INTRODUCTION

  1. METHODS OF INTERP
  2. originalist
  3. Const. means today what it meant when drafted
  4. Const. as a written contract, changed only with Am.
  5. narrow role for judges
  6. same legal Q should always produce same legal A
  7. non-originalist
  8. Const. lang. purposefully broad to allow evolution of principles
  9. reflects changing societal values
  10. same legal Q can produce different legal A
  11. TYPES OF JUDICIAL SCRUTINY
  12. rational basis
  13. legitimate govt interest + law rationally related to that interest
  14. ex: Commerce Clause until 1995
  15. strict scrutiny
  16. compelling govt interest + law necessary to achieve that interest
  17. ex: dormant Commerce Clause
  18. WHY SCOTUS SOMETIMES DEFERS TO LEG.
  19. leg. better at evidence gathering
  20. courts limited (in theory) to 2 party interests
  21. leg. democratic and SCOTUS anti-democratic
  22. leg. more dynamic, easier to change leg.-made law than judge-made law
  23. INCORPORATION
  24. 14th Am. – “Nor shall any state deprive any person of life, liberty or property without due process of law.”
  25. Barron v. Baltimore (1833) (p. 527) (Marshall)
  26. facts – state govt. diverted stream, making P’s wharf unusable
  27. P argues – violates 5th Am. rights (takings clause)
  28. holding – B.O.R. only applies to fed govt, not state govts
  29. historical
  30. purpose of B.O.R. was to reassure Anti-Federalists of limited power of feds, they wanted to leave power with states
  31. structural
  32. Const. as pact between people and fed govt; not concerned with relationship between people and state govts
  33. textual
  34. Art I, § 10 lists exclusive limits on state govts (cannot coin money, declare war, etc.)
  35. Art I, § 10 explicitly says “states”
  36. in other places, default assumption that “govt” in Const. is fed govt
  37. note: ironic that Chief Justice Marshall writing this b/c a great Federalist and this decision gutted power of fed judiciary to enforce indiv. rights
  38. CompareBarronwith some State Court Decisions:
  39. historical – no leg. history on this point
  40. textual
  41. 1st Am. says “Congress shall make no law”
  42. but rest of Am. are in passive voice, so seem more comprehensive in scope
  43. ex: “no warrant shall issue without probable cause”
  44. natural law
  45. Declaration of Indep. describes inalienable rights, Framers believed some rights God-given
  46. note: one anti-B.O.R. argument was that these rights already understood/obvious and enumerating them would only limit them
  47. but legal culture changed from 18th cent. (natural law) to 19th cent. (positive law, with more limited role for judges)
  48. Palko v. Connecticut (1937) (p. 537) (overruled)
  49. issue – does double jeopardy clause apply to state govts?
  50. holding (Cardozo) – no
  51. not included in 14th Am. DP clause
  52. only include rights “implicit in the concept of ordered liberty” or “so rooted in the conscience and traditions of our people as to be ranked fundamental”
  53. doesn’t necess. include all B.O.R.
  54. NOW, virtually all B.O.R have been incorp. except
  55. 7th Am. – right to civil jury trial over $20
  56. 5th Am. – right to grand jury indictment
  57. 3rd Am. – quartering of troops
  58. 2nd Am. – right to bear arms
  59. but note: probably will be soon b/c DC v. Heller held a personal right

