Constitutional Law II Outline

CONSTITUTIONAL LAW II OUTLINE – FALL 2009 – BESCHLE

I. INTRODUCTION TO THE XIV AMENDMENT
a. History Behind the Structural Decision (Federalism Question)
i. Original Constitution did not include the Bill of Rights
1. Rationale: the structures could take care of themselves and limit the government
ii. The Bill of Rights Limit
1. Barron v. Baltimore àFederal action not state and local conduct
a. First word of the first amendment is Congress it doesn’t say anything about the states
iii. Aftermath of the Civil War created a revolution in this area in reaction to a clear recognition of the limitations of the notion that people don’t have to fear their states
1. 3 new amendments were enacted
a. 13th – slavery abolished
b. 15th – provides the right to vote be not denied on the grounds of race
c. 14th – regulates the states and what they can do and it has 3 substantive provisions in section 1 (overruled Barron)
i. states shall not take life, liberty, or property without due process
ii. state shall not deny equal protection of the laws
iii. states are prohibited from denying to their citizens any of the privileges and immunities of the citizens of the United States
iv. Applying the 14th Amendment for the First Time:
1. Slaughterhouse Cases – interpreted the privileges and immunities clause of the 14th Amendment and court was extremely reluctant to take anything but a narrow view of what the 14th amendment did
a. Distinctions between federal and state citizenship
i. Deprivation of right must flow from government action
ii. Privileges and immunities extends to citizens
iii. Privileges and immunities clause bars the state from abridging rights incidental to national citizenship
iv. Dissent argues that states cannot violate unwritten fundamental rights of all citizens
v. Dicta suggest that the Bill of Rights are not a bar on states over privileges and immunities incidental to state citizenship
b. Black / Frankfurter Arguments
i. Black – argues that the 14th amendment is a total incorporation of only the enumerated bill of rights
ii. Frankfurter – argues for selective incorporation
1. Not limited to enumerated rights
2. Incorporates some rights not all rights
3. Not limited to the bill of rights
II. PROCEDURAL DUE PROCESS
a. Requires that before a person is deprived of life, liberty, or property he must be given notice of the case against him and opportunity to meet it
b. Louder
c. Question #1: whether there is an interest that cannot be taken away without due process of law
i. Property interest:
1. Contract or statutory
2. Cleveland Board of Education v. Loudermill – Security guard expected to be fired only for good cause, as it said in the statute. He was fired.
a. Property interest was created and defined by statute
b. Legislature can choose not to confer a benefit, but once conferred, cannot be revoked without due process
ii. Liberty interest:
1. Paul v. Davis – police placed Davis on a list of active shoplifters and circulated it to local merchants. David contended that he had a liberty interest in his reputation
a. Reputation alone is insufficient to trigger due process
d. Question #2: What kind of Process is Due?
i. Balancing Test: Matthews v. Eldridge
1. How important the private interest is that will be affected by official action is to the recipient
2. The governments interest in denying the procedural right that is being sought
3. The risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional safeguards
ii. Despite the balancing nature of the inquiry there is one thing that our individual is going to be entitled to à notice
iii. Usually requires some kind of hearing with an impartial decision maker
iv. Right of the appeal of an initial decision has never been held to be a constitutional right … though every state provides an opportunity to appeal
III. SUBSTANTIVE DUE PROCESS
a. ECONOMIC RIGHTS
i. Lochner held that due process protects unenumerated economic rights
ii. After Lochner court began eroding the doctrine by applying minimal scrutiny to economic regulations
1. Any conceivable state of facts known or could that the state could reasonable assume would justify an economic regulation
2. The result was a complete abrogation of fundamental economic rights
b. MODERN REVIVAL OF SUBSTANTIVE DUE PROCESS: PRIVACY RIGHTS – court began to recognize fundamental unwritten noneconomic rights critical to human autonomy that are protected by due process
i. Meyer v. Nebraska – statute prohibiting the teaching of German to children struck down. Court opined that substantive liberty includes unwritten liberty interests like acquiring knowledge, marriage, establish a home, and enjoy privileges essential to the orderly pursuit of happiness by free men.
ii. Pierce v. Society of Sisters – statute requiring children to attend only public schools interfered with parental right to educate children under their control – due process includes the liberty of parents and guardians to direct the upbringing and ed