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Constitutional Law II
Elon University School of Law
Armijo, Enrique

Con Law II
Armijo, Spring 2015

–          Con Law II: Limitations of gov’t power through constitutional guarantees of liberty and equality to the individual.
o    “gov’t power” includes ALL gov’ts
–          Framer’s: Does the federal Constitution need a separate Bill of Rights to protect individual rights?
o    Federalists: NO.  The fed gov’t only has those limited powers expressly granted to it by the Constitution.
§  Any express limit on fed power connotes a grant of power in any other area in which power is not expressly limited.  (Ex: “Congress shall make no law abridging the freedom of speech”).
o    Antifederalists: YES.  The constitution must affirmatively grant protections of individual citizen’s fundamental rights from intrusions by the fed gov’t. 
§  = we need express limits on fed power in the Constitution itself.
§  = leads to the 10 amendments to the Constitution that make up the Bill of Rights
–          National Law v. Positive Law: what is the source of the court’s authority to invalidate an action by the gov’t that offends the individual’s liberty or right of equality?
o    Positive Law: The proper limitations on gov’t’s power over the individual are only those that come from laws affirmatively enacted through a legislative process.
o    Natural Law: Certain rights are inherent in nature and self-evidently true, and those rights limit the gov’t’s ability to act.  (“unalienable rights” – Dec. of Indep.)
–          State Action Requirement
o    State Action Doctrine: The guarantees of the Constitution run only against national and state gov’ts.
o    14A§1: No state shall deprive any person of life, liberty, or property without due process of law. 
§  = the Constitution defines relations between people and the gov’t, not relations between people and each other.
§  = ISSUE: Is the action complained of attributable to the state, or a private party? If the latter, the Constitution provides not basis for a claim. 
Privileges or Immunities
–          5A: “Nor shall private property be taken for public use, without just compensation.”
o    Barron: The constitution binds the federal government, not the governments of the individual states.
–          14A§1: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. . . .
o    Slaughter-House Cases: The PoI Clause of the 14A only protects those rights associated with federal citizenship.
§  History: 14A is part of the Reconstruction Amendments, which were about “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
§  Text:
·         The first part of the 14A “opens with a definition of citizenship—not only citizenship of the US, but citizenship of the states.”
o    “All persons born or naturalized in the US, and are subject to the jurisdiction thereof, are citizens of the US and the State wherein they reside.”
= express grant of citizenship to the former slaves
·         The sentence following refers to one kind of citizenship—federal—but not the other.
·         = What kind of rights are granted by each kind of citizenship?
o    Those rights that are fundamental—“protection by the gov’t, the right to acquire property, to pursue and obtain happiness and safety”—are derived from state law.
o    OTOH, those privileges or immunities that are part of federal law are only those that relate to the citizen’s relationship to the federal government.  Those are the PoI that are protected by this provision—the PoI of national citizenship. 
§  Federalism: If the PoI Clause were interpreted to grant the federal gov’t the power to protect fundamental and civil rights from the stats, then Congress could pass laws to restrict states’ protection of those rights.
§  DISSENT: This language was intend to grant federal protection to the natural rights enjoyed by all citizens against state encroachment.  One such right is the right for like persons to be treated alike by their governments.  The butchery statute violates that right. 
–          14A§1: . . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . .
o    1A: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridge the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
o    5A: … nor shall private property be taken for public use, without just compensation.
o    2A: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
–          ISSUE: to what degree does the 14A’s right to due process of law protect the individual rights granted by the BoR from the individual states?
o    TEST: Those particular rights set out by the BoR that are “fundamental to the American scheme of ordered liberty and system of justice” or “deeply rooted in our Nation’s history and tradition” are protected against state abridgement by the DP clause of the 14A’s protection of the individual from “liberty without due process of law.”
o    = EFFECT: If a right granted by an amendment in the BoR is found to be incorporated by the Due Process clause of the 14A, then the right applies against the states to the same extent and manner as it applies against the federal gov’t. 
–          D.C. v. Heller (2008): the 2A protects the individual’s rights to bear and keep arms in self-defense unconnected to militia service.
o    COURT: the 2A’s right to bear and keep arms in self-defense is “fundamental to the

glasses may only be fitted/replaced w/ prescrip. from ophthalmologist/optometrist) = VALID
§  “It is for legislation, not the courts, to balance the advantages and disadvantages of” barring opticians from these activities on the ground that they are not licensed.
§  RULE: A court engaging in R/B/R can supply any reasonable justification for the law under review, even if those that the legislature itself may not have considered when it passed the law.
o    RULE: where a right is fundamental, the Court will apply more searching legal scrutiny to the state action interfering with that right.
§  Personal rights such as speech, association, belief, and familial privacy are more deserving of judicial protection than purely economic rights. 
o    TEST for law infringing upon fundamental rights: STRICT SCRUTINY: whether the regulation limiting the right is justified by a “compelling state interest,” and the regulation is “narrowly drawn” to that interest.
o    TEST: Which rights are “fundamental”?
§  Is the alleged right expressly enumerated by the Bill of Rights?
§  If not, is the alleged right essential to individual liberty in our society?
§  OR, is the right deeply rooted in this country’s history and tradition?
o    List of Fundamental Rights:  (1) Direct the upbringing and education of children under the parent’s control; (2) Procreation; (3) Contraception; (4) Abortion – can be regulated; own standard of review; (5) freedom to marry or not; (6)
o    LIBERTY: freedom from restraint
§  “the right of the individual to contract, engage in any of the common occupation of life, to acquire useful knowledge, to marry, establish a home and bring up children [or not], to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law and essential to the orderly pursuit of happiness by free men.” Meyer
§  Pierce: (children 8-16 must go to public school) = VIOLATES 14A.  The law “interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”
§  Skinner: (3 crimes of moral turpitude (larceny but not embezzlement) à sterilize) = VIOLATES the DP clause.  The law interferes with the fundamental right of procreation.