1

SUBSTANTIVE DUE PROCESS

  1. OVERVIEW
  2. what rights included?
  3. BOR (except un-incorporated ones: 7th, 5th, 3rd, 2nd)
  4. only BOR (Carolene FN) (Griswold dissent, Black)
  5. heightened scrutiny only where minorities discrim. against or political process breaking down
  6. otherwise democracy will strike back against evenhanded but undesirable laws
  7. BOR & penumbras (Griswold majority, Douglas)
  8. BOR & non-enumerated rights (Lochner) (Griswold concurrence, Goldberg/Harlan)
  9. 9th Am. shows Framers recognized some non-enumerated rts
  10. how should court identify non-enumerated rights?
  11. penumbras (Griswold majority, Douglas)
  12. note: Douglas an architect of New Deal, hated Lochner
  13. trying to stick closer to text, put more restraints on judges
  14. history (Griswold concurrence, Golberg) (Scalia)
  15. “so rooted… in the traditions and collective conscience of our people… as to be ranked as fundamental” (p. 638)
  16. restraint on judges: not inventing new rights, just recognizing old ones
  17. but note: could make an argument that Framers more concerned with economic (ex: liberty to contract) than civil (ex: privacy) rights
  18. living tradition (Poe v. Ullman dissent, Harlan) (Brennan)
  19. ever-evolving, changing
  20. rights can come into/fall out of legal tradition
  21. but note: does existence of challenged law (ex: CT anti-contraception) mean people deemed it OK under present tradition? (this will always be so, thanks to case-and-controversy requirement)
  22. defining the right at issue (esp. if non-enumerated) = everything
  23. Michael H. v. Gerald D. (1989) (p. 678)
  24. disjointed plurality opinion
  25. Scalia narrowly defines right
  26. “right of father to be involved in the life of child born to woman married to another man”
  27. note: like char. Griswold as “right of married couple to use contraception in their own bedroom”
  28. emphasizes importance of history (esp. legal presumption that child is husband’s)
  29. no changes to Const. except by Am.
  30. rejecting use of common law expansion b/c narrow def. means little to build on
  31. effect would be limited, fixed set of non-enumerated rights (wants to discern rather than create rights)
  32. Brennan broadly defines right
  33. “right of parent to play role in life of child”
  34. comparing to precedents about controlling educ.
  35. note: like char. Griswold as “right to martial privacy”
  36. idea of living Const., expanding rights; Const.’s broad lang. means supposed to evolve
  37. PRIVILEGES OR IMMUNITIES
  38. Corfield v. Coryell (C.C.E. Dist. Pa. 1823) (Art. IV P&I expansive)
  39. Art. IV, § 2: “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”
  40. these P&I = all fundamental rights “natural to citizens of all free govts”

  1. Slaughter-House Cases (1873) (p. 530) (14th Am. P&I only minor list of structural rights)
  2. facts – Louisiana law created butchery monopoly
  3. Ps argue – right to practice chosen profession is protected by 14th Am. P&I
  4. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US”
  5. also argue EP, DP, 13th Am. (invol. servitude)
  6. holding (Miller) – constitutional
  7. Art. IV and 14th Am. P&I refer to different categories of rights
  8. Art. IV, §2
  9. P&I of state citizens
  10. includes all natural-law rights under Corfield
  11. 14th Am.
  12. P&I of US citizens
  13. minor, limited list of rights tied to structural creation of fed. govt:

protection overseas

free access to seaports

right to come to capital and petition govt.

  1. state govts therefore free to abridge natural-law rights
  1. 14th Am. P&I doesn’t incl. right to profession
  2. historical arg.
  3. Reconstruction Am. designed to deal with specific problem of granting full citizenship to blacks
  4. not designed to go farther
  5. note: wants to err on side of conservative interp. – traditionally states trusted to protect fundamental rights – focusing on history and intent of recently ratified Am.
  1. dissent (Field)
  2. natural law arg.
  3. P&I refers to fundamental, natural-law rights
  4. this includes B.O.R.
  5. mandated monopolies are antithetical to justice (cites Adam Smith)
  6. arguing should incorporate B.O.R. against the states, reversal of Barron v. Baltimore (infra)
  7. majority’s interp. renders 14th Am. P&I pointless and redundant
  1. Saenz v. Roe (1999) (p. 539) (P&I right to interstate travel)
  2. facts – state paying higher welfare benefits to longer-time state rez.
  3. holding – unconstitutional
  4. people have right to interstate travel under 14th Am. P&I
  5. this would restrict poor people’s right to travel
  6. note: this is still similar to rights of US citizens in Slaughter-House (b/c necessary to creation of fed govt, not natural law)
  7. dissent (Thomas, Rehnquist)
  8. would overrule Slaughter-House
  9. 14th Am. protects all fundamental, natural-law rights
  10. would cast away precedent to get back to original meaning (similar to Lopez dissent)

