CONSTITUTIONAL LAW II
FALL 2004
PROF. BECKER
I VIEW OF CONSTITUTIONAL PROBLEMS
A. Textual Conflicts Between the Constitution and Statute
1. Article 6 – “Supremacy Clause”: provides that “this Constitution and the laws of the United States which shall be made
in pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the Land, and the judges in every state shall be bound thereby; anything in the Constitution or laws of any State to the contrary notwithstanding.” (establishes Constitution’s authority)
2. In order to resolve any textual conflict, just look at the conflicting sources.
B. Interpretative Conflict Between the Court’s View of the Constitutional and a Statute/Lower Federal
Court/State Court’s View
1. The framers of the Constitution purposely used vague and ambiguous language in drafting in order to allow
interpretation of the Constitution to shift in reflection of societal changes – fosters a preservation of the document.
2. In order to resolve any interpretative conflict, must look to constitutional case law to determine how the Supreme Court
has viewed a particular constitutional principle.
C. In Constitutional Law, the issues are always the same – Whether a portion of a statute or a governmental
action is in violation with a particular portion of the Constitution.
II LIMITATION ON POWER AND STATE ACTION REQUIREMENT
A. Constitutional Restrictions on Power Over Individuals
1. BILL OF RIGHTS (include all amendments on a separate sheet)
a. The Bill of Rights was created to appease the states in their concern about an extremely powerful federal
government; the purpose of the Bill was to enumerate what the federal government could not do à directed against the federal government[1]; the end of the Civil War brought about the legislation of the Thirteenth, Fourteenth, and Fifteenth Amendments.
i. Barron v. Mayor of Baltimore(1833)[2] – The Court held that the language of the first ten amendment were
only applicable towards the federal government. In this case, the government had re-routed streams which affected the plaintiff’s business and thereby violated the Takings Clause of the Fifth Amendment. The government (City of Baltimore) won because the Court believed that language of the Bill of Rights indicated clearly its application to the federal government and not state governments.
ii. Slaughterhouse Cases(1873) – This case is important because it features the fist time the newly enacted
Fourteenth Amendment was used to apply the Bill of Rights to the state governments. The Court held that the Fourteenth Amendment protects the privileges and immunities of national, not state, citizenship, and neither the Equal Protection, Due Process, or Privileges and Immunities Clause of that amendment may be used to interfere with state control of the privileges and immunities of state citizenship. (The Fourteenth Amendment applies only to former slaves – the narrow application resulted in this amendment losing some of its constitutional substance.)
iii. Twining v. New Jersey (1908) – Twining was convicted in New Jersey of fraud after he failed to testify on his
behalf. New Jersey did not include in its constitution a right against compelled self-incrimination. Twining challenged his conviction on the ground that the Fourteenth Amendment applied this right to the states. The Court held that the privilege against self-incrimination was included in the first ten amendments to the Constitution. The argument that this privilege is incorporated by the Fourteenth Amendment’s Privileges and Immunities Clause, and therefore applies to a state action, fails because this privilege is not a fundamental right, privilege or immunity of national citizenship. The argument that compelled self-incrimination is a denial of due process of law, and therefore incorporated by the Due Process Clause, also fails because the privilege is not an inalienable, fundamental right and historically was not part of the concept of due process.
iv. Palko v. Connecticut (1937) – Defendant was indicted in state court for first degree murder, but was found guilty
of the lesser included offense of second degree murder. On appeal, the appellate court remanded the case for a new trial because of defective jury instructions. During new trial, defendant was found guilty of first degree murder and sentenced to death. The defendant claimed his Fifth Amendment right against double jeopardy was being violated. The Court held that the Fifth Amendment was only applicable to the federal courts, and not the state courts. (BUT eventually, in Benton v. Maryland, the Supreme Court placed the “double jeopardy clause” within the funnel of incorporation – thereby making it applicable to the states as well as the federal government.)
v. Adamson v. California (1947) – The statute in question permitted the failure of a defendant to explain or to
deny evidence against him to be commented upon by court and by counsel and to be considered by court and jury. The Court held that the Due Process Clause does not protect, by virtue of its mere existence the accused’s freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. The Due Process Clause forbids compulsion to testify by fear by hurt, torture or exhaustion. It forbids any other type of coercion that falls within the scope of due process. (BUT eventually, in Griffin v. California (1965), the Supreme Court overruled Adamson and held that the Due Process Clause of the Fourteenth Amendment was violated by a prosecutor’s comments on a defendant’s silence.)
vi. Saenz v. Roe (1999) – When California discriminated against citizens who had resided in the state for less than
one year in distributing welfare benefits, the state statute was challenged and held to be unconstitutional by the Supreme Court. The Court held that the durational residency requirements violate the fundamental right to travel by denying a newly-arrived citizen the same privileges and immunities enjoyed by other citizens in the same state, and are therefore subject to strict liability.
VERY IMPORTANT DISTINCTION: The 14th Amendment’s Due Process Clause binds the states. But keep in mind that there is also a due process clause in the 5th Amendment, that is binding on the federal government. Both clauses have been interpreted the same way, so that any state action that would be forbidden by the 14th Amendment Due Process Clause is also forbidden to the federal government via the 5th Amendment Due Process Clause.
