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Constitutional Law II
St. Johns University School of Law
Salomone, Rosemary C.

Constitutional Law II

Rosemary Salomone

Spring 2015

The Post-Civil War Amendments and the “Incorporation” of Fundamental Rights

Individual Rights Before the Civil War

Framers of the Constitution were afraid of the federal government becoming a tyrannical government that resembled the monarchy so they drafted the Bill of Rights. (They felt assured that state governments would be a popular representation of the people – direct election of representatives.)

Baron v. Mayor and City Council of Baltimore (1833) – The court said that the Bill of Rights applied only to the federal government. (This case involved a 5th Amendment right to property violation.) 3 arguments:

Structural – If you look at the Constitution as a whole, it should have been in Article I section 9 or 10

Historical – Discussion on abuse of power concerned the federal government

Textual – Takings Clause

Slavery in the Constitution:

Article I section 2 Clause 3 – 3/5ths apportionment policy

Article I Section 9 Clause 1 – prohibited outlawing of slave trade until 1808

Article I Section 2 Clause 3 – Returning runaway slaves

Dred Scott v. Sanford (1857) – The court dismissed for lack of jurisdiction because Scott couldn’t be a citizen, and also attacked the case on its merits (thus invalidating the already ineffective Missouri Compromise).

à Scott couldn’t be a citizen because he was black and that contradicted the framers’ vision of a citizen.

à The Missouri Compromise was unconstitutional because it violated southern slaveholders’ 5th Amendment right to property.

Post-Civil War Amendments

13th Amendment (1865) – constitutionalized Lincoln’s Emancipation Proclamation

14th Amendment (188) – overruled Dred Scott, making all persons born in the US citizens of the nation

15th Amendment (1870) – spoke explicitly about racial discrimination in voting

Enforcement provisions – authorized Congress to enact legislation to enforce the provisions

Slaughter-House Cases (1873) – the court said that the 14th Amendment was intended to deal with race – narrow reading of the amendment. The butchers could not use it to strike down the state’s monopoly on slaughterhouses that excluded them.

Much of this case has been effectively overturned:

Procedural due process – property interests have expanded

Substantive due process – now recognized in certain cases of individual liberties

Equal protection – broadened beyond race (e.g. ethnicity and gender)

Privileges and Immunities – works to protects citizens of the state, not the United States

Resurrection of Privileges and Immunities of National Citizenship: Right to Travel and Durational Residency Requirements

Article IV Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

Right to Travel:

1) Right of a citizen of one state to enter and leave another state.

2) Right to be treated as a welcome visitor rather than an unfriendly alien

3) Right of travelers who elect to become permanent residents in the second state to be treated like other citizens of that state

Saenz v. Roe (1999) – This case concerned the 3rd component of the right to travel. This right is not an individual right; it derives from the structure of the federal union. The court used the P&I clause to find California’s welfare policy discriminatory (even though Congress had approved it…illogical?)

This case has generated little new case law leaving the P and I clause essentially unchanged in the long run.

Dissent – Dealt with the distinction between welfare benefits and other “portable benefits” like divorce or college tuition. The difference is that Welfare is more of a necessity.

Incorporation of the Bill of Rights through the Due process Clause

Palko v. Connecticutt (1937) – This case asked what rights were incorporated against the states under the 14th Amendment. Palko had argued that Connecticut violated the 5th Amendment’s double jeopardy guarantee when he had to have a re-trial for murder. He argued that whatever is forbidden by the 5th Amendment is forbidden against states by the 14th as well.

§ Cardozo articulated the case for “selective incorporation”

§ He said such treatment should apply only to fundamental rights like the right to free speech, which are “the very essence of a scheme of liberty” and of which “neither liberty nor justice would exist if they were sacrificed”.

o His articulation drew on the theory of natural law. (This theory originated from a mix of medieval Christian natural law theories and Hobbes’ revision of them. More importantly, John Locke incorporated it into his philosophical writings on government.) It emphasized the “God-given” rights to life, liberty and the pursuit of happiness.

Adamson v. California (1947) – Upheld Palko holding that the self-incrimination privileges of the 5th Amendment did not have to apply to states.

§ This case included a famous dissent by Black in which he proclaimed that due process requires “total incorporation” of the Bill of Rights guarantees.

(*** Cardozo said such rights should be selected in a process but today ultimately

aw setting an 8-hour work day for miners, because the nature of mining actually poses major health and safety concerns.

Lochner Strengths

Lochner Evils

– Reasonable and appropriate

– Right of the individual to his personal liberty


– Narrow view of permissible means

– Strictly scrutinizing the ends

– Comparing aspects of liberty as more fundamental than others

– Expansive view of liberty

Demise of Lochner

1905 (Lochner decided)

1932 – FDR’s new deal

Demise of Lochner after the New Deal

v Development of the “rational basis” standard

v Change in approach to substantive due process in the economic area

US v. Carolene – The court rejected a due process challenge to a federal prohibition of the interstate shipment of “filled milk”.

*Though the social public health legislation here was constitutional and should have been presumed to be constitutional, there may be exceptions (Footnote 4):

1) Where there is a clear violation of the first 10 amendments

2) Where the political process has broken down (this prong hasn’t been developed well)

3) Where there is prejudice against discrete and insular minorities – strict scrutiny analysis

Strict Scrutiny = governmental policy must be necessary and compelling to be unconstitutional – government must not rebut presumption

Williamson v. Lee Optical (1995) – The court used the “rational basis” standard to defer to state legislation forbidding opticians from fitting/duplicating lenses without a prescription from an ophtalmogists or optometrist.

Ø “Rational basis” – As long as there was some kind of “evil” (problem) the state was trying to remedy then the court would defer to the legislature.

o Adheres to Footnote 4 because this was economic/social legislation

1960s Revival of Individual Rights