CONSTITUTIONAL LAW II—Goldstein Fall 2015
MODES OF CONSTITUTIONAL INTERPRETATION
The Constitution means * because Article X Section Y says *
Gives us a vocabulary to use when arguing about the Constitution even if it doesn't answer the question
Originalism
Original intent
Those who wrote and ratified the constitution, what they intended it to mean
Look to the debates in PA; the federalist papers
Original understanding
means x, because at that time that is what people would have expected it to mean
Original public meaning
Don't look at what the authors intended, how people behaved, but what the language actually means
If the constitution is law, what it means is whatever a reasonable person would have understood based on the chosen language
“The Constitution means * because implicit in its structure is the idea *”
Federalism
Checks and balances
Rule of law
Griswold v. CT, Douglas
Precedent; Doctrine
“The Constitution means * because Case X says *”
Controversial – what if the precedent is wrong? Cases get overruled
Moral/Ethical
“The Constitution means * because * is the best moral interpretation of it.”
Thomas in affirmative action cases
Pragmatic; Consequential
“The Constitution means * because that will lead to the best consequences.”
Seems like more what legislatures do than what the courts do
Comparative
“The Constitution means * because other countries have interpreted similar language in their constitutions to mean *”
Evolving Consensus
“The Constitution means * because there is an evolving consensus in support of *”
Kennedy in Lawrence v. Texas,
STRUCTURAL ARGUMENTS
Brown v. Board: argued that the Court was legislating from the bench – violating separation of powers; intruding upon the rights of the States
Roe v. Wade: dissenters argued that the Constitution doesn't speak to the question of abortion – so the Court is legislating not interpreting; intruding on the domain of the states (violating federalism principles)
LEVELS OF REVIEW
Foundation primarily in Carolene Products, Footnote 4:
Heightened scrutiny may be appropriate in three situations:
Legislation which appears on its face to violate an express provision of the Constitution;
Legislation which restricts the political process or interferes with democracy; or
Legislation that affects discrete and insular minorities who are not protected by political process.
Based on idea that laws hurting political minority cannot be overturned through political process appropriate for courts to get involved
Rational basis: Law will be upheld if it bears some rational basis to achieving the end in which state has legitimate interest.
Washington v. Glucksberg: WA statute outlawing physician-assisted suicide rationally related to state’s interest of preserving human life and protecting integrity of medical profession.
Geduldig v. Aiello: CA statute defining disability that drew distinction between pregnant and non-pregnant women passed rational basis test.
Massachusetts Board of Retirement v. Murgia: Court applied rational basis test to MA statute requiring police officers to retire upon age 50 because aged were not “suspect class.”
Cleburne v. City of Cleburne Living Center: City ordinance requiring group homes for mentally disabled to acquire special use permits was unconstitutional under rational basis test.
Used to mean that any law examined under rational basis test would be upheld – but this is not true anymore.
Strict scrutiny:
Arose as we know it in the 1960s
Applied to “suspect” classifications which curtail rights of particular racial group – Korematsu , or burdens placed on fundamental rights
Typical justifications/criteria for “suspect class”: immutability, history of discrimination, less able to protect themselves through political process.
Loving v. Virginia: Even when law applies “equally” to all racial groups (e.g., prohibition against interracial marriage), it will still be subject to strict scrutiny if it articulates racial classification.
Regents of University of California v. Bakke: Medical school admissions policy which classified students based on race (affirmative action) held unconstitutional under strict scrutiny test; while university’s interest of obtaining educational benefits of diverse student body was compelling, its rigid quota was not narrowly tailored to meet that interest.
Parents Involved in Community Schools v. Seattle School District: Court applied strict scrutiny in examining school district plans which considered race when assigning children to schools, because plans made distinction based on race.
Laws which affect “fundamental interests” or “suspect classes” are upheld only if necessary to promote a “compelling state interest.”Korematsu.
Laws which do not affect such interests or classes are sustained if they bear rational relation to legitimate state end – rational basis test (above) applies.
Fundamental liberty interest: When law impedes fundamental liberty interest (e.g., abortion – Roe; marriage – Zablocki), it is subject to strict scrutiny.
Intermediate scrutiny:
Arose in 1970s after gender cases began coming before Court.
Craig v. Boren (1976): Gender classifications are constitutional only if they “serve important governmental objectives and are substantially related to achievement of those objectives.”
Substantially related à balancing test. With intermediate scrutiny, there is certain amount of constitutional discretion that didn’t exist in previous two-tier framework.
Weakens two-tier approach of rational basis/strict scrutiny.
Examples:
Mississippi University for Women v. Hogan (1982): Court applied intermediate scrutiny to Mississippi’s female-only policy for nursing school attendance and found Equal Protection violation; Mississippi had made no showing that the gender-based classification was substantially and directly related to its proposed compensatory objective.
