Constitutional Law II
Wefing
Spring 2012
1. Bill of Rights and the Post-Civil War Amendments
a. Generally
i. Bill of Rights is the first 10 amendments to the Constitution. The first eight amendments detail protection of individual rights.
ii. Barron v. Mayor: Supreme Court ruled that the protection of individual liberties in the Bill of Rights applied only to the federal government, not to state or local governments. SCOTUS expressly held that the BOR was a restriction of federal actions, not state and local conduct.
1. Barron sued the city for taking his property without just compensation in violation of 5th Amendment. Justice Marshall denied protection.
2. From a modern perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet at the time of the decision, Barron made sense because faith in state constitutions and because of the shared understanding that the BOR was meant to apply only to federal government
b. Fourteenth Amendment: Primary goal is to protect former slaves
i. Three prongs
1. States cannot interfere with privileges and immunities
2. No violation of Due Process
3. No violation of Equal Protection
ii. Slaughter-House Cases: Court refuses to expand the privileges and immunities clause (or any other clause) to apply to the States.
1. Louisiana legislature granted monopoly in livestock/slaughterhouse business to New Orleans and a Corp therein. Butchers brought suit, arguing it violated their right to practice their trade, and invoked many of the provisions found within the newly formed amendments.
2. It would seem to be that the provisions of the BOR are the basic “privileges” and “immunities” possessed by all citizens. That argument, however, was foreclosed in the first Supreme Court case to interpret the 14th Amendment: the Slaughter-House Cases. SCOTUS narrowly construed all provisions and rejected the butcher’s challenge to the legislature of the monopoly.
a. Note: Court states the 13th and 14th Amendment were solely to protect former slaves
c. Revival of Privileges or Immunities Clause
i. Saenz v. Roe: First time in American history that SCOTUS used the privileges and immunities clause of the 14th Amendment to invalidate a state law (right to travel is a fundamental right)
1. Poor moved to California – perhaps for fiscal reasons, as CA’s welfare program was more substantial. State restricted welfare benefits for new residents.
2. Court states: new residents should be treated the same as longer term residents of the state – right to travel is protected by privileges and immunities of the 14th Amendment
a. Dissent: Rehnquist and Thomas – lamented the revival of the privileges and immunities clause as a basis for protecting rights
3. Note: Today, discrimination is still acceptable in terms of in-state tuition, for education, and in divorce
ii. Other cases
1. Crandall: Court invalidated a tax on passengers leaving the state via common carriers and emphasized the citizzen’s basic right to come of the seat of the national government
2. Edwards: Court invalidated a law making it a misdemeanor to bring into CA any indigent person who is not a resident of the State, knowing him to be an indigent person.
3. Shapiro: Court struck down a number of durational residency requirements that were preconditions for receiving state benefits – fundamental right; equal protection
d. Incorporation of the Bill of Rights Through the Due Process Clause
i. In 1897, SCOTUS ruled that the due process clause of the 14th Amendment prevents states from taking property without just compensation
1. Twinning v. NJ (1908): Due process clause of the 14th Amendment incorporates provisions of the BOR and thereby applies them to state and local governments
a. If the particular right is fundamental to the system of justice
2. Powell v. Alabama(1930): Due process clause of the 14th Amendment protects fundamental rights from state interference and that this can include BOR provisions.
a. Extends the right to counsel (6th Amendment), under due process; Court does not extend right to jury trial or indictment
ii. Debate over Incorporation
1. Once SCOTUS found that the due process clause of the 14th Amendment protected fundamental rights from state infringement, there was a major debate over which liberties are safeguarded
a. Total Incorporation: believed all the BOR should be deemed included in the due process clause of the 14th Amendment (Justices Black and Douglas)
b. Selective Incorporation: Believed that only some of the BOR were sufficiently fundamental to apply to state and local governments
i. Uses “fundamental fairness” test
2. Debate centered on three issues
a. History – whether the framers of the 14th Amendment intended for it to apply the BOR to the States. The historical argument is unresolvable; advocates on both sides have facts supporting their position.
b. Federalism. Opponents of total incorporation argued based on federalism: desirability of preserving state and local governing autonomy by freeing them from application of the BOR.
c. Appropriate Judicial Role – defenders of total incorporation argue that selective agreement gives judges far too much discretion in deciding what rights are fundamental
3. Current Law: What’s Incorporated?
a. In one sense, selective incorporation prevailed in this debate; SCOTUS has never endorsed the total incorporationist approach. However, total incorporationists largely succeeded in their objective – one by one – as SCOTUS found almost all of the provisions to be incorporated
b. Four provisions of the BOR that never have been incorporated and do not apply to state and local governments:
i. 3rd Amendment – right to not have soldiers quartered in a person’s home (moot)
ii. 5th Amendment – right to grand jury indictment in criminal cases is not incorporated.
iii. 7th Amendment – right to jury trial in civil cases is not incorporated States can therefore eliminate juries in some or even all civil suits without violating the Constitution
iv. 8th Amendment – prohibition of excessive fines
c. All the rest of the BOR have been deemed incorporated and applicable to the States (under the due process analysis)
ublic morals.
3. Court: Freedom of contract is no longer a fundamental right. Government can regulate to serve any legitimate purpose and the judiciary would defer to the legislature’s choices so long as they were reasonable
iii. For 40 years, the Court had refused to allow the government to regulate to equalize bargaining power; now it was permitted. More deference to legislature = more regulations.
1. The transition, however was not smooth. Morehead v. New York invalidated NY’s minimum wage law for women.
2. United States v. Carolene Products Co.: Court upheld the Filled Milk Act that prohibited “filled milk” – a substance obtained by mixing milk and vegetable oil.
a. Court: economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislature’s actual intent.
b. Court: “Regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such character as to preclude assumption it rests upon some rational basis.”
c. Double Standard: Court would defer to the government and uphold laws so long as they were reasonable. But this deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities.
i. Courts would generally presume that laws are constitutional
d. Carolene Products introduces the minimum “rational basis” standard that continues to the present to govern due process review of economic legislation – the easiest standard to meet (some rational basis for the law that was enacted, deference to the legislature)
i. Rational basis standard now used for economic legislation
iv. Since 1937, not one state or federal economic regulation has been found unconstitutional as infringing liberty of contract as protected by the due process clauses of the 5th and 14th Amendments. Court made it clear that economic regulation – laws regulating business and employment practices – will be upheld when challenged under the due process clause so long as they are rationally related to serve a legitimate government purpose (any goal not prohibited by the Constitution. Virtually any law can meet this very deferential requirement.
1. Williamson v. Lee Optical: SCOTUS upheld an OK statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist.