  1. EARLY PRECEDENTS
  2. although SCOTUS only adopts idea of substantive DP after Slaughterhouse (gutting P&I as source of rights), more comfy with idea b/c of long history
  3. procedural/substantive divide really a modern thing, partly b/c of FRP, Erie, etc.
  4. Winehammer (NY Ct. of Appeals 1866)
  5. “due process” (in NY Const.) is more than procedural b/c otherwise any of your rights could be infringed through proper lawmaking
  6. “true law” doesn’t interfere with liberty, courts don’t have to recognize/defer
  7. slavery debate
  8. Dred Scott (1857)
  9. facts – fed law said slave became free in free territory
  10. holding – unconstitutional b/c violates slaveholders’ property right to slaves
  11. abolitionists also argued slaves had substantive DP right to liberty
  12. THE LOCHNER ERA
  13. Lochner v. New York (1905) (p. 607)
  14. facts – NY labor law limits hours of bakers (Lochner a boss)
  15. P argues – law violates 14th Am. DP, which includes “liberty to contract”
  16. State argues – labor law, public safety, workplace health
  17. holding (Peckham) – law unconstitutional
  18. 14th Am. incorp. B.O.R. + other fundamental liberties against the states
  19. includes liberty to contract, right of both employer and employee
  20. balanced with state police powers (health, safety, welfare, morals)
  21. standard:
  22. is this “fair, reasonable, appropriate” exercise of police power or “unreasonable, unnecessary, and arbitrary interference”?
  23. note: though lang. sounds like rational basis, opinion not as deferential
  24. rejects state’s rationales
  25. labor law applies only to bakers, no evid. that bakers cannot take care of themselves (note: doesn’t consider unequal bargaining power; this is era of industrial revolution)
  26. bakers’ hours don’t affect public safety b/c doesn’t affect cleanliness or wholesomeness of bread (but note: post-Jungle story about baking industry)
  27. # of hours doesn’t affect bakers’ health
  28. distinguishes from miner case, where court allowed govt to regulated hours b/c mining seen as inherently dangerous
  29. seems to req. leg. to show job obviously/common-sense dangerous (but note: evid. of bronchial disease for bakers breathing in flower) (and note: more obviously dangerous jobs more likely to pay more and less in need of leg. protection)
  30. dissent (Harlan)
  31. recognizes liberty to contract right
  32. but wants judges to be more deferential to legislature
  33. standard: must be “plainly, palpably, beyond all question against the Constitution”
  34. dissent (Holmes)
  35. some rights might exist through 14th Am. “liberty”
  36. but liberty to contract is recent, tied up with laissez-faire econ theory
  37. problem is not with means (SS for non-enum. rt) but with ends (using SS to protect liberty to contract)
  38. for next 30 years
  39. states and feds could not regulate labor, unions, prices
  40. but court reserved right to decide which laws worth saving
  41. note: some laws Lochner overturned had bad motivations like:
  42. labor unions trying to keep out immigrants willing to work more hours
  43. paternalism towards women
  44. now disproved economic theories
  45. now disproved health/safety theories
  46. MODERN ECONOMIC REGULATION
  47. note: Roosevelt’s Court Packing Plan (1 new justice for each SC justice over 70) => 20 days later, Parrish
  48. West Coast Hotel Co. v. Parrish (1936) (p. 616)
  49. facts – WA state minimum wage law
  50. holding – constitutional
  51. rational basis scrutiny
  52. overrules Adkins
  53. vote 5-4, Roberts the “switch in time that saved nine” (motivations unclear)
  54. US v. Carolene Products Co. (1938) (p. 739)
  55. reiterates rational basis test
  56. but FN hints that more scrutiny might be appropriate:
  57. for leg. which restricts those pol. processes which can ordinary be expected to bring about repeal of undesirable leg.
  58. for statutes directed at particular religions, or national, or racial minorities
  59. where there is prejudice against discrete and insular minorities… which tends seriously to curtail the operation of those pol. processes
  60. note: between 1936-1941 – FDR made 7 appointments to SCOTUS
  61. Williamson v. Lee Optical Co. (1955)
  62. facts – OK law
  63. no one can fit, duplicate, or replace lenses without optometrist Rx
  64. optician breaks law, challenges it
  65. holding – constitutional
  66. extreme (“imaginary”) rational basis review for econ. laws
  67. not concerned with leg. actual reason, but what “might have concluded”
  68. court admits overbroad – opticians can’t even duplicate lenses if customer breaks them
  69. but still upholds b/c says for leg. to weigh pros/cons
  70. note: real purpose of law is probably econ protection for optometrists
  71. CONTRACEPTION
  72. Lochner era precedents (leading to Griswold)
  73. Meyer v. Nebraska (1923) (p. 627) (note:Lochner era)
  74. facts – law forbids teaching German to schoolchildren; teacher convicted
  75. holding (McReynolds, a 4-Horseman) – unconstitutional
  76. relies on Lochner, non-enumerated right
  77. privileges “long recognized at common law” + natural law arg.
  78. right of teachers (to profession), pupils (to acquire knowledge), parents (control educ. of kids)
  79. Pierce v. Society of Sisters (1925) (p. 628) (note:Lochner era)
  80. facts – law req. kids to be in public school btwn ages 8-16
  81. holding – unconstitutional
  82. parents’ fundamental right to direct upbringing of children
  83. natural law arg.