Virginia v. United States (1996): Court applied intermediate scrutiny and determined that VMI’s men-only policy and inadequate school for women was equal protection violation; VA had shown no “exceedingly persuasive justification” for depriving women of VMI education.
Two-tier approach further weakened by affirmative action cases in later years, and is more complicated now.
When there is facially neutral statute or practice at issue, must ask: Is there discriminatory intent?
If yes à strict scrutiny.
If no à rational basis.
Washington v. Davis
Strict scrutiny
Intermediate scrutiny
Rational basis
End
Compelling
Important
Legitimate (deferential)
Means
Narrowly tailored
Substantially related
Rationally related
INCORPORATION CONTROVERSY & THE BILL OF RIGHTS
Barron v. Baltimore (1883)
FACTS: Plaintiff sues city of Baltimore for diverting streams and causing sediment to deposit next to his deep-water wharf, making it too shallow for boats to use; argues it’s a taking of his property w/o just compensation – violation of his 5th Amendment rights.
ISSUE: Does the 5th Amendment limit the power of state government?
HOLDING: (Marshall) 5th Amendment only limits power of federal government
Structural: The constitution is basically a design to impose limitations on the power of the fed gov’t
Intratextual: state powers are specifically enumerated (Art. I, Sec. 9 & 10; 10th Amend), so any time the Constitution speaks generally—like in the 5th Amendment—it restricts only the power of the federal government; when the constitution wants to limit the states it does so explicitly (see above)
Counterargument: Textual: “nor shall private property be taken w/o just compensation” – Doesn't say taken by the Federal government – it's not limited; silence should be used to include any government entity which takes private property for public use – federal or state
Significance: Bill of Rights doesn’t apply against the states
The Civil War Amendments
overturned slavery
equal protection, privileges and immunities, due process, citizenship
rights of U.S. citizens – Proposed and ratified in part bc 14th amend wasn't sufficient; southern states took action to deprive newly freed slaves the right to vote
Slaughter-House Cases (1873)
FACTS:
Butchers f
non-fundamental portions of the Bill of Rights not absorbed into 14th amend
Adamson v. California (1947)
Court held 5th amend guarantee against self-incrimination not applicable to states through 14th
dissent: supports total incorporation of Bill of Rights into 14th
Duncan v. Louisiana (1968)
Court held 6th amend right to jury trial was incorporated into state law through 14th
test for incorporation is whether the right in question is a fundamental principle of justice basic to American jurisprudential scheme à Since trial by jury is fundamental, it is incorporated
concurrence: still wants total incorporation, but is willing to go along with selective incorporation as an alternative
Caperton v. Massey Coal Co. (2009)
Court (Kennedy) required the recusal of a state supreme justice under the Due Process Clause
Roberts, Scalia, Thomas, and Alito – Noted that the Court has only traditionally recognized 2 instances where due process requires recusal: financial interest in outcome, criminal case involving contempt
As of today, most of the Bill of Rights applies as against the States
Exceptions:
3rd amendment right against quartering soldiers in your home
5th amendment right to a grand jury indictment (states can prosecute you without a grand jury indictment – only clause that hasn’t been incorporated)
7th amendment right to a jury in civil cases
8th amendment right against excessive fines
Note the undermining paradox of incorporating 5th: Both 14th and 5th have due process clause—framers wouldn’t have put them both in there if they meant the same thing…so how can the 14th be said to incorporate 5th amendment/whole Bill of Rights
14th Amendment Due Process Clause has been the vehicle for incorporation of many of these rights
SUBSTANTIVE DUE PROCESS: REGULATION OF BUSINESS, ETC.
Generally: the right to due process (before substantive due process) is a procedural right—it is the individual’s right not to be deprived of something BEFORE or WITHOUT a fair process; Substantive due process changes this
SDP gains popularity at turn of century (courts limit state government’s policing power to regulate the economy)
SDP as applied to economic regulation declines around New Deal
Non-economic SDP (privacy rights, right to marriage, etc.) rise after WWII
Lochner v. New York (1905)
FACTS: NY statute imposes criminal penalties for allowing or requiring an employee to work more than 60/week in a bakery. Bakery/employer challenged statute as interfering with right of contract between employer and employees in violation of the 14th amendment.
HOLDING: statute struck down as violating 14th – “liberty” protects individual freedom of contract
States do have police power to regulate the safety, health, morals, and general welfare of the public; but statute must have some relation to these things ^
The statute does not involve the safety, morals, or welfare of the public – good clean bread doesn't depend on a baker working less than 10 hours a day
**Court used a higher standard of review than rational basis
TEST: 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, or to enter into necessary and appropriate labor contracts?
