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Constitutional Law II
St. Johns University School of Law
DeGirolami, Marc O.

CON LAW II DEGIROLAMI SPRING 2018
           
Article IV Interstate Comity: states are bound to one another as a Union
Full Faith and Credit Clause (sec. 1): “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State….”
 
Privileges AND Immunities Clause (sec. 2 cl. 1): “The Citizens of each State shall be entitled to all Privileges AND Immunities of Citizens in the several States.”
Forbids states from discriminating against out-of-staters w/respect to fundamental privileges and immunities of citizenship/civil rights that it accords its own citizens
Distinction between civil rights and political rights
States CAN discriminate w/ respect to state property or political rights (ie. state can charge out-of-staters higher fees to use state parks/ can forbid them from serving on juries)
Corfield v. Coryell- PA citizens took a boat to NJ, NJ law prohibited clam raking unless you’re a NJ citizen, boat was seized, PA citizens sued to reclaim the boat.
Holding: States only have to provide out-of-staters w/ fundamental rights. Clam raking not fundamental.
Justice Washington lists generally what headings fundamental rights would fall under à important b/c framers of the 14th amend. Privileges OR Immunities Clause cited this case repeatedly as evidence of what fundamental civil rights were
Only concerns rights given by states (a.k.a you get the rights by virtue of being a citizen of a state not by virtue of being a citizen of the U.S)
Issue raised: what does citizenship mean?
 
Fugitive Slave Clause (sec. 2 cl. 2): “No person held to service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
 
New States/Territories (sec. 3): “New States may be admitted by the Congress into the Union…The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States…”
Missouri Compromise-
Missouri requested admission as a state and at the time there were 22 states split evenly between slave and free states.
 Compromise was that Missouri was admitted as a slave state and Maine admitted as a free state
Congress prohibited slavery in new states and territories (from Louisiana Purchase) north of the Missouri Compromise Line
Dred Scott v. Sandford (1857)- Scott was a slave of Dr. Emerson in MI (slave state), was taken to IL (free state) for 2 yrs, was brought to Fort Snelling (another free state). At Fort Snelling he marries Harriet. One of their children was born on free soil and one born in MI. Emerson brought the whole family back go MI. Scott brought claim in MI claiming sojourn (ie. he said since he was present in free states he should now be free in MI).
Holding: Slaves are property, not citizens, and so cannot invoke federal diversity jurisdiction. Ct declares Missouri Compromise unconstitutional
Reasoning (Taney):
Citizenship issue àBefore 14th amend. there was no provision in the Constitution saying what constitutes a U.S citizen
Taney makes up the idea that the Constitution gives Congress the right to establish naturalization
Says no state can make ppl citizens of its own states then impose them on the rest of the nation (thus Scott is not a citizen of any state)
Says it’d be hypocritical to say Declaration of Independence applies to slaves b/c drafters owned slaves
Constitutionality of Missouri Compromise à Ct says the compromise’s restriction on holding slaves is unconstitutional b/c it deprives slave owners of property w/out due process (5th amend)
This point is reached b/c w/out diversity juris. the case would be dismissed for lack of SMJ
Taney says Congress doesn’t have plenary power over new territories according to Territories Clause b/c the clause only pertains to territory belonging to the U.S at the time of ratification
Creates substantive due process (protects substantive property right of slave holders in their slaves)
Ruling helps trigger the Civil War (1861-1865); Ct went out of their way to give extreme pro slavery opinion
 
Reconstruction (1865-1876)
Amendments (central purpose was to provide new birth of freedom for newly emancipated slaves):
13th amend. (1865)à abolished slavery
Sec. 1: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist w/in the U.S or any place subject to their juris”
Sec. 2: “Congress shall have the power to enforce this article by appropriate legislation.”
Plenary scope in terms of application to private/public parties (thus, no state action requirement)
Congress has the authority to prohibit private racial discrimination as part of its authority to eliminate the “badges and incidents of slavery.” Civil Rights Cases (1883).
Congress can pass direct and primary legislation; doesn’t need to wait for a violation to act; allows them to not only enforce but to define
Substantive scope (subject matter) is much narrower than 14th amend.
 
14th amend. (1868)
Sec. 5: “The Congress shall have power to enforce, by appropriate legislation the provisions of this article.”
Privileges OR Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the U.S.”
Due Process Clause: “Nor shall any State deprive any person of life, liberty, or property without due process of law.”
Directed at the states (5th amend. due process directed at fed. gov)
Has been held to incorporate Bill of Rights against the states
Has been the source of a set

n’t thought to be w/in the scope of the clause (eventually ruling was repudiated under EPC)
Bradley concurrence:
Attempts to distinguish case from Slaughterhouse companion case (he dissented there) by saying there’s a “wide difference in the respective spheres and destinies of man and woman”
If Bradwell were a man she would’ve won
14th amend. doesn’t provide women the fundamental right to vote
Minor v. Happersett (1875)- Missouri denies women the right to vote, women brings claim that voting is a fundamental right protected by Privileges OR Immunities Clause)
Problem: voting was historically considered a “political right” and it was considered permissible for a state to discriminate as to those
14th amend. didn’t create new voters; if the framers intended to make all citizens of the U.S. voters, they would’ve said so explicitly
Textual structural argumentsà
If voting is a fundamental privilege and immunity, when a citizen travels to another state they’d have to be able to vote (can’t be what is meant)
If suffrage was fundamental right and ALL ppl are intended to vote through the 14th amend, then why would it allow states to limit the right to vote (sec. 2: if any male of appropriate age is denied the right to vote, the state’s representation will be reduced)
If suffrage was a privilege or immunity why go to the trouble of passing 15th amend. if the 14th is sufficient to protect the right
Legalist opinion
Right was later politically NOT judicially rectified (19th amend)
Discrimination against Negros in the selection of jurors is a denial of equal protection of the law
Strauder v. West Virginia (1880)- West VA had a law that did not allow colored men to be members of the jury (discriminatory on its face). Strauder was convicted of murder.
Strauderà black and white jurors are different
Reasoning: “The law…shall be the same for the black as for the white” (originalist reading; equal means equal)
This case repudiates gov discrimination on the basis of race
Ct says if the law isn’t discriminatory on its face but its effect is discrimination those laws aren’t barred
Right is to “exemption from unfriendly legislation” (purpose)
Says black ppl exempt from implications of inferiority pg 1303
State CAN make discriminations just not on the basis of race/color