Constitutional Law II Outline
I. The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
A. The Road to Brown
Dred Scott v. Sanford
Plessy v. Ferguson
Brown v. Board of Education
B. Protection of Individual Rights Against the State
o The text of the Constitution (apart from the Bill of Rights) contains few provisions concerning individual liberties
o The seven articles of the Constitution are mainly about the structure of the government and not individual rights
o Framers believed that the enumeration of rights was unnecessary since they had created a government with limited powers and without the authority to violate basic liberties
o Enumeration of some rights in the Constitution would be incomplete and deny protection to those not listed
o The 9th Amendment was added to address the concern that enumeration would be incomplete {the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people}
o The Constitution was ratified with a request that it would be amended to add a Bill of Rights
o James Madison, in the first Congress, drafted 16 amendments 12 of which were ratified by Congress and 10 by the States
o The Bill of Rights are the first 10 amendments to the Constitution: first 8 detail protection of individual rights
Application of the Bill of Rights to the States
1. Rejection of application BEFORE the Civil War
The Bill of Rights are the first ten amendments to the Constitution
The first 8 Amendments detail protection of individual rights
Barron v. Mayor and City Council of Baltimore
1833
The protection of individual liberties in the Bill of Rights applied only to the federal government and not to state or local governments
Facts
Barron sued the City for taking property without just compensation in violation of the 5th Amendment.
Barron contended that the City ruined his wharf by diverting streams and thereby made the water too shallow for boats.
Issue
Whether the Bill of Rights applies to state and local governments.
Whether the Takings Clause of the 5th Amendment applied to the City.
Analysis
Chief Justice Marshall
The Constitution was ORDAINED and ESTABLISHED by the people of the United States for themselves, FOR THEIR OWN GOVERNMENT, and not for the government of the individual states.
Each state established a Constitution for itself and in that Constitution provided such limitations and restrictions on the powers of its particular government.
Thus: The 5th Amendment must be understood as restraining the power of the GENERAL government not as applicable to the states
Amendments to the Constitution contain no expression indicating an intention to apply them to the state governments thus the court cannot apply them
Marshall rejected the counterargument that at least some provisions of the B of R such as the takings clause do not limit themselves only to the federal government
However the textual argument was rejected on the grounds that the limitations on power if expressed in general terms are naturally and necessarily applicable to the government created by the instrument
NOTE:
Faith in state constitutions
Understanding that the Bill of Rights was meant to apply only to the federal government.
Conclusion
The provision in the 5th Amendment to the Constitution is intended solely as a limitation on the exercise of power by the government of the US and is not applicable to the legislation of the states.
2. A False Start in Applying the Bill of Rights to the States: The Privileges or Immunities Clause and the Slaughter House Cases
14th Amendment adopted after the Civil War declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the U.S.
Justice Black: the words No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States seem an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.
Slaughter House Cases
Butchers’ Benevolent Association of New Orleans v. Crescent City Livestock Landing and Slaughter House Co.
1873
Facts
Due to a huge surplus of cattle in Texas, the Louisiana legislature gave a monopoly in the livestock landing and the slaughter house business for the city of New Orleans to the Crescent City Livestock Landing and Slaughter House company.
State law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee.
Several butchers brought suit challenging the monopoly arguing that the state law i
es Clause
Saenz v. Roe
1999
Facts
California Law limited welfare benefits for new residents in the state to the level of the state that they moved from for their year of residence.
Analysis
Right to travel is a fundamental right including the right to move into a new state and be treated as a citizen of that state.
As a fundamental right the right to travel is protected under the privileges and immunities clause. For the first time the privileges and immunities is interpreted as protecting fundamental rights of citizens.
New residents should be treated the same as longer term residents of a state.
This aspect of the right to travel is protected by the privileges or immunities clause of the 14th Amendment.
Common Ground that the privileges and immunities clause protects the right to travel and the right to be treated equally in the new state of residence.
State Argument:
Purpose of law was that of restricting welfare benefits for new residents was to avoid California being a magnet for those moving to the state only to collect higher welfare benefits. Purpose was not justified.
Stevens rejected argument
Evidence reviewed, taking into account the high cost of living in California, indicated that the number of person moving to obtain higher benefits was small and not large enough to justify a burden on those who did not such a motive.
California represented to the Court that the legislation was not enacted for any such reason.
Even if it were such a purpose would not be permissible.
Dissent
Rehnquist and Thomas
The court breathes new life into the previously dormant privileges or immunities clause of the 14th Amendment.
The clause had only been relied upon by the Supreme Court in one other decision:
Colgate v. Harvey 1935 relied on the Privileges and Immunities clause but was overruled five years later by Madden v. Kentucky
