Constitutional Law Outline (Spring 2004, Lupu)

Constitutional Law Outline (Spring 2004, Lupu)

FOURTEENTH AMENDMENT

I.  The Bill of Rights and the Post-Civil War Amendments

1.  Pre-Civil War Situation

·  Barron v. Baltimore (1833): holding that the 5th Amendment's "just compensation" clause is not applicable to the states.

o  Marshall says that the Amendments were not limitations on the states because the Bill of Rights was put in place to limit the federal government so there is a presumption that any rights are assumed to limit only the nat'l government unless the Constitution explicitly says so.

o  Looks at Art. I, §§ 9 and 10 – when the Constitution meant to bind the states, it did so.

o  As an institutional matter, it comes to who gets to decide for whom, an issue of authority. As a substantive matter, a set of national rights would serve a unifying purpose.

o  Basically, in the pre-war period, the only federal limitation on states was Art. I.

·  Dred Scott v. Sanford (1857): holding that blacks are not citizens and thus, no diversity jurisdiction in federal courts, and the Missouri Compromise was unconstitutional, since it deprives persons of property without just compensation.

2.  The Purpose and Impact of the Post-Civil War Amendments

·  Constitutionalized the end of slavery – 13th Amd., but this wasn't enough, so in response to Southern Black Codes, Congress passed the Civil Rights Act, but faced with uncertain constitutional footing, it passed the 14th and 15th Amendments to complete the project of Emancipation.

·  The Fourteenth Amendment reads that "No State shall make or enforce any law which shall abridge the privileges and 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 law."

o  Citizenship is a matter of federal constitutional law

o  Privilege & Immunities Clause (seems to be substantive rights)

o  Due Process Clause (seems to deal with strictly procedural, but later will have substantive)

o  Equal Protection Clause (seems to focus exclusively on equality under the law)

·  Slaughter-House Cases (1873): the 13th and 14th do not make the procedural guarantees of the Bill of Rights applicable to the states (only applies to former slaves and African-Americans).

o  Reasoning: the 14th Amendment distinguishes between U.S. and state citizens; only those P & I of the national gov't are protected, such as right to petition, seek protection and access to federal instrumentalities. Thus, the Constitution does not control the power of state gov'ts over the right of their own citizens except to require that a state grant equal right to its own citizens and out-of-state citizens in its jurisdiction. The Court distinguished P & I found in Art. IV, § 2 (which protected citizens of States from interference from other states = wanderer's rights).

o  Held that the purpose of the Amendments was to protect "the newly-made freemen and citizen from the oppressions of those who had formerly exercised unlimited dominion over them."

o  Effectively marks the end of P & I as a substantive rights provision.

·  Saenz v. Roe (1999) (modern P & I rights under 14th Amd.): struck down a California law that stated that if you moved to California, you will not be able to receive state welfare benefits for a year, under the P & I of the 14th Amendment.

o  The P & I Clause protects the right to migrate to another state by requiring states to provide the "same privileges and immunities" to new residents as they provide to their own citizens.

o  State-created benefits are not considered fundamental (wanderer's) rights protected by Art. IV.

o  The Court stated that a state cannot prohibit people from coming in to take advantage of what the state has to offer, with a few exceptions like divorce or in-state school tuition

o  P & I protects a right to move and stay there.

II.  Due Process and the "Incorporation" Controversy

Cardozo/Frankfurter/Harlan / Black / White
Selective incorporation: fundamental vs. not-so-fundamental rights; Palko / Total incorporation: original purpose was to incorporate all the Bill of Rights (1-8) to apply to the States. / Modern View: focus on what is essential and fundamental to Anglo-American justice.
Unpredictable: which rights were in the core or the periphery would change with new judges. / This view is insensitive to the fact that some clauses have federalism concerns (e.g. 2nd Amendment)

Palko v. Connecticut (1937): double jeopardy clause of the 5th Amendment is not a fundamental right, and therefore is not incorporated against the states; only fundamental rights are incorporated into the 14th Amd.

