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




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

Individual Rights Before the Civil War

The Bill of Rights consists of the first 10 amendments of the Constitution — their principal purpose is to protect the individual against various forms of interference by the federal government
The SC decided that the guarantees of the Bill of Rights weren’t directly binding upon state governments

Barron v. Mayor and City Council of Baltimore (o1833): Barron owned a wharf in Baltimore & the city diverted streams near the wharf which made the wharf really shallow for most vessels to use. He invoked the Takings Clause of the 5th Amendment arguing that the state violated it by taking his property for public use without just compensation.

Bill of Rights applied only to the federal govt, not state/local govt. If the framers intended the Bill of Rights amendments to apply to the states, they would’ve expressed it plainly

Slavery in the Original Constitution

Article 1, §2, Cl. 3: required appointment of seats in the H of R on the basis of the “whole number of free persons” in each state, minus the number of “Indians not taxed,” plus “3/5 of all other persons”
Article 1, §9, Cl. 1: prohibited Congress from outlawing the “importation of such persons as any of the states now existing shall think proper” until 1808
Article 4, §2, Cl. 3: required states to deliver up any person held to service or labour in one state who had escaped into their territory (fugitive slaves)

Congress was unable to solve the slavery issue in a way that would satisfy both the North and the South — enacted the MO Compromise (1820), the Compromise of 1850, and the Kansas-Nebraska Act of 1854

Dred Scott v. Sandford (1857): slave was taken to free states and tried to gain freedom saying residence in free states had granted him freedom by suing owner

Jurisdictional question: slaves are not citizens who can sue under the Constitution & the framers would’ve stated clearly if they had intended for slaves to be citizens (originalism). Also, the Constitution states that slaves are separate classes of people (constitutional structure)
Question on the merits: the court went beyond what it needed to do by attempting to address slavery issue because Congress didn’t seem to do it effectively (textualism)

Post- Civil War Amendments

13th Amendment: gave constitutional weight to Lincoln’s Emancipation Proclamation
14th Amendment: overruled Dred Scott, making all persons born in the U.S. citizens of the nation
15th Amendment: spoke explicitly about racial discrimination in voting

All of the amendments had enforcement provisions, authorizing Congress to enact legislation to enforce the provisions

Slaughterhouse Cases (1873) — right to practice one’s calling

Louisiana passed a law that gave a monopoly on NOLA-area slaughterhouses to a company and butchers not included in the monopoly said that it deprived them of their ability to practice their trade & violated the 13th (created involuntary servitude) & 14th Amendments (abridges privileges & immunities AND denies equal protection & due process) as a result.

Main issue: the monopoly was a denial of the privileges and immunities (clause in the 14th Amendment stating that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) of Louisiana citizenship, including the right to practice one’s calling
Rejected all of the butchers’ claims, specifically saying that the privileges & immunities clause was not meant to protect individuals from state govt actions, just from federal actions. The privileges & immunities clause the butchers rely on (Article IV, §2) are those that belong to citizens of the States and are left to state govts for security and protection. It was not intended that the protection of the civil rights protected in Article IV should be transferred from the states to the fed. govt. The right to practice one’s calling is under the domain of the states, not the fed. govt. and so butchers should look to LA law for protection, and if there is no protection under LA law, the butchers are shit out of luck since the 14th Amendment privileges & immunities clause only protected rights that owed their existence to the federal government (rights like assembly, use navigable waters of U.S., etc)

Article IV §2: “The Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”
14th Amendment: Distinguishes between U.S. Citizenship (need to be born/naturalized) and state citizenship (need to be resident)

Impact: Although the language of the privileges & immunities clause is about substantive matters, the decision prevented the use of the clause in future cases to expand substantive individual rights
Resurrection of Privileges & Immunities of National Citizenship: Right to Travel and Durational Residency Requirements

Saenz v. Roe (1999) — right to travel interstate | strict scrutiny

CA had a state law, which under congressional authority, said that anyone who had resided in the state for less than 1 year would receive welfare benefits no greater than the level of benefits the person had received in their prior state of residents (main purpose was really to deter poor people from migrating to CA)
the privileges & immunities clause protected the right to travel, and the CA law violated that — the right of a person who has recently become a citizen of a state to enjoy the same privileges enjoyed by longer standing citizens of the state (in this case, welfare). Welfare isn’t like other benefits like in-state tuition and divorce which are portable benefits — welfare money would be used in the state and the state would directly benefit

The right to travel under the privileges & immunities clause has 3 components:

Right to enter and leave another state
Right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state (Article IV, §2 – citizens of one state entitled to all the the privileges and immunities of citizens of the several states)
Right to be treated like other citizens of that state when you become a resident of that state (14th Amendment P&I clause – status as citizen of the U.S.) — at issue in this case

The Incorporation of the Bill of Rights through the Due Process Clause

Due Process Clauses:

5th Amendment: “No person shall be…deprived of life, liberty, or property without due process of law…”
14th Amendment: “…nor shall any State deprive any person of life, liberty, or property without due process of the law
Due process has come to mean (1) notice and (2) the opportunity to be heard (procedural due process)

Palko v. Connecticut (1937) — selective incorporation

CT had a law that allowed prosecution to appeal any errors of law in a criminal trial. The defendant was tried and convicted of murder and the prosecution appealed after finding errors of law. The court ordered a new trial at which defendant was found guilty of murder and sentenced to death, to which he objected on 5th Amendment double jeopardy grounds saying that whatever would be a violation of the original Bill of rights if done by the fed. govt. is also equally unlawful for a state to do because of the 14th Amendment due process clause.

prohibition on grounds of due process that prohibited the interstate shipment of filled milk which was skimmed milk mixed with non-milk fats because they were considered to be a fraud to the public Issue: Whether the rational basis test is the appropriate judicial review for congressional legislation of common commercial products.Holding: Judicial review is improper unless it is clear there is no rational basis for Congresss judgment. Specifically, the application of heightened scrutiny may be appropriate in cases in which legislation violates the Constitution on its face, attempts to distort or rig the political process, or discriminates against discrete or insular minorities.Rational basis review of the legislatures judgment is sufficient in this case — the law is rationally related to the publics health and safety interests in consuming nutritious milkFOOTNOTE #4

Economic & Social Legislation — courts should presume to be constitutional (apply mere rationality standard from now on)
Can use heightened judicial scrutiny (either intermediate or strict) for legislation that:

Appears on its face to be within a specific prohibition of the Constitution (like the Bill of Rights) OR
Restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation OR

The court should step in when it looks like political processes are breaking down and people will no longer be able to express their interests

Is directed at particular religious, or national, or racial minorities

Where prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities

< >Minimum Rationality Review of Economic Legislation — aftermath of Carolene ProductsCarolene Products’ minimal rational basis review continues to govern due process review of economic legislation — the “means” need only be “rationally related” to the governmental end/purposeWilliamson v. Lee Optical Co. (1955) — optician/economic legislation | mere rationality reviewFacts: There was a statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or ophthalmologistHolding (Justice Douglas): Upheld the statute because it was a rational health measure and because the legislature “might have concluded” that in some instances prescriptions were necessary to permit accurate fitting, or that eye exams were so critical that every change in frames etc. needed a prescription from a medical expert. The court shouldn’t use the due process clause to strike down state laws that regulate business and industry simply because they aren’t in line with a certain school of thoughtAs long as there is a legit purpose and as long as the law is reasonable, it should be upheldCourt hypothesized a legislative reason that may or may not have been true — leaves defs with burden of rebutting BOTH actual legislative reasons & everything the legislature “might have” considered