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Constitutional Law II
Elon University School of Law
Armijo, Enrique

CON LAW II OUTLINE
Spring 2016; Armijo

INTRODUCTION
DeShaney v. Winnebago Co. Dep’t. of Social Svcs.
State Action Doctrine: The guarantees of the Constitution run only against national state gov’ts.
14th Am, S. 1: No State shall deprive any person of life, liberty, or property, w/o due process of law.
= Constitution defines relations b/w people & their gov’t, not relations b/w people & each other.
= ISSUE: Is the action complained of attributable to the state, or to a private party?
If the latter, the Constitution provides no basis for a claim.
COURT: No constitutional claim.
DP Clause “is a limitation on the State’s power to act, not a guarantee of certain minimum levels of safety and security.”
Purpose was “to protect people from the State, not to ensure that the state protected them from each other.”
Confers “no affirmative right to gov’t’l aid, even where such aid must be necessary to secure liberty.”
A special relationship can’t create an affirmative duty to protect for the State b/c it didn’t deprive Joshua of his liberty at the time he suffered harm at his father’s house.
LIBERTY: PRIVILEGES OR IMMUNITIES AND DUE PROCESS OF LAW
Privileges or Immunities
5th Am: “Nor shall private property be taken for public use, w/o just compensation.”
Barron v. Baltimore
COURT: The Constitution binds the federal gov’t, not the gov’ts of individual states.
“The Constitution was ordained and established by the people of the US for themselves, for their own gov’t, and not for the gov’t of the individual states.”
The 5A must be understood as restraining the power of “the general gov’t, not as applicable to the states.”
The BoR “demanded security against the apprehended encroachments of the general gov’t—not against those of local gov’ts.
The Slaughter-House Cases
14th Am, S. 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US;
COURT: The P or I Cl of the 14A only protects those rts associated w/ federal citizenship.
History: 14A is part of the Reconstruction Ams. The Reconstruction Ams were about “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
“In any fair and just construction of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, [and] the evil which they were designed to remedy.”
Text: “The first part of the 14A “opens w/ a definition of citizenship—not only citizenship of the US, but citizenship of the states.”
“All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US of the State wherein they reside.”
This was an express grant of citizenship to the former slave.
Text: The sentence following the Citizenship Clause refers to one kind of citizenship—federal—but not the other.
= What kind of rights are granted by each kind of citizenship?
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.
OTOH, those privileges or immunities that are part of federal law are only those that relate to the citizen’s relationship to the federal gov’t. Those are the P o I of national citizenship.
= petitioning federal gov’t for redress of grievances; access waters of the US; petitioning for writ of habeas corpus—not practicing butchery in the manner of one’s choice.
Federalism: If the P o F Cl were interpreted to grant the federal gov’t the power to protect fundamental and civil rights from the states, then Congress could pass laws to restrict states’ protection of those rights.
DISSENT (Field): This language was intended 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 gov’ts. The butchery statute violated that right.
Incorporation Doctrine
Introduction
14th Am, S. 1: nor shall any State deprive any person of life, liberty, or property, w/o DP of law;
1st Am: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the gov’t for a redress of grievances.
5th Am: … nor shall private property be taken for public use, w/o just compensation.
2nd Am: 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 DP of law protect the individual rights granted by the BoR from the individual states?
Ex. Does the liberty component of the DP Cl protect you from State infringements on your freedom of speech or religion to the same extent the 1A protects you from Federal infringements on those same rights?
TOTAL INCORPORATION: The 14A’s DP Cl requires the individual states to respect al of the rights enumerated in the BoR.
Selective Incorporation
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 Cl of the 14A’s protection to the individual from deprivations of their “liberty w/o DP of law.”
= EFFECT: If a right granted by an amendment in the BoR is found to be incorporated by the DP 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.
DC v. Heller (2008): DC’s law banning possession of handguns and requiring that any guns kept in the home be kept locked and unloaded violates the 2A.
HOLDING: 2A protects the individual’s right to bear and keep arms in self-defense unconnected to militia service.
Q: Does the DP Cl of the 14A Incorporate the 2A?
Incorporation TEST: Is the 2A’s right to bear and keep arms in self-defense “fundamental to the American scheme of ordered liberty and system of justice” or “deeply rooted in our Nati

which have supervened” must be irrelevant to the constitutional Q at issue in this case.
“The judicial function is that of interpretation; it doesn’t include the power of amendment under the guise of interpretation.”
Williamson v. Lee Optical
Rational Basis Review (“R/B/R”)
Carolene Products: “Regulatory legislation affecting ordinary commercial transactions isn’t to be pronounced unconstitutional unless in light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis.”
TEST: Such legislation “is presumed to be valid and will be sustained” if it is “rationally related to a legitimate state interest.”
COURT: The statute is valid.
“It’s for the legislature, not the cts, to balance the advantages and disadvantages of” barring opticians from these activities on the ground they’re not licensed.
Even though many of the services opticians provide aren’t dependent on a prescription, “the legislature might have concluded that one was needed often enough to require one in every case.”
RULE: A ct engaging in R/B/R can supply any reasonable justification for the law under review, even those that the legislature itself may not have considered when it passed the law.
“The law need not be in every respect logically consistent w/ its aims to be constitutional. It’s enough that there’s an evil at hand for correction, and that I might be though that the particular legislative measure was a rational way to correct it.”
& Fundamental Rights:
Introduction
Def liberty: freedom from restraint. “The right of the individual to K, to engage in any of the common occupations 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 as essential to the orderly pursuit of happiness by free me.” –Meyer
Which rights are “fundamental”?
TESTs:
Is the alleged rt expressly enumerated by the BoR?
If not, is the alleged rt essential to individual liberty in our society?
Or, is the right deeply rooted in this country’s history and tradition?
Why grant laws abridging these rights more searching review?
Personal rts such as speech, association, belief, and familial privacy are more deserving of judicial protection than purely economic rights
Legislatures deserve more deference in economic matters than personal.