·  Black would argue that the 5th Amd. governs double jeopardy in federal courts, and the 14th Amd. extends the double jeopardy clause to the states.

·  The Court rejected total incorporation in favor of incorporating only those rights which are "of the very essence of a scheme of ordered liberty" and necessary for due process.

Adamson v. California (1947): the majority adheres to the Cardozo view, in holding that the prosecution may comment on the ∆'s failure to take the stand, which is not allowed under the 5th Amd. in federal courts.

·  Frankfurter argues that there are some 5th Amd.-type violations which would violate the 14th Amd.'s DPC, and the courts should look on a case-by-case basis.

·  Black argued that the full incorporation of the Bill of Rights was the original purpose of the 14th Amd.

Duncan v. Louisiana (1968): adopting White's approach, which asks whether the federal right protected in the Bill of Rights is of such importance that it is fundamental [fairness] to the American scheme of justice; here, the right to a jury trial in serious criminal cases protected by the 6th Amd. must be extended to the states via the 14th Amd.

·  But see Williams v. Florida (1970) (allowing states to have fewer than 12 jurors; at least 6) and Apodaca v. Oregon (1972) (upholding a non-unanimous state jury verdict, even though under the Sixth Amd., would be a violation). Both have been held as not necessary ingredients to the Sixth Amd. "trial by jury."

All of the criminal process guarantees of the Bill of Rights are now applicable to the states [4th Amd. "search and seizure;" 5th Amd. protection against double jeopardy and self-incrimination; 6th Amd. right to counsel in criminal cases, a jury trial, and speedy and public trial; 8th Amd. "cruel and unusual punishment" clause], with the exception of the grand jury indictment provision of the 5th Amd. and the "excessive bail" provision of the 8th Amd.

·  Also incorporated the 1st Amd. and 5th Amd. "just takings" clause.

Mapp v. Ohio (1961): incorporation after Mapp meant not only incorporating the "core" of the Bill of Rights guarantees, but applying to the states every detail of the contours of the guarantees.

III.  Substantive Due Process and Economic Classifications

1.  Pre-Lochner Era

·  Calder v. Bull (1798): rejecting an Act which overturned a probate court and redistributed property, on a natural law theory, that there are laws that may interfere with natural rights of people even though those rights are not specified in the Constitution. If an act does something fundamentally unjust and wrong, even though there is nothing in Constitution, we’re still going to say it’s wrong.

·  Mugler v. Kansas (1887): sustained a state law prohibiting intoxicating beverages, but the Court announced that it was willing to examine the substantive reasonableness of state legislation. Not "every statute enacted ostensibly for the promotion" of "the public morals, the public health, or the public safety" would be accepted "as a legitimate exertion of the police powers of the State."

2.  Lochner Era: no deference to legislative judgment during the reign of Lochner-style substantive due process but rather an intrusion of the judicial economic value choices in preference to those selected by the legislature.

·  Lochner v. New York (1905): holding that a law prohibiting freedom of contract (limits overtime hours) in the marketplace is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose [looks at means and ends].

o  Labor laws are suspect, and the public health considerations were rejected, as bakers are in no more danger than other occupations.

o  Found a substantive due process liberty of contract

·  Muller v. Oregon (1908): upheld an eight-hour workday limit for women.

·  Adkins v. Children's Hospital (1923): struck down minimum wage law for women, as wage regulations are different from hour regulation [state has no interest in private wage bargains].

·  Effect of the Lochner Era:

1.  There is now substantive DP (the idea of liberty for purposes of DPC is very broad and has survived); the P & I clause reflects something substantive, not just procedural, but the Slaughter-House Cases push P & I clause from our constitutional vocabulary.

2.  standard of review: ends and means closely monitored [ultimately refuted and much greater deference granted.