  1. Griswold v. Connecticut (1965) (p. 635)
  2. facts – CT law forbade using/selling/etc. contraception
  3. physician broke law by giving to married couple
  4. holding (Douglas) – unconstitutional
  5. right to privacy, from penumbras of other Am. => strict scrutiny
  6. zones of privacy
  7. home: 3rd Am. quartering, 4th Am. search & seizure
  8. person: 1st Am. ass’n, , 5th Am. self-incrim.
  9. plus, 9th Am. indicates other rts exist
  10. distinguishes use ban (here, unconst.) from manufacture or sale ban (maybe const.)
  11. but note: later precedent expanded, also struck down laws banning manufacture/sale
  12. distinguishes use by single people
  13. state interest in stopping pre-marital sex
  14. emphasizes sanctity of marriage (“intimate to the degree of being sacred”)
  15. but note: later broadened to cover individuals in Eisenstadt v. Baird
  16. concurrence (Golberg)
  17. right to privacy
  18. from 14th Am. “liberty”
  19. 9th Am. shows non-enumerated rights also protected
  20. but does not provide indie source of rights
  21. or incorp. these rights against states
  22. concurrence (Harlan)
  23. right to privacy, especially marital privacy
  24. from 14th Am. “due process”
  25. rejects penumbras and 9th Am.
  26. cites Palko (incorporation decision, supra)
  27. dissent (Stewart, Black)
  28. only B.O.R. incorp. against the states
  29. otherwise judges unguided, too free to rely on person opinions about what’s “fundamental”
  30. note: another poss. position = 14th Am. DP incorp. only some B.O.R. (especially procedural rights)
  31. note:Griswold establishng a common law (case-by-case) approach, relying on and expanding rationales of prior holdings => backward-looking but also progressive
  1. ABORTION
  2. Roe v. Wade (1973) (p. 645)
  3. facts – TX law outlaws abortion
  4. State argues – protecting
  5. potential human life
  6. actual human life (TX argues life begins at conception)
  7. health of mother
  8. holding (Blackmun) – unconstitutional
  9. standard: infringe fundamental right? if yes, survive strict scrutiny?
  10. here, infringes right to privacy from 14th Am. substantive DP
  11. also mentions other poss. sources (ex: trial court said 9th Am.)
  12. describes poss. harm to woman (physical, psych.) being forced to give birth
  13. but doesn’t precisely explain how privacy right implicated
  14. implies affects personal autonomy
  15. different than Griswold b/c separating it from the home
  16. Eisenstadt – right to be free from govt interference in certain matters, explicitly mentions right to chose whether to have child
  17. other precedents about child rearing (ex: Meyer, Piercesupra)
  18. note: focusing heavily on medical science, doctors’ rights to perform medical procedures (Blackmun formerly Mayo Clinic GC)
  19. TX interests not narrowly tailored to compelling interests
  20. interest in potential human life
  21. becomes compelling at viability (note: like “quickening”)
  22. at time of Roe, end of 2nd trimester – but becoming earlier w/ med advances
  23. maybe based on probability that fetus will become baby (miscarriages more common in 1st trimester)
  24. interest in actual human life
  25. court says cannot settle (so many others disagree)
  26. but still implicitly/de facto accepting life does not begin at conception
  27. “person” in the 14th Am. does not include the unborn

