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Constitutional Law II
Elon University School of Law
Gaylord, Scott W.

Constitutional Law II, Professor Scott Gaylord, Spring 2012

Constitutional vs. Prudential Requirements (p. 50)
·         (1) Some of the justiciability doctrines are a result of the interpretation of Art. III of U.S. Const.  Art. III.2 defines federal judicial power in terms of nine categories of cases and controversies.  Requirements for “cases and controversies” imposes constitutional limits on federal judicial power.
·         (2) Other justiciability doctrines are derived from prudential judicial administration.  Although the Constitution would allow the federal court to adjudicate a certain case, Court has decided that wise policy prevents judicial review.
·         Distinction between constitutional and prudential limits is important because Congress, through statute, may override prudential, but not constitutional, restrictions. 
o   Congress may not expand federal judicial power beyond what is authorized in Art. III of the Constitution.
o   Congress may instruct federal courts to disregard prudential constraints.
·         Both constitutional and prudential limits on justiciability are product of USSC decisions.
·         Justiciability doctrines such as standing have both constitutional and prudential components.
Policies Underlying Justiciability Requirements (ppg. 50-53)
Other Limits on Judicial Power (p. 53)
·         11th Amendment prevents federal court relief against state governments.
·         Court has named circumstances in which federal courts should abstain from deciding a matter even though it is justiciable and all jurisdictional requirements are met.
·         Will not decide constitutional issues where there are non-constitutional grounds for a decision, where the record is inadequate to permit effective judicial review, or where the federal issue is not properly presented.
Prohibition Against Advisory Opinions (ppg. 53-54)
·         Federal courts cannot issue advisory opinions. 
·         Many states allow courts to provide opinions about the constitutionality of pending legislation or on constitutional questions referred to them by other branches of government.
Slaughter-House Cases (1873) (p. 494)
·         Facts: Huge surplus of cattle in TX.  LA legislature gave monopoly in slaughterhouse business for the City of New Orleans to the Crescent City Livestock Landing and Slaughter-House Company.  Law required that the company allowed any person to slaughter animals in the slaughterhouse for a fixed fee. 
·         The suit: Several butchers brought suit, challenging monopoly.  Said that the law violated their right to practice their trade.  Argued that the restriction created involuntary servitude, deprived them of their property without due process of law, denied equal protection, and abridged their privileges or immunities as citizens.
·         Court rejected challenge to grant of monopoly. 
·         Discussion
o   13th and 14th Amendments:
§  Said that purpose of 13th and 14th Amendments was solely to protect former slaves. 
§  Interpreted each provision narrowly and solely to achieve the limited goal of protecting former slaves.
§  Except for P & I Clause, all of the other restrictive interpretations of the 14th Amendment were subsequently overruled. 
o   Due Process
§  Rejected application of due process to protect a right to practice one’s trade.
§  Since, Court has used the due process clause to safeguard privacy and autonomy rights such as the right to marry, the right to custody of one’s children, the right to purchase and use contraceptives, and the right to abortion.
o   Narrow interpretation of P & I Clause has never been overruled and has precluded the use of that provision to apply the Bill of Rights.  P & I was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.  P & I are left to state governments for security and protection.  P & I Clause was removed as a basis for applying the Bill of Rights to the states or for protecting rights from state interference.
§  Then considered meaning of P & I.
§  Gave a list of rights that were protected under Constitution even before P & I Clause was adopted.
§  Rendered P & I Clause a nullity. 
Revival of Privileges or Immunities Clause: Saenz v. Roe (1999) (p. 497)
·         First case to use P & I Clause to invalidate a state law.
·         Involved a CA law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their first year of residence.
·         Held: the right to travel is a fundamental right.
o   One aspect of this right is the right of new residents to be treated the same as longer-term residents of a state.
o   This aspect of the right to travel is protected by the P & I Clause.
·         CA argued that it was justified in restricting welfare benefits for new residents to avoid CA’s being a magnet for moving to the state solely to collect is higher welfare benefits.
o   (1) Though some might move to CA just for the benefits, the evidence, which takes into account the higher cost of living in CA, suggests that the number of people who do this is small—not large enough to justify a burden on those who had no such motive.
o   (2) CA has represented to the court that this was not one of the reasons for the law’s being enacted.
o   (3) Even if it were, Shapiro v. Thompson (1969) held that purpose would be impermissible.
·         Thomas and Rehnquist (dissenting) criticized the use of the P & I Clause as a basis for protecting rights.

s to be ranked as fundamental,” that are therefore “implicit in the concept of ordered liberty.”  Due process precludes those practices that “offend those canons of decency and fairness that express the notions of justice of English-speaking peoples.”
·         Main issues:
o   (1) History and whether the framers of the 14th Amendment intended for it to apply the Bill of Rights to the states.
o   (2) Federalism: applying the Bill of Rights to the states imposes a substantial set of restriction on state and local governments.
o   (3) Judicial role and how much discretion judges should have.
·         Thomas has repeatedly argued that the establishment clause of the 1st Amendment should not be incorporated.
Current Law as to Incorporation
·         Duncan v. LA (1968): “The question has been asked whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ whether it is ‘basic in our system of jurisprudence,’ and whether it is a ‘fundamental right, essential to a fair trial.’”
·         Provisions of Bill of Rights that have been incorporated:
o   1st Amendment: establishment, free exercise, protection of speech, press, assembly, and petition.
o   4th Amendment: protection against unreasonable search and seizure, requirement for warrant based on P.C., exclusionary rule.
o   5th Amendment: prohibition of double jeopardy, protection against self-incrimination, requirement that government pay just compensation when it takes private property for public use.
o   6th Amendment: requirement for speedy and public trial, by impartial jury, with notice of the charges, chance to confront adverse witnesses, and to have compulsory process to obtain favorable witnesses, and to have assistance of counsel if the sentence involves possible imprisonment.
o   8th Amendment: prohibition against excessive bail and cruel and unusual punishment.
·         Provisions of Bill of Rights that have never been incorporated:
o   2nd Amendment: right to bear arms. 
o   3rd Amendment: right not to have soldiers quartered in a person’s home.
o   5th Amendment: right to grand jury in criminal cases.
o   7th Amendment: right to jury trial in civil cases.