Constitutional Law II Outline

CONSTITUTIONAL LAW II
SPRING 2006
 
 
14TH AMENDMENT
 
14th: All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. “No state shall make or enforce a law which shall abridge the privileges or immunities of citizens of the US; 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 law.” 
A.     CASE:
ü       Since they are not “citizens” in the sense in which that word is used in the U.S. constitution, Negroes who were slaves in this country, or who are the descendents of such slaves, cannot bring suit in federal court. (Dred Scott)
B.      HISTORY:
A.     Bill of Rights
·         All 10 amendments were ratified at the same time and referred to as the Bill of Rights.
·         What are the first 5 words: “congress shall make no law,” thus the Bill of Rights were not applicable to the legislative branches of other states, only the federal government
·         So, back then you could go to jail for saying something bad about a state governor, but not the president. The state could even search your home unreasonably without suffering any consequences.
·         Today, of course, the restrictions on the federal government also apply to the state government
B.      Birth of the 14th
·         Prior to the 14th amendment, each slave was only 3/5 of a person, afterwards it turned into 5/5. Southern states are going to have more representatives in the house because they will have more people. So when 3/5 became 5/5, 17 new Congressional seats were created and the Southern States controlled the House of Representatives.  
·         Above all, they pass a constitutional amendment for the purpose of reversing a decision made by the supreme court
·         In the 14th Amendment, for the first time, the “m” word is in the constitution twice. This does not appear anywhere else prior to the 14th. “Male”. Females are excluded. 50 years after the ratification of the 14th Amendment, women got the right to vote.
The 14th was inactive for a period of time following the civil war and is believed to basically be a rewrite of the entire constitution
a.       Applicability to States
All of the rights laid out in the first ten amendments, only apply to the federal government and not the states. 
Then Congress decided to make the first ten amendments applicable to the states. “No states shall deny due process to any citizen.” They meant those things in the first 10 amendments. But they didn’t specify. 
Instead of restating the first 10 amendments, they simply referred to it. “Due process.”
If there is an assertion of the 14th Amendment then the following rights have been violated:
Equal Protection Clause: a person cannot be treated unequally by the states.
Due Process Clause: a person cannot have their property, liberty or life taken away without the due process provided by the states.
Privileges and Immunities: a person cannot be denied any privileges or immunities afforded to them by the states.  
It must be discrimination by the state government because the 14th Amendment prohibits governmental discrimination. You must find the presence of state action and governmental involvement!
b.      How to sue under the 14th
History
ü       The Supreme Court said that the 14th does not give the right to legislate private discrimination, only governmental discrimination. (Civil Rights Cases)
o        This case is responsible for the discrimination that blacks had to endure for the next 100 years. 
o        There must be a presence of a state action meaning governmental involvement.
o        Example: UF and STU decide that there are too many females so next term the universities are going to limit female acceptance to 10%. Now Tina sues under the 14th Amendment. Is there governmental involvement? YES à there is governmental involvement because UF is a state university; however the female student may also be able to sue STU as well. This is because STU (not direct government involvement) may be accepting government grants, Tina may be receiving governmental student loans…etc. Must figure out the governmental involvement in the operation of a private school (Moose Lodge)
Currently
·         The 14th amendment only applies to state governments and NOT private parties. Private parties may discriminate all they want. 
·         There are only two ways to sue under the 14th.
o        The government is a direct actor
o        Where a private actor discriminates against you and that private actor is connected in some fashion with the state
·         So get out a microscope and list every single interaction with the government
ü       Judicial enforcement of a private agreement constitutes state action for purposes of the fourteenth amendment. (Shelley)
ü       When a state becomes entangled in a private party’s actions so that the state and the private party have a symbiotic relationship, the private party must comply with the fourteenth amendment. (Burton)
o        The land and the building were publicly owned. The building was dedicated to “public uses” in performance of the authority’s “essential governmental functions”. 
o        The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City, from loans and revenue bonds and from the proceeds of rental and parking services out of which the loans and bonds were payable. 
o        Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the authority and were pay able out of public funds. 
o        The relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. 
§         Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. 
§         Similarly, its convenience for diners may well provide additional demand for the Authority’s parking facilities. 
§         Clearly the profits earned by discrimination not only contribute to, but also are indispensable elements in the financial success of a governmental agency. 
ü       Merely granting a liquor license to a private club which engages in discriminatory practices is not sufficient state action to invoke the fourteenth amendment. (Moose)
o        Private discrimination does not violate the Equal Protection Clause if the private entity receives any states benefit or service. Otherwise, since state services include providing electricity, water, and police and fire protection, all private activity would be considered state activity. 
o        The state must have “significant” involvement in the discrimination in order to violate the 14th. 
o        There is no symbiotic relationship like the one in Burton v. Wilmington Parking Authority [state entanglement in private party’s action creating symbiotic relationship indicate state action]. In Burton, the private lessee obtained the benefit of locating in a building own by the state created parking authority, and the parking authority was enabled to carry out its primary public purpose of furnishing parking space by advantageously leasing portions of the building constructed for that purpose to commercial lessees such as the owner of the Eagle Restaurant.
o        Moose lodge owns its own building and clearly proclaims that it is not open to the public. Unlike Burton, the Moose Lodge building is located on land owned by it, not by any public authority. Far from apparently holding itself out as a place of public accommodation, Moose Lodge quite ostentatiously proclaims the fact that it is not open to the public at large. Nor is it located and operated in such surroundings that although private in name, it discharges a function or performs a service that would otherwise in all likelihood be performed by the state. 
o        In short, while Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building. 
Enabling Clause
The enabling clause is the last sentence of the 14th Amendment and it states: “we the Congress of the United States can write laws to ensure these things are done; to ensure that the states must provide privileges and immunities, due process and equal protection of the law.
By adding this clause, Congress added another item under Article I, section 8 that was not originally covered under Article I.
The enabling clause was the authority of Congress to write the Civil Rights Act. 
 
