute contraceptives to married couples):
  17. Extended Griswold to apply to single couples: Married or single individuals are free from unwarrantedgovernmental intrusion into matters so fundamentally affecting a persona s the decision of whether or not to beget a child.
  18. This uses Harlan’s methodology: it is common law, i.e., it looks to the past for the answers but it also allows for the law to move into new areas whether the laws can be seen to cover unforeseen circumstances.

Abortion: