Constitutional Law II Dienes

Constitutional Law II Dienes

Constitutional Law II – Dienes

OUTLINE

SUBSTANTIVE LIMITS on GOVERNMENTAL POWER

  1. The Historical Prelude
  2. The Original Constitution
  3. Few enumerated rights
  4. Many of the Framers (federalists) argued no need for specifications of basic rights because everything not claimed by the national govt. was left to the states.
  5. To them, if you enumerated certain rights, it could be viewed as a rejection of other rights.
  6. Efforts to include a Bill of Rights were defeated at the Constitutional Convention.
  1. Natural Rights
  2. Natural Rights today
  3. The claim that there are extra-constitutional “natural rights” limiting governmental power is generally not accepted by the courts.
  4. In order to challenge govt. act (state or federal), you must find some express or implied constitutional/statutory/common law limitation
  1. Natural Rights historically
  2. Calder v. Bull (p. 381): Demonstrates early opinion that the legislature can’t take away rights given by natural law. (Judge Chase: “The purposes for which men enter into society will determine the nature and terms of the social compact.”)
  3. Points to the Declaration of Independence as evidence of the social compact: we enter into society and voluntarily give up some rights and retain others.
  1. Express Rights/Bill of Rights
  2. Overview
  3. First 10 Constitutional Amendments
  4. Designed to protect the individual from various infringements on freedom which might emanate from the newly-formed fed govt.
  5. Constitution now has 27 amendments.
  6. Bill of Rights does NOT directly limit state action.
  7. Barron v. Mayor and City Council of Baltimore (US 1833; p. 384): Bill of Rights does not apply to the states, only against the fed. (Black letter law)
  1. Civil War Amendments
  2. Overview
  3. Include the most important limitations on state govt. action.
  1. 13th Amendment (1865)
  2. Abolishes slavery and involuntary servitude
  3. Applies even to private action
  4. §2 allows Congress to enact leg. to enforce 13th (Civil Rights Act of 1866; in force today at §1981)
  5. Rights have been narrowly construed; limited to formal bondage and forced action. (e.g. doesn’t prohibit racial discrimination)
  1. 14th Amendment (1868)
  2. Citizenship: §1 establishes that persons born/naturalized in the US are citizens.
  3. Rejection of Scott v. Sanford (Dred Scott) (US 1857; p. 384) (holding that a Negro slave was not a citizen entitled to sue in federal court)
  4. Privileges and Immunities: §1 also establishes that no state shall deny the privileges and immunities of US citizens.
  5. Due Process of Law: §1 also provides that state shall not deprive any person of life/liberty/property w/o DP of law/EP of laws.
  1. 15th Amendment (1870)
  2. Prohibits denial of the franchise because of race/previous condition of servitude. (Black men get right to vote.)
  3. Applies to state and fed.
  1. Privileges and Immunities
  2. The Slaughterhouse Cases(US 1873; p. 386) (holding that Louisiana can give 25 year monopoly to butcher w/o violating P&I rights of other butchers)
  3. Importance
  4. Signifies the death of P&I
  5. SC definitively holds that P&I doesn’t make the Bill of Rights applicable to the states
  6. The sole function of P&I is to protect the rights of people in their capacity as federal citizens.
  7. Lists the rights guaranteed to federal citizens under P&I:
  8. To petition Congress
  9. To peaceably assemble
  10. To use the writ of habeas corpus
  11. To use the navigable waters of the US
  12. To interstate travel
  13. To claim the rights secured by 13th/15th Amendments
  14. To vote in federal elections
  1. Different Views of P&I in Slaughterhouse
  2. Majority (Miller)
  3. If we take a broader approach, we’ll allow Congress to have too great a power over the states. Congress and the court would become censors of state legislation.
  4. Citing Corfrield v. Coryell: Fundamental rights are attached to state citizenship (referring to Art. IV, §2).
  5. Minority-Framers’ Intent (Field) (Dienes likes this one)
  6. 14th Amendment is wasted if it doesn’t apply to the states, just a “vain and idle” enactment.
  7. You’re primarily a citizen of the US, secondarily a citizen of your state.
  8. Framers Intent: fundamental rights are attached to US citizenship.
  9. Minority-Incorporation (Bradley)
  10. P&I meant to incorporate the Bill of Rights and the Constitution.
  11. P&I was meant to be the vehicle by which the Bill of Rights were made applicable to the state and by which natural rights were federally enforced.
  12. Minority-Natural Rights (Swayne)
  13. P&I Clause is an embodiment of natural rights/fundamental principles of the social compact.
  1. Recent Revival of P&I?
  2. Saenz v. Roe (US 1999, 398): 7-2 holding that statute violated P&I when it mandated that new CA residents only get the benefits of the state where they came from.
  3. Possible resurrection of P&I WRT right to travel. (Dienes & Tribe think not so much)

DUE PROCESS

  1. Overview of Due Process
  2. 5th and 14th Amendments
  3. 5th: Federal
  4. 14th: States
  1. What it Does
  2. Protects citizens against deprivation of life, liberty and property w/o DP/law.
  1. Incorporated Rights
  2. Total Incorporation
  3. The SC has rejected the argument that the DPC incorporates all of the Bill of Rights and makes them applicable against the states. (Palko v. Connecticut, (US 1937, p. 398)
  4. Palko v. Connecticut: Cardozo rejects the idea that the entire BoR is incorporated by the 14th Amendment, but says some rights (“those values which have been found implicit in the concept of ordered liberty”) are guaranteed by the 14th.
  5. Adamson v. California (US 1947, p. 400): DPC does not “draw all the rights of the federal Bill of Rights under its protection.” Holds state can bring up fact that D is not taking the stand. (This notion is later overturned.) Presents different ideas of incorporation doctrine:
  6. No incorporation (Frankfurter): Flexible, ad hoc DP w/ an independent potency. Judge on a case-by-case basis whether DP rights are being violated (power to interpret DP in hands of court, who must decide w/in the accepted notions of justice). Is the right so fundamental that it violated the basic standards of rights that are so accepted in Anglo though that the principles of fairness and justice demand that the DPC is applied? [natural rights]
  7. Total incorporation (Black):14thapplies the Bill of Rights (and only the Bill of Rights) to the states. Favors objective standard/prevention of policymaking by courts.
  8. Total incorporation + (Murphy & Rutledge): 14th incorporates Bill of Rights and then some. This gives courts a dynamic flexibility (which Black hates) to create rights in accordance with changing times.
  1. Selective Incorporation+ (Black letter law)
  2. The standard today
  3. The SC has held that some, but not all, of the provisions of the BoR are incorporated by the DP Clause and thus made applicable to the states.
  4. The guarantees of the DPC are not limited to rights listed in the BoR.
  1. Provisions incorporated
  2. DP incorporates those provisions of the BoR that are “essential to the concept of ordered liberty” or “fundamental in the American concept of justice.”
  1. Provisions not incorporated
  2. Everything’s incorporated EXCEPT 2nd, 3rd, 5th, 7th, 8th
  1. Procedural Due Process
  2. 2-Step Formula for whether PDP’s been violated:
  3. Has there been a deprivation by the state of a life, liberty or property interest that was presently enjoyed?[Doesn’t matter if it’s categorized as a right or a privilege.] [Negligent deprivation isn’t enough.]
  4. Life:
  5. Liberty: broad concept not limited to conditions of confinement (e.g. imprisonment). Includes interests such as marriage, raising a family, working in the common occupations of the community.
  6. Property:must show some entitlement created by the govt. in order to show a property interest. [Can’t just be an application for benefits.]
  7. Examples of property:
  8. Welfare benefits (Goldberg v. Kelly)
  9. Wage garnishment (Sniadach v. Family Finance Corp.)
  10. De facto tenure position (Perry v. Sinderman)(this is more than a subjective expectancy of entitlement
  11. Does not include:
  12. Social security disability (Mathews v. Eldridge (hardship caused by deprivation not as great as w/ welfare because not as likely to be based on need, additional safeguards would significantly burden the govt.))
  13. One-year state employment K (Board of Regents v. Roth (no legitimate claim of entitlement))
  14. Employment terminable at will (Bishop v. Wood)
  15. What procedures are required in order to ensure fundamental fairness? [Federal (not state) constitutional question to be decided by the courts.] [Minimum procedures demanded by the courts are notice and a hearing (Cleveland Board of Education v. Loudermill)]
  16. Consider 3 factors: (Mathews v. Eldridge, US 1976)
  17. The severity of the harm to the litigant if the requested procedures are not granted (e.g. % income lost)
  18. The risk of error if the procedures are not afforded
  19. The administrative difficulty and cost of providing the added procedures
  20. [the legal relevance of the fact in controversy (See Connecticut Dept./Safety v. Doe (no need for Megan’s law hearing))
  21. But the 3 factors are not always required:
  22. Dusenbery v. US (US 2002, Supp. 29): Holding that Mathews “is not an all-embracing test for deciding DP claims” and using “a more straightforward test of reasonableness under the circumstances” in holding that a notice of forfeiture sent by certified mail to the federal prison where the claimant was incarcerated satisfies procedural DP.
  1. Recent Cases Dealing w/ Procedural DP
  2. Los Angeles v. David: 30 day lag-time before hearing is ok under PDP. (3rd factor of ME – administrative difficulty of changing the practice would cost too much)
  3. Connecticut Dept. Public Safety v. Doe: Megan’s laws don’t violate DPD. No hearing required to determine if offender is dangerous before putting him on the list because the list only indicates whether the offender was previously dangerous. A hearing is required for fairness only if the particular fact in controversy has legal relevance.