BILL OF RIGHTS INCORPORATION
A.     Fifth
·         5th Amendment: incorporated into the Due Process Clause of the 14th Amendment except for clause guaranteeing criminal prosecution only on a grand jury indictment.
Fifth amendment clause guaranteeing criminal prosecution only on a grand jury indictment
Seventh amendment right to a jury in a civil trial.
·         Also the privilege against self-incrimination is now incorporated into the 14th Amendment. NOW, people cannot be compelled to self-incriminate themselves.
 
B.      CASE
The Fifth Amendment was not to be incorporated into the fourteenth. (Palko, 1937)
Double jeopardy prohibition of the Fifth Amendment represents fundamental ideal in constitutional heritage and it applies to the states through the Fourteenth Amendment; overruling Palko. (Benton, 1968)
–          The equal protection clause is responsible for more than a 1/3 of all of the cases heard by the SC. 
 
13TH AMENDMENT
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 US, or any place subject to their jurisdiction”
A.     History
There were states in the north that still had slavery after the civil war. 
This is because the emancipation proclamation only freed the slaves in the southern states. The 13th amendment freed the slaves. 
The 13th amendment is not directed toward the federal government, or the state government. It is directed at everyone. It is broad. It covers federal/state/ and even private people. It does not require state action!
If an individual brings someone into the US and they are a slave, this is a violation of the 13th. This slave could sue you civilly, or even the government could punish you. 
 
