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

Con Law II
Spring 2017
Post-Civil War Amendments and the “Incorporation” of Fundamental Rights
Individual Rights Before the Civil War
Relatively few explicit references to individual rights in the original constitution
The ratification debates showed a demand for additional constitution protection of individual rights, to protect the people from the federal gov’t b/c this was post American revolution and feared the oppressing centralized gov’t
Barron v. Mayor and City of Baltimore (1833)
B was the owner of a wharf in Baltimore. In the course of street construction work, the city diverted several streams which deposited sand and earth near B’s wharf and made the water too shallow for most vessels. B claimed that the City violated the “5A guarantee that private property shall not be taken for public use, without just compensation” (takings clause)
Structural argument:
Art I §9à framers intention; §10à the specific state limitations
So if the framers intended for this state limitation, they would have included it
Historical argument:
Look at the initial debate, it was about fear of the federal gov’t
Textual argument:
Didn’t say anything about applying these provisions against state gov’t
Court says no. 5A only protects against federal action, not states
Slavery and the Original Constitution:
Art I §2, cl. 3: required apportionment of seats in the House of Reps on the basis of the “whole number of free persons” in each state minus the number of “Indians not taxed” plus “three fifths of all other persons”
3/5 compromise
Art I §9, cl. 1: prohibited Congress from outlawing the “importation of such persons as any of the states now existing shall think proper” until 1808
Prohibiting congress from outlawing slavery until 1808
Art IV §2,cl. 3: required states to deliver up any person held to service or labor in one state who had escaped into their territory
Fugitive slave law
Dred Scott v. Sanford (1857)
Scott belonged to Emerson, took him to free territories.  Scott argued that taken into free territories so he became free.
Two questions:
Jurisdictional Question: b/c this is diversity, and Scott isn’t a citizen so  no diversity jurisdiction
Originalism: original intent of the framers?
Blacks ≠ persons
Constitutional structure
Fugitive and slave trade clauses, uses other portions of the constitution
Question on the merits: textualism- probably didn’t need to decide at all, but they do and they overrule the Missouri Compromise
Congress did not have authority to adopt Missouri compromise to begin with [overruling Congress] The compromise unconstitutional under the 5th Amendment, it deprived slave owners of property without fair compensation (Slaves were considered property.)
The Aftermath of Dred Scott
Northerners were completely outraged, some believe this greatly influenced Lincoln’s Senate nomination, election for President and eventually secession/CW
The Post- Civil War Amendments
Enforcement provisions-authorized Congress to enact legislation to enforce the provisions
13A (1865): gave constitutional weight to Lincoln’s Emancipation Proclamation
14A (1868): overruled Dred Scott, making all persons born in the US citizens of the nation
15A (1870): spoke explicitly about racial discrimination in voting
Slaughter-House Cases (1873) (narrow reading of the Amendments)
Louisiana statute – granted to the Crescent City Live-Stock Landing and Slaughter-House Company the exclusive right to engage in the livestock landing and slaughterhouse business in an area that included the City of New Orleans
Legal Claims:
 13A- creates an involuntary servitude
14A- abridges the P&I of citizens of the US; denies the Equal Protection of the laws; deprives them of their property w/o due process
Court’s Analysis: (focuses on P&I Clause)
One pervading purpose of the 13A and 14Aà the security and firm establishment of the freedom of the slave race
P&I Clause- only applied to citizens of the US, not to individual states, it is not a broad source of substantive rights against the states
Comparing other provisions with language of 14A P&I Cl.
Art IV, §2 P&I Cl.: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
14A “citizenship clause”: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ….”
Resurrection of Privileges and Immunities of National Citizenship: Right to Travel
The Privileges and Immunities Clause- Art IV, §2
“the citizens of each state shall be entitled to all privileges and immunities of Citizens in the several States”
prevents a state from discriminating against out-of-staters, in favor of its own
P&I vs. The Dormant Commerce Clause
Corporations are not citizens under the P&I clause, so they can’t bring a claim under the clause
P&I protects only certain rights that are fundamental to the promotion of interstate harmony
There is no market participant exception to the P&I clause (it protects individual rights which apply to any state action whether sovereign or propriety)
Congress can’t consent to state acts that violate the P&I clause (the P&I clause is a rights provision that Congress cannot waste)
What Triggers Each:
P&I:  state discrimination against out-of-state residents on matters of fundamental concern
Dormant Commerce Clause: state regulation affecting interstate commerce
No market participation exception
Commerce clause: implied restraint on state regulatory powers- when state acts as market participant, no conflict b/w state regulation and federal regulatory authority arises
P &I: imposes a direct restraint on state action in the interests of interstate harmony, a concern that cuts across the market participant- market regulator distinction
Two-Step Analysis:
Does the policy burden one of those (fundamental) privileges and immunities protected by the Clause?
