Con Law II – Outline Spring 2014 Merkel
The Constitution and Individual Rights
I. Introduction and Background
A. Early History
i. Some early decisions of the Supreme Court invalidating states laws were based in part on theories of natural law (principles inherent in the natural order limit the power of governments to act. Calder v. Bull (1798); Fletcher v. Peck (1810).
ii. Positive Law – only limits on governmental power derive from things such as the Constitution and other laws affirmatively enacted through defined law-making process. Some early decision upheld governmental actions without considering whether they violated natural law.
iii. Before ratification of the Fourteenth Amendment, the Court held that the provisions in the Bill of Rights protecting individual liberty applied only to actions by the federal government not by the States, Barron v. Baltimore (1833)
B. Privileges or Immunities
i. Privileges or Immunities clause of the Fourteenth Amendment limits the states from abridging only the privileges or immunities of national citizenship not state citizenship, Slaughter House Cases (1873).
ii. Privileges or Immunities clause of the Fourteenth Amendment prohibits a state from distinguishing among its citizens for the purposes of eligibility of welfare benefits on the basis of how long they have been citizens. Saenz v. Roe (1999)
C. Incorporation
i. Incorporation Doctrine – the Due Process Clause of the Fourteenth Amendment incorporates most of the provisions in the Bill of Rights, imposing their limits on the states. Wolf v. Colorado (1949)
ii. Adamson v. California
iii. McDonald v. City of Chicago
Due Process
II. Substantive Due Process
Under the doctrine of substantive due process, the Court has held that the Due Process Clauses protect forms of liberty that the government cannot impair even after providing procedural protections.
A. Substantive Due Process and Economic Liberty
i. The Court held in the late nineteenth and early-twentieth centuries that the Due Process Clauses protect a Freedom of Contract
a. Lochner v. New York
b. Nebbia v. New York
ii. The Court has since held that government regulation of social and economic matters is generally subject only to review for rationality
a. West Coast Hotel Co. v. Parrish
b. Williamson v. Lee Optical Co
iii. Although the Court has abandoned the cases holding that economic liberty is entitled to heightened protection under the Due Process Clauses, the Court has held that the Clauses do protect fundamental rights regardless of the level of procedure that accompanies governmental efforts to impair them.
B. Substantive Due Process and Fundamental Rights
i. Prelude-The Supreme Court has held that the Due Process Clauses protect various personal decisions concerning intimate relationships, sex, and reproduction.
a. T
ect the upbringing and education of children under their control. Pierce v. Society of the Sisters (1925); Meyer v. Nebraska (1923)
1. This right embraces decisions about who can visit their children. Troxel v. Granville (2000)
2. This right does not limit the power of the state to establish a virtually unrebuttable presumption that a child born to a married woman is a child of the marriage. Michael H. v. Gerald D. (1989)
iv. Sexuality
a. The government cannot make it a crime to engage in private, consensual sexual conduct, including homosexual sex. Lawrence v. Texas (2003)
v. Life
a. The Clauses do not impose an affirmative obligation on the government to guarantee a minimum level of personal security or safety. DeShaney v. Winnebago County Dept of Social Services (1989)
vi. Death
a. The Clauses do not prevent the government from insisting on clear evidence of an incompetent person’s desire to have life-sustaining treatment withdrawn. Cruzan v. Director, Missouri Dept of Health (1990)
b. The Clauses do not prevent the government from prohibiting persons (including doctors) from assisting others to commit suicide. Washington v. Glucksberg (1997)