THE EFFECT OF THE FOURTEENTH AMENDMENT: THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT DIRECTLY IMPOSES ON THE STATES AND LOCAL GOVERNMENTS AS WELL THE REQUIREMENT THAT THEY NOT DEPRIVE ANYONE OF “LIFE, LIBERTY, OR PROPERTY” WITHOUT DUE PROCESS OF LAW. The Supreme Court has never said that due process requires the states to honor the Bill of Rights as a whole. Instead, the Court uses an approach called “selective incorporation.” Under this approach, each right of the Bill of Rights is examined to see whether it is of “fundamental” importance. If so, that right is “selectively incorporated” into the meaning of “due process” under the 14th Amendment, and is thus made binding on the states. (see below)
b. Incorporation Doctrine[3]: The process of applying the provisions of the Bill of Rights to the states by interpreting
the Fourteenth Amendment’s Due Process Clause as encompassing those provisions. The Supreme Court has incorporated the entire Bill of Rights, except the following provision: (1) the Second Amendment right to bear arms, (2) the Third Amendment prohibition of quartering soldiers, (3) the Fifth Amendment right to grand-jury indictment; (4) the Seventh Amendment right to jury trial in a civil case, and (5) the Eighth Amendment prohibition of excessive bail and fines.
THE SUPREME COURT, ON A CASE BY CASE BASIS, WAS ABLE TO HAVE THE MAJORITY OF THE BILL OF RIGHTS MADE APPLICABLE TO THE STATES[4] à THIS, IN TURN, GAVE LIFE TO THE FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE AND EQUAL PROTECTION CLAUSE.
INCORPORATION FUNNEL: incorporation of such rights into the definition of due process
Different amendments of the Bill
of Rights
Usually, such amendments
would only apply to the
federal gov’t without the implication of the Due Process Clause
funnel represents the Due
Process Clause of the 14th Am.
Application of the Bill
to the states
2. THIRTEENTH AMENDMENT: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
3. FOURTEENTH AMENDMENT[5]: All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
a. Privileges and Immunities Clause: “All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens o the United States and of the State wherein they reside. No State shall make or enforce a law which shall abridge the privileges and immunities of citizens of the United States.”
i. National Rights Only: This clause is very narrowly interpreted – it only protects the individual from state
interference with his rights of “national” citizenship. The most important of these rights of “national” citizenship are:
(A.)The right to travel from state to state (also protected by Equal Protection)
(B.)The right to vote in national elections.
ii. Right to Change State of Residence: The clause is most relevant where a state treats newly-arrived residents
less favorably than those who have resided in-state for a longer time; this violates the “right to travel,” protected by the clause. (Example: If a state gives newly-arrived residents lower w
rity(1961) – Wilmington Parking Authority leased space in a parking facility
to Eagle Coffee Shoppe for use as restaurant, and they refused to serve Burton, a black man. The Court held that racial discrimination by a business, which is located in and constitutes part of a state-owned public facility, is considered to be state action and is forbidden by the Fourteenth Amendment.
v. Lloyd Corp. v. Tanner (1972) – privately owned shopping mall can discriminate
vi. Shelley v. Kraemer(1948) – involved a “negative covenant” (precluded the sale of residential property to
African-Americans); historically viewed as private discrimination prior to this case coming up to the Supreme Court for judicial review. The Court reasoned that the negative covenants were being enforced by the state court system (b/c these covenants provided a cause of action for any neighbors who wanted to enforce it) by way of a court order – this constituted a significant governmental involvement in the enforcement of these covenants by the courts; Judicial enforcement of a private racially restrictive covenant is considered state action for purposes of the Fourteenth Amendment.
2. EXCLUSIVE PUBLIC FUNCTION: The Supreme Court has found that certain activities are so traditionally the exclusive
prerogative of the state that they constitute state action even when under taken by a private individual or organization. IF THE PRIVATE ACTOR IS PERFORMING A GOVERNMENTAL FUNCTION, THEN IT IS VIEWED AS A STATE ACTOR AND SUBJECT TO THE FOURTEENTH AMENDMENT. (private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government); (To date, only running a town and running an election for public office have been found to be such exclusive public functions.)
a. Marsh v. Alabama(1946) – Marsh, a Jehovah’s Witness, was convicted of criminal trespass in a company town for
distributing literature without permission of the town’s management. She appealed the conviction on First Amendment grounds. The Court held that the running of a town constitutes a public function normally undertaken by the state and therefore, constitutional compliance is required by the private corporate owner of the town.
b. Terry v. Adams (1953) – Democratic Party held primaries within the organization but African-Americans could not
vote in the primaries, even if they were members of the Democratic Party. The Court held that the Democratic Party was performing a governmental function.
c. Evans v. Newton(1966) – A U.S. senator executed a will that allocated a tract of land to the City of Macon, Georgia
after the death of his wife and daughters. The land was to be used as a recreational park to be utilized only by whites. The City would act as a trustee and a board of seven white individuals would oversee the park’s
[1] TODAY, the Bill applies equally to the states because of the Fourteenth Amendment Due Process Clause (Incorporation Doctrine to be discussed later)
[2]
[3] Prior to the Incorporation of the Fourth Amendment, Silver Platter Doctrine was followed; this principle allowed that a federal court could admit evidence obtained illegally by a state police officer as long as a federal officer did not participate in or request the search – this practice was eventually rejected by the Supreme Court in Elkins v. United States.
[4] Except for the requirements of a 12-person jury and a unanimous verdict, the Bill of Rights provisions that have been incorporated apply to the states exactly as they apply to the federal government.
[5] The Fourteenth Amendment was created in order to overrule the Dred Scott decision.
[6] Up to this point, the Fourteenth Amendment has been discussed in two contexts: as a restriction on the states and with regard to the Incorporation Doctrine. A third context relating to the Fourteenth Amendment emphasizes the application of this amendment to federal and state government action and not towards private action. In essence, private displays of discriminatory conduct are constitutionally sound.
[7] The Civil Rights Cases/United States v. Stanley (1883) – The 14th Amendment does not apply to the conduct of private persons, not considered state actors. The Court’s decision in this case rendered the Civil Rights Act of 1883 unconstitutional.