  1. Substantive Due Process
  2. Economic Substantive Due Process (Non-Fundamental Rights)
  3. Rise of Economic SDP (Path to Lochner)
  4. Courts continually using judicial review under SDP (5th and 14th) to strike down federal and state social and economic laws as arbitrary and unreasonable interferences with the freedom to contract protected by the SDP guarantees of liberty and property.
  5. Lochner v. NY, (US 1905, p. 415) (Peckham): Demonstration of economic SDP’s heyday. Strikes down NY law that limits employment to 60 hours/week as an unconstitutional prohibition on making a contract, which is a liberty interest (according to Allgeyer v. Louisiana). No public safety interest: the health of the bakers is not materially disadvantaged by long working hours. (“It is a question of which two powers or rights should prevail: the power to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid.)
  6. Dissent (Holmes): Courts need to defer to the leg. as long as no fundamental right is violated. Only if a reasonable person would conclude that the law violated traditional fundamental principles should the court be used to strike down leg.
  7. Dissent (Harlan): Courts should defer to leg. in absence of clear constitutional violation.
  8. Sui juris (individuals don’t need the protection of the state; they can bargain for themselves) v. sui generis(individuals (e.g. women and children) are wards of the state, need its protection).
  9. But seeMunn v. Illinois: upholds state statute limiting the rates charged by grain warehouses as a police power ability of the state to regulate private property affected w/ the public interest. See alsoMuller v. Oregon (US 1908, p. 422) (upholding maximum hour law for women; sui generis)
  1. Decline of Economic SDP(Nebbia and progeny)
  2. In the 1930s, in the face of rising adverse public reaction to judicial invalidation of the New Deal, the doctrine of economic substantive due process began to ebb in importance and the doctrine followed a process of steady decline and erosion.
  3. Nebbia v. New York (US 1934, p. 422): SC upholds state leg. setting milk prices against a DP challenge. Questions concerning the wisdom of the law are for the leg, not the courts. Standard of judicial deference to leg. Burden of proving that the law has no rational basis is on the challenger. “The guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”
  4. SC spoke of the milk industry as being “affected w/ the public interest,” but it meant only that the law was a reasonable exercise of the police power.
  5. West Coast Hotel v. Parrish (US 1937, p. 426)(Hughes): sustains a minimum wage law for women, rejects the “freedom to contract” theory of Lochner. “The liberty safeguarded is liberty in a social organization, which requires the protection of law against the evils which menace the health, safely, morals and welfare of the people.”
  6. Ferguson v. Skrupa (US 1963, p. 427)(Black): holding constitutional a Kansas law making in unlawful for anyone to engage in the business of debt-adjusting… spelled “the last rigts for the economic philosophy of Lochner. “The doctrine that prevailed in Lochner…has long since been discarded.”
  1. Modern Economic SDP (NON-Fundamental Rights)
  2. Judicial deference to leg.
  3. Social and economic regulatory leg. that does not interfere with fundamental rights will not be closely scrutinized by federal courts.
  4. If there is any rational basis that the leg. might have had for concluding that the leg would further permissible leg. objectives, it will be sustained.
  5. As long as the law isn’t arbitrary or irrational.
  6. Deference is almost insurmountable: no economic leg. has been held unconstitutional by the SC, using this rationality test, since the New Deal.
  7. Examples:
  8. United States v. Carolene Products (US 1938, 428): The existence of the facts supporting leg. judgment is to be presumed.
  9. Exceptions-Deferential Standard NOT applied with:
  10. Fundamental rights (see below)
  11. Punitive damages (SeeState Farm v. Campbell (SC 2003, Supp. 41) (Striking down state court’s award of punitive damages on the groups that DPC of the 14th “prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”)
  12. Instances when leg. negatively impacts the political process itself of affects “discrete and insular minorities.” (Stone footnote in Carolene)
  1. Fundamental Rights Due Process (Overview)
  2. What is a Fundamental Right?
  3. Includes some parts of the BoR:
  4. Some enumerated rights
  5. Free speech
  6. Free Press
  7. Free assembly
  8. Free belief/association
  9. Religious freedom
  10. Other non-enumerated rights
  1. Standard of Review
  2. Often--Strict Scrutiny: is the law narrowly tailored to further an overriding govt. interest?
  3. Sometimes—Continuum Approach (Mid-level): Reflects the principal “the certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.” (Poe v. Ullman (US 1961, Harlan dissenting)
  1. Fundamental Rights DP Applied (Topics)
  2. Contraception and Abortion
  3. Marital privacy (Griswold and progeny)
  • No express privacy right in constitution, but the SC has held that constitutional right of privacy limits govt. power to regulate sexual activities involving marriage and family life.