Seeking a job
Professional (not recreational license)
If yes, then….
The state must prove that:
Nonresidents are a peculiar source of the problem or evil the state is addressing
There is a substantial reason for the discrimination
The discriminatory action is substantially related the state’s interest in solving the problem
There are no less discriminatory alternatives available to the state
More Analysis:
What fundamental privilege or immunity was involved here?
Were non-residents a peculiar source of the evil?
Was there a substantial reason for the discrimination? What was the ordinance trying to achieve?
Was the discriminatory ordinance substantially related to the state’s interest in solving the problem? Was it carefully tailored?
Supreme Court of New Hampshire v. Piper (1985)
The State of NH limited admission to the state bar to residents of the state. Piper was a VT resident who lived about 400 yards from the NH border. She was ineligible to be admitted to the NH bar b/c she wasn’t a NH resident.
The State’s justification: Non-residents would be less likely to:
To become and remain familiar w/ local rules and procedures;
To behave ethically;
To be available for court proceedings (at times on short notice);
To do pro bono or other volunteer work in the state
Court held that it did not meet the test of substantiality, and that the means chosen do not bear the necessary relationship to the State’s objectives
The discrimination must be substantially related to a substantial state interest and Durational Residency Requirements
Subsequent Interpretations: Much of the court’s opinion in the Slaughter-House Cases effectively have been 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- remained unchanged for 126 years until 1999 in Saenz v. Roe (right to travel)
Saenz v. Roe (1999)
1992 CA law- limited the maximum welfare benefits available to a family that resided in the State to the amount payable by the State of the family’s prior residence
1996 federal Personal Responsibility and Work Opportunity Reconciliation Act – authorized a state receiving federal welfare funds to “apply to a family the rules (including benefits amounts) of the [welfare] program … of another State if the family has moved to the State from another State and has resided in the State f

vival to protect personal privacy (private decisions regarding family, reproduction, sex, and death)
procedural line of cases: procedural due process w/ emphasis on “property” and “liberty”
Substantive Due Process before the Civil War
Dred Scott v. Sanford (1857)
“[A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the law, could hardly be dignified with the name of due process of law”
suggested a substantive component to due process in the 5th Amendment
Economic and Social Developments and Theories
Developments: industrial revolution (disparities, increase in number of people who didn’t own their property; minimum wage)
Social conditions
Adam Smith: believed in Laissez-Faire (no gov’t meddling)
Herbert Spencer: social Darwinism (survival of the fittest) late 19th and early 20th centuries
Lochner v. New York (1905) (freedom to contract)
New York law made it a criminal offense for bakery owners to employ workers for more than 10 hours per day or 60 hours per week
He was convicted for violating the law regarding workers in his Utica, NY bakery
Claimed: NY law impermissibly burdened his right to contract under 14A due process clause
Held: the NY law is unconstitutional
Test used by the Court:
Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself or his family?
Purpose, Effect, and Means-End Relationship:
Purpose of statute: must be determined from the natural and legal effect when put into operation and not from the proclaimed purpose
The law had no such direct relation to and no such substantial effect upon the health of the employee
Rational Basis Review: applying a deferential level of scrutiny about the “means & ends”
Valid labor law? à No, the court rejects the means and the ends. Exercising scrutiny over legislation
This is not within the state’s police power to regulate labor
Valid Health Law? à No, this is merely a pretext for a labor law (pretext comes from McCulloch)
“The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own (labor).”
Three Themes of Lochner Era:
(1) The liberty of the due process clause protects rights, especially freedom of contract (substantive right)
(2) The state only may infringe liberty to achieve valid police purposes, specifically, to protect public purposes, specifically, to protect public health, safety, morals. The Court’s role is to insure that the state purposes is sufficiently compelling
(3) State regulation must be necessary to achieve the police purpose
Decline of Lochner: External Pressure/factors
Legal criticism from bench and bar
Economic realities of depression (people out of work)
Political pressures- New Deal agenda 
Change in court personnel
Switch in time that saved 9