TX does not treat fetus as person in other contexts (ex: woman who has abortion can’t be charged with murder)

  • note: if court accepted TX’s assumption that life begins at conception, law would be narrowly tailored
  1. interest in health of mother
  2. becomes compelling at end of 1st trimester
  3. then, abortion becomes more dangerous med choice (during 1st trimester, relatively safe)
  4. state cannot reg. for this interest during 1st trimester
  1. concurrence (Burger) – decision’s effects won’t be sweeping b/c physicians will be “deliberate”
  2. dissent (Rehnquist)
  3. majority finding brand new right, announcing new complicated framework (not necess. how briefed and argued)
  4. holding looks like legislation
  5. specifics not developed case-by-case, not in Const. lang.
  6. normal strict scrutiny supposed to be all-or-nothing, not balancing
  1. Result of Roe v. Wade
  2. 1st trimester – state cannot reg. abortion
  3. 2nd trimester – state can reg. for health of woman
  4. can make safer, but cannot ban
  5. 3rd trimester (after viability) – state can reg. to protect life of fetus
  6. can ban
  7. except if would interfere with health or life of the mother
  8. Analysis of Roe v. Wade
  9. why viability so important if fetus always potential rather than actual life?
  10. opinion makes more sense if assume
  11. state interest in protecting potential life is not compelling (just legit)
  12. and woman’s right to choose is compelling
  13. looks more like judicial balancing test/compromise than strict scrutiny
  14. perhaps court got involved b/c recognized 2 “non-negotiable” interest to ½ of populations – assumption that democracy will fail to reach compromise
  15. After Roe v. Wade
  16. 19 years after, all Repub. presidents (except 1-term Carter, with no SCOTUS appointments)
  17. Roe majority dying off – only Blackmun left
  18. Casey
  19. even P lawyers thought would probably lose, but thought could inspire momentum, help Dem be elected prez
  20. after initial conference, Kennedy voted to overturn Roe
  21. but while Rehnquist writing opinion, Souter and O’Connor convinced him to switch
  22. Planned Parenthood of SE Penn. v. Casey (1992) (p. 652)
  23. facts – PA abortion regs
  24. informed consent
  25. doc must inform patient: nature of procedure, health risks of childbirth and abortion, age of fetus
  26. then, 24-hour waiting period
  27. spousal notification
  28. judicial bypass procedure if:
  29. result of sexual assault reported to police
  30. danger of bodily harm from husband
  31. baby not the husband’s
  32. woman must certify one of above
  33. parental consent
  34. recordkeeping
  35. plurality (Kennedy, Souter, O’Connor) (controlling b/c most narrow in support of result, Marks)
  36. stare decisis supports Roe
  37. “Liberty finds no refuge in a jurisprudence of doubt.”
  38. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
  39. generation of women have relied on Roe (structuring personal and professional lives)
  40. maintain SCOTUS’s legitimacy
  41. hints that heightened stare decisis concerns b/c of political controversy
  42. different than West Coast Hotel, Brown (where stare decisis overcome)
  43. no change in factual underpinnings

Lochner (laissez-faire, capitalism can be self-regulating)