Constitutional Law II Outline

Love
Con Law 2
Spring 2011
 
IMPORTANT: Professor believes Constitution is living, breathing document
–          Be careful if we’re dealing w/ 5th or 14th Amend
o   In DC, then under 5th; in sts, then under 14th Amend
–          Gay & lesbian classification is prime example for exam question
o   Look at how judge deals w/ this in Perry & compare w/ Holden Letter
 
I.                    “Fundamental” Rights Before Civil War
a.       Before 14th Amend, Constitution offered very few rights for individuals against sts
b.      Barron: BoR restricted only nat’l gov’t, not sts
                                                              i.      Facts: B’s suit v. city for ruining use of wharf in Baltimore. B argued under 5th Amend that private property shall not be taken for public use, w/o just compensation.
                                                            ii.      Analysis: SC rejected B’s argument. Constitution is not for gov’t of sts. Limitations in constitution restrain gov’t w/in constitution (fed’l gov’t). 5th Amend must be understood as restraining power of general gov’t, not applicable to sts.
c.       Wanted to incorp BoR through 14th
                                                              i.      One could read basic text “privileges” as to incorp 1st 8 BoR
 
ART. IV, SEC 2: PRIVILEGES & IMMUNITIES
 
II.                P&I Clause of Art IV, Sec 2
 
Art IV, Sec 2: citizens of each st shall be entitled to all [fundamental] P&I of citizens in several sts [& shall not be taken away w/o justification]  
a.       Only applies to US Citizens
                                                              i.      Corps can’t sue
b.      P&I serves as restrain on st efforts to bar out-of-st’ers from access to local resources
c.       Prevents st from discrimin against citizens of other sts in favor of its own
d.      Only w/ respect to those P&I bearing upon vitality of nation as single entity must st treat citizens, res & nonres, equally
e.       P&I doesn’t preclude discrimination against nonres where:
                                                              i.      There is substantial reason for difference in treatment; &
1.      Presence of nonres is source of particular evil
                                                            ii.      Discrimination practiced against nonres bears substantial relationship to st’s objectives (Piper)
1.      Are there less restrictive means available?
f.       One of privileges which P&I clause guarantees to citizens of st A is that of doing business in st B on terms substantial equality w/ citizens of that st (Toomer)
g.      Corfield: Added fundamental. Right to pursue common calling case. NJ law made it illegal to fish shores if out-of-st’ers. SC held that P&I are in their nature, fundamental. Sovereign may prohibit foreigners from taking shellfish. SC holds that right to fish oysters is not fundamental – these oysters are in protection of st of NJ.
                                                              i.      Named these fundamental rights: protection by gov’t, enjoyment of life, liberty, right to acquire/possess prop, obtain happiness/safety
h.      Baldwin: Added 2nd section – justification. MT hunting – nonres paid 7 ½ times as much as res, & 25 times as much as res. Only w/ respect to those P&I bearing upon vitality of nation as single entity must st treat all citizens, res & nonres, equally. P&I has been interpreted to prevent st from imposing unreasonable burdens on citizens of other sts (1) in pursuit of common calling w/in st, (2) in ownership & disposition of privately held property w/in st, & (3) in access to cts of st. Claim doesn’t fall w/in P&I b/c equality in access to MT elk isn’t basic to maintenance or well-being of Union. Appellants aren’t deprived of means of livelihood by system or of access to any part of st to which they may seek to travel. If P can’t prove that elk hunting is fundamental, then P loses & st wins
i.        Piper: restrictive definition of P&I. D (VT res, 400 yds from NH border) applied & passed NH’s bar. NH Board informed D that she would have to establish residence before being sworn in. Practice of law is privilege & is important to nat’l economy –practice of law has commercial & noncommercial role & duty that reinforces it as “fundamental” under P&I. Lawyer who champions unpopular causes surely is as important to maintenance or well being of Union. SC held that st law limiting bar admission to in-st residents violated P&I. St’s justifications neither advance substantial reason for discrimination nor demonstrate that discrimination practiced bears close relationship to objectives. Applied inter scrutiny.
j.        Privilege of Receiving Medical Services
                                                              i.      Bolton: SC held that those portions of GA abortion statute limiting abortion to GA res were unconstitutional. Just as P&I clause protects persons who enter other sts to ply trade, so must protect persons who enter GA seeking medical services
 
14TH AMEND: PRIVILEGES OR IMMUNITIES (PoI)
 
I.                   “Fundamental” Rights under Post-Civil War Amendments
a.       13th Amend gave Constitutional sanction to Pres Lincoln’s wartime Emancipation Proclamation, declaring that slavery nor servitude shall exist in US
b.      Before & after war, BoR did nothing to constrain st gov’t
                                                              i.      As result of Civil War, 3 Amends fundamentally transform system
                                                            ii.      Each of 3 Civil War Amends ended w/ section authorizing Congress to enact legis to enforce provisions
 
II.                PoI Clause of 14th Amend
 
14th Amend PoI: No st shall make or enforce any law which shall abridge the [fundamental] privileges or immunities of citizens of the US
Enumerated       Unenumerated
(privileges in BoR)    (Not in BoR)
 
a.       Can be read as substantive
                                                              i.      Perhaps privileges amounting to life, liberty & prop
                                                            ii.      Evidence that 14th PoI was intended to apply 1st 8 BoR to sts
b.      PoI gives rights only to citizens, not documented or undocumented aliens
                                                              i.      Under DPC, rights are bestowed upon person – broad word w/o distinction b/w permanent resident, undocumented alien
c.       Diff b/w P&I & PoI
                                                              i.      Under Art IV, Sec 2, citizen gets right to bring action against st in which it doesn’t reside, whereas 14th gives st’s citizen cause of action against own st
d.      Slaughter House: important case in meaning of PoI – limiting PoI to few rights of nat’l citizenship
                                                              i.      Facts: Action arose from challenge by possible competitors to st allowed monopoly. LA law granted monopoly to 1 slaughterhouse & others had to close. Monopoly had to rent space to others as common carrier & charge reg’d rate. Ps we