Con Law II focuses on some branch of gov’t (federal or state) that has violated the right of an individual citizen. There are no federalism or SoP issues here. The focus is mostly on rights protected by: 5A (DP, takings clause) and 14A (P/I, DP, EP), as well as Congress’ power to enforce 14A protections under 14A § 5.
The offending party determines under which A you can bring a claim of liberty/equality:
– federal gov’t: 5A
– state gov’t: 14A
There are 3 types of scrutiny. All have a similar structure: justification based upon a governmental end and the means of achieving that end.
Strict Scrutiny
Intermediate Scrutiny (Craig)
Deferential Review
END
compelling state interest
important
legitimate
MEANS
narrowly tailored
(right on target)
substantially related
(const. discretion)
rationally related
(somewhere in the ballpark)
Const. arguments:
– textualism: focus on the language of Const.; rarely resolves difficult questions of con law, but it provides a starting point for analysis
– originalism: try to figure out what the Framers intended
– structuralism: Const. means X b/c if you look at the values implicit in the structure, the Const. values this (Griswold v. CT: right to marital privacy is implicit in the structure of other protections)
– precedent/judicial doctrine: Const. means X b/c a prior case has held that the Const. means X (What if the precedent is wrong?)
– pragmatic/consequential: interpreting the Const. to mean X will have better consequences than interpreting it to mean Y (Is this legislating?)
– ethical/moral: giving words like “equality” and “liberty” content based on a vision of good and evil
– comparative const. interp.: Const. should mean X b/c other societies have understood a similar concept to mean X (ie. execution of minors)
DP: LIBERTY AND PROPERTY RIGHTS
Classifications have been used to describe the rights protected by DP clause in 5A and 14A:
– property rights v. personal rights
– procedural rights v. substantive rights
Incorporation
Incorporation involves the question of whether a fed const. right is also made applicable to the states via 14A. B/f 14A was adopted, the Ct held that the guarantees of the BoR did not apply against the states (Barron v. Baltimore, 1833). C.J. MARSHALL reasoned that when the Const. uses general language, it only limits the fed gov’t. When the Const. wanted to limit the states, it did so specifically (Art. I § 10).
After the Civil War, Congress passed 13-15A, which added new norms to the Const.
– 13A: slavery prohibited
– 14A: citizenship clause (designed to overrule Dred Scott), P/I, DP, and EP
– 15A: US citizens’ right to vote
Slaughter-House cases (MILLER, 1873) * 1st case to interpret Civil War As; US citizenship primary *
– facts: LA legislature restricts the locations of stock landings and slaughterhouses – go to certain s-h
– NOLA butchers challenge under 13A and 14A
– holding: butchers failed
amental fairness
– might overlap w/ BoR, but also may include some things that aren’t set out in BoR
– so, we have those rights not b/c they’re in the BoR, but b/c they’re based on notions of fundamental fairness
As that have been incorporated
As that have not been incorporated
– 1A
– 4A
– 5A (except grand jury indictment req’t)
– 6A
– 8A
– 2A: n/a to states
– 3A: has never been ruled upon
– 7A
NOTE: most of BoR has already been incorporated. Total was never adopted, so some form of selected was used.
Regulation of Business and Other Property Interests
100 yrs ago, substantive DP was in its heyday. S.Ct. found that there were substantive, not just procedural, meanings to 14A’s command that the states not deny liberty and property w/o DP. As such, fed cts limited state police power to regulate the economy. Substantive economic DP declined during the New Deal. Non-economic substantive rights (especially privacy) arose after WWII. Query whether the current Ct is shifting the emphasis back toward economic rights.
Subst. DP = 14A DP has a substantive component, which is centered in the word “liberty.”