CONTRACTS CLAUSE
Article 1, §10 – Constitution forbids states from making laws impairing obligations of contracts
A.     Generally
This applies to both state and federal governments
There are two provisions that deal with economic rights: the DP of the 14th which says the government can’t take your property. This could mean how much you charge or pay someone, assuming these are property rights. The other is the Contracts clause.
The clause has a different meaning depending on whether the government is impairing its own contracts or contracts between private parties.
Public contracts: if the state government is trying to escape from its own financial obligations, then the Court will closely scrutinize this attempt.
Here, the state’s attempt to “weasel” will be struck down unless the modification is “reasonable and necessary to support an important public purpose.” (basically middle level review)
If gov’t interruption is predicated on economic view of gov’t then the interrupting statute will be held unconstitutional (won’t open back door to let out gov’t so easily)
If gov’t interrupting statute is predicated on a police power of the gov’t (health, safety, education of its citizens (gov’t statute usually upheld)
If the government (state or federal) contracts away any of its police power as part of contract — the contract will be declared null and void…government cannot contract away its police powers.
Private contracts: but when the state is re-writing contracts made by private parties, the judicial review is not so stringent.
Even a substantial modification to contract between private parties will be allowed so long as the state is reasonably in pursuit of a legitimate public purpose. (Mere rationality review)
Incidental effects on contracts: even this mere rationality standard applies only where the state takes an action that is specifically directed at contractual obligations.
If the state applies a generally applicable rule of conduct that has the incidental by-product of impairing contractual obligations, the Contracts clause does not apply at all.
B.      How to attack a contracts clause question
1.       There must be a substantial impairment of the preexisting valid contract.  
2.       The reason why the government has interfered has to be an important and legitimate government interest. It must be a non-economic legitimate reason.
3.       It must be narrowly tailored, meaning the legislation undertaken by the state is legislation for which there is no lesser restrictive method. If there is 
4.       Standards:
a.       If there is a person to state contract, and the state relinquishes obligation by statute, the state must show a compelling reason (police power) for what they did.
                                      i.      Say state A says if B corporation moves into the state they don’t have to pay taxes. Years later state needs money and decides to tax 100 B corporations to raise the money
                                    ii.      Now that the state is a party to the contract, they have to show a compelling interest. 
                                  iii.      The bottom line is… money is not a compelling interest. The government is going to show a whole lot more.   There are other ways to make money. 
                                   iv.      Gov’t is going to have to maintain that there was no other way of achieving their objective. 
                                     v.      Money is usually never going to work under a compelling interest. It’s even tough for rational basis. 
b.       If they are not a party, they just have to show rational basis. 
5.       Prospective v. Retroactive:
a.       The government interference can’t be retroactive. It must be prospective. 
b.       Let’s say A and B have a marijuana sales contract, and it is legal. Then the government makes a law that says it is illegal. They can’t prosecute in the first couple of years when it was legal. 
C.     Case Law
ü       It is for the judiciary to evaluate the reasonableness of state regulation. In mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. (Munn)
ü       Legislations that interfere with an individual’s right to contract must directly relate to the goal of protecting public health or safety and must have an appropriate and legitimate end. (Lochner)
o        State can’t limit the number of hours a baker can work, but can for a mine worker
ü       A law that prescribes minimum wages for women is unconstitutional as it is not related to protecting the health, safety, morals and general welfare of society. (Adkins)
o        The key here is that the court did not believe that setting minimum wage law for women was necessary to protect the health, safety, morals and general welfare of society as a whole and, even if remotely related, that the minimum wage was not a legitimate and adequate end protecting these goals
ü       The court reaffirmed Adkins in 1936, in Morehead, which also declared unconstitutional a state minimum wage law for women. In Morehead, like in Adkins, the Court found that the minimum wage law impermissibly interfered with freedom of contract because it did not serve a valid state police purpose. (Morehead)
ü       Regulation that is reasonable in relation to its subject and is adopted in the interest of the community satisfies the DP clause of the 14th amendment. (West coast)
o        The liberty safeguarded in the constitution is liberty in a social organization that required the protection of law against evils that threaten the health, safety, morals and welfare of the people
o        It is thus subject to the restrain of DP, and regulation that is reasonable in relation to its subject and is adopted in the interest of the community is DP. 
 
EX POST FACTO
Article I section 9, clause 3: No Ex post facto laws can be issue by the feds or state.  
Article I section 10: No Ex Post Facto laws can be issued by the states
A.     Application
Only applies to criminal law. 
Does not apply to civil law.
B.      Retroactivity
The government cannot make something criminal retroactively. They can make something criminal in the future. 
Government cannot say anyone in possession of tobacco can be criminally prosecuted and prosecute those who were in possession of tobacco in the years prior to the statute.
Government cannot increase punishment retroactively. 
Look at the date of the statute, from that moment on, that’s it. 
C.     Civil/Criminal
Let’s say you did all 5 years of a sentence. Then the state added a law that said you have to see a shrink after the 5 years and if you are still a pedophile, you have to go to a mental hospital to be cured.   Is this ex post facto? No. Because it is not criminal. It is civil. 
Always look for an ex post facto question that deals with a civil matter
D.     Examples
Take the common law of rape. You have