i. Griswold v. Connecticut (US 1965, p. 440)(Douglas): Privacy right can be implied from the penumbras (zones) of 1st, 3rd, 4th, 5th, 9th Amendments. State criminal statute prohibiting use of contraceptives even by married couples/aiding abetting such use is unconstitutional violation of privacy/marital relationship.

  • Standard of Review: Majority rejects the traditional rational basis standard of review but is unclear on the appropriate standard. Conn. law is held to “sweep unnecessarily broadly” on the privacy right.
  • Selective incorporation+: Like Murphy & Rutledge’s total incorporation+ idea from Adamson [only not total…]
  • Black from Adamson would hate cause it’s subjective.
  • Criticisms of Douglas’s penumbra idea: Doesn’t create boundaries for privacy. Danger/diluting BoR by creating broad rights that have no meaning.

  • Eisenstadt v. Baird (US 1972, p. 455): Statute

prohibiting distribution of contraceptives to

umarried persons violated equal protection.

iii. Carey v. Population Services Int’l (US 1977, p.

455) (Brennan): Constitutionally protected right of

privacy extends to an individual’s liberty to make

choices regarding contraception.”

  1. Abortion (Roe and progeny):
  • By the time Roe is decided, 21 states still prohibit abortion.
  1. Roe v. Wade (US 1973, p. 457)(Blackmun)(7-2): Court

extends the fundamental right of privacy to protect a

woman’s decision to terminate a pregnancy. Holds that

right of privacy has its source in 14th Am’s guarantee of

personal liberty. (Some lower courts had used the 9th.)

Maternal health is never sufficiently compelling to

justify the proscription of abortion at any phase. The

potentiality of life is compelling enough to allow the state

to regulate, even proscribe abortion after the 3rd trimester.

  • Definition of life: Textual argument that fetus has no

right to life because everywhere the founders refer to a

person, they refer to someone who’s already been born.

There’s no objective definition of life, so TX can’t just

adopt a particular one and deny the rights of the woman.

(Science can’t decide, so neither will we.) But the state

does have an interest in protecting the potentiality of

life, which begins at the point of viability.

  • Trimester idea: When a fundamental right is burdened, the law must be necessary to a compelling state interest. In determining whether this standard is met, Court applies trimester test, where state’s compelling interest kicks in after the 3rd trimester. Different rule for each trimester (Dienes thinks was totally unnecessary, opened the decision up to criticism it didn’t have to have):
  • First: A state may not ban, or even closely regulate abortions. The decision to have an abortion and the manner in which it is to be carried out are to be left to the woman and her physician.
  • Second: A state may protect its interest in maternal health by regulating the abortion procedure in ways that are “reasonably related” to her health. Such regulation might include, for instance, a requirement that the operation take place in a hospital, rather than a clinic.
  • No protection of fetus: the State may protect only the mother’s health, not the fetus, at this point. So no flat ban on 2nd trimester abortions is permitted.
  • Third: The fetus becomes viable (capable of “meaningful life outside the mother’s womb.”) Therefore, the state has a compelling interest in protecting the fetus. It may regulate/proscribe abortion.
  • However, abortion must be permitted where it is necessary to preserve the life or health of the mother.

Roe