3.  Modern, Post-Lochner Rationality Review

·  New York v. Nebbia (1934): The Court adopts a minimum rationality standard: as long as the court finds the law to have a reasonable relationship to a proper legislative purpose, to be not arbitrary, capricious, or discriminatory, and to have means chosen that are reasonably related to the ends sought, due process is not offended. The Court permits price regulation of milk b/c public interest in price of milk (concerned that some milk farmers are going to go under; make sure milk is free of disease; milk is necessity of life and can easily be spoiled).

o  Moved burden of persuasion from the State to the person raising the complaint.

·  West Coast Hotel Co. v. Parrish (1937): upholding minimum wages for women, as it is permissible to have labor laws designed to redress inequalities in bargaining power b/w legal equals (idea in Lochner that labor laws are illegal is thrown out the window).

o  Regulation assuring payment of a living wage is clearly reasonable, especially considering the cost to the government and community of the alternative.

o  A valid public interest in preventing the exploitation of workers who are in a weak bargaining position.

·  Late 1930s Developments: dramatic expansion of legislative power but restriction of economic due process examination; reduces federal judicial power/scrutiny of economic policy/due process. See West Coast Hotel, NLRB v. Jones & Laughlin (1937) (power of nat'l gov't to regulate nat'l economy; here minimum wages and maximum hours), Erie RR v. Tompkins (federal courts sitting in diversity cases should apply the same law as the highest court so the state – no federal common law).

·  U.S. v. Carolene Products Co. (1938):

o  The Court declined to challenge the rationality of congressional findings, presuming that the legislative basis for the prohibition was sound.

Footnote 4, ¶ 1: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th.” The presumption of constitutionality high in due process cases, but when text strictly prohibits something, we’ll obviously adhere to that…textualism.

¶ 2: “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions for the 14th Amendment than are most other types of legislation. On restrictions upon the right to vote…on restraints upon the dissemination of information…on interferences with political organizations…to prohibition of peaceable assembly…” The Court will no longer going to strictly review output of legislation (output of political process) but we may think differently about laws that regulate the input to political process, such as speech, voting, etc.

¶ 3: “Nor need we enquire whether similar consideration enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Maybe there are some people who are permanent outsiders that get whacked over and over again—courts have to be careful to protect against this kind of output. This footnote becomes dividing line b/w proponent and opponents of affirmative action.

4. After 1938: Economic Due Process moves to minimum rationality standard.

·  Williamson v. Lee Optical Co. (1955): minimum rationality standard, and will work without any evidence or disclosure of what legislature's purpose was, the Court will presume constitutionality. Part of the presumption of constitutionality is that if we can find any possible legitimate purpose, we will use that, whether or not it is the one expressed. Then look to see if minimally rational connection b/w means and ends. This creates an arguably insurmountable burden on challenger to prove that no one could reasonably believe that these means advance these ends.

o  Appeared to completely abdicate judicial scrutiny of economic legislation.

o  Eventually, the Court concluded that it would not overturn economic regulations unless there was no conceivable justification for the regulation, a very hard burden for someone challenging to meet. So long as some valid, rational purpose could be imagined, it would withstand judicial scrutiny.

o  Step 1: Attribute a legitimate purpose to the law; might've been done for public good.

o  Step 2: Means are a rational way to advance the ends [minimal rational connection between means and ends – this creates a high burden for a challenger; must prove that NO rational legislature could have done this]. Imagine possible goods that this might serve and attribute it to the ends.

5. But See Punitive Damages, Retroactive Legislation and the Revival of Substantive Due Process.

·  Eastern Enterprises v. Apfel (1998): retroactive legislation exceeded due process; the law created liability for events which occurred 35 years ago and was too broad in scope.

·  BMW v. Gore (1996): striking down a punitive damage award ($2 million for $400 actual damages) as being excessive, on procedural due process grounds [i.e. fair notice to the defendant of potential liability] and in concurrence, substantive due process [uniformity in the law and freedom for excessive]