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Constitutional Law I
Stanford University School of Law
Schacter, Jane S.

Constitutional Law I

Professor: Jane Schacter

Fall 2011

I. Introduction


1. Federalism and separation of powers are the means to the end goal of individual rights and freedoms.

a. Framers were concerned that the enumeration of some rights in the text of the Constitution inevitably would be incomplete and thus would deny protection to those not listed.

2. Anti-Federalists didn’t think structure of the government was enough and so a compromise was reached through the agreement to add a bill of rights.

3. The Early Supreme Court held that the Bill of Rights is not applicable to the states.

a. Barron v. Baltimore (1833) – A wharf owner sued the city for ruining the use of his wharf, arguing that the City’s actions violated the Fifth Amendment’s prohibition on takings w/o just compensation.

b. Rationale: Marshall uses various arguments to find that the Bill of Rights is not applicable against the states:

i Historical argument – Bill of Rights comes from appeasement of the anti-federalists, who feared oppression by the federal government.

ii Structural argument

a The Constitution is a pact b/w the people and the US federal government, not the states.

b The Constitution creates the federal government’s power, not the state’s (which predates the Constitution).

iii Textual argument

a There are places where the Constitution explicitly limits the power of the states, and in doing so, specifies “the states shall …”

b A limiting clause in the Constitution that doesn’t explicitly refer to the states should be taken as just limiting the power of the federal government.

c. Counterarguments:

i The rights are mostly written in a passive voice and don’t specify against whom they are enforceable (so we should interpret them broadly to apply them to everyone).

ii The rights are “self-evident” and are truths not endowed by a Constitution, etc.

a As natural rights, no government can take them away from you.


1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…

2. Slaughter-House Ruling – rendering the P & I a nullity

a. The privileges and immunities clause of 14th Amendment protects from state intrusion only the rights that exist solely because of the creation of the federal gov., rights incidental to citizenship.

i Right to vote, etc.

b. The states are, therefore, free to deny all other fundamental rights (such as right to practice your professions without interference from state monopoly law). Slaughter-House Cases (1873) – Louisiana passed a law granting a monopoly for one corporation to maintain all the slaughterhouses around New Orleans causing butchers not protected by the monopoly to be unable to practice their trade.

i Rationale: Miller majority relies on recent history of 14th amendment (only 5 years old) to show that the purpose of the amendment was to stop discrimination and give blacks full rights as citizens, not to help white butchers practice their trade.

a This is an originalist argument based on the intent of the drafters.

ii Counterarguments:

a It’s unclear whether the court is getting the original intent right. The senator who pushed this through wanted to overturn Barron and protect the fundamental rights as defined in Corfield (there are natural law rights that belong to everyone given from God).

b The words “privileges and immunities” stated in Article 4 were interpreted in Corfield to include fundamental natural law rights.

c Grants of monopoly are opposed to the whole notion of free government and freedom.

d Majority’s interpretation makes the P and I clause of the 14th Amendment a nullity.

e It’s a strained reading of the language of the clause.

3. Application of Slaughter-House

a. The right to travel between states is a fundamental right of citizenship created by and inherent to the Union. Saenz v. Roe (1999) – The Supreme Court stuck down a California law that allowed the state to utilize a classification system which categorizes and pays benefits to its citizens based upon their duration of residency as violating the P or I clause of the 14th amendment.

b. Some were optimistic that Saenz would be the death of Slaughter-House, but in fact, it was merely an application of that case.

i Justice Thomas in his concurrence wanted to overturn Slaughter-House by looking at original meaning of P and I clause, despite the long standing precedent.


1. Black’s View (Total Incorporation – dissenting in Palko)

a. The due process clause protects all of the Bill of Rights and nothing further.

b. Black doesn’t like the gray area of additional rights outside the Bill of Rights because that gives judges too much power to impose their own value choices.

c. It degrades the Bill of Rights to pick and choose which ones are fundamental enough.

d. The original meaning of the 14th was to incorporate the Bill of Rights (although it was originally supposed to happen through P & I clause).

e. Argument against –waters down the important rights in Bill to say that they’re all fundamental.

2. Frankfurter’s (and Harlan’s) View (concurring in Palko)

a. Agrees with Cardozo that there are fundamental rights outside of the Bill of Rights, but they envision a much larger set of rights being protected.

b. Disagrees with Cardozo & Black in that they see the rights being protected as evolving.

3. Murphy’s View (Total Incorporation Plus)

a. Due process includes all of Bill of Rights, as well as other fundamental rights.

b. Argument in Support – the framers of the 14th intended this conclusion, and the framers of the Constitution clearly thought all of the Bill of Rights was fundamental.

c. Argument against – It fastens on the states the federal concept of criminal justice to make them follow the rights exactly, when they really should have some control over their justice systems.

4. Brennan’s View (Hodgepodge of Others)

a. Brennan borrows from each of the major theories:

i Doesn’t believe in total incorporation, but the great majority of the rights in the Bill are incorporated against the states (more of BoR included here than any non-full incorp.)

ii Agrees with Black (disagreeing with Cardozo) that those rights are incorporated in full (and not that sometimes a right is only incorporated in only its most extreme violations).

iii Due Process also includes rights not in existence at the time the Constitution was written.

5. Conservative View

a. Due process only guarantees fair proceedings, not substantive rights.

b. The due process clause doesn’t incorporate any of the Bill of Rights, because the Bill doesn’t apply against the states and nothing in the 14th amendment changes that result.

c. This view says that if you want incorporation, a constitutional amendment must be passed.

6. The Law Today – Prevailing View of Due Process (Brennan’s View)

a. The due process clause encompasses almost all of the Bill of Rights and the ones incorporated are incorporated in full.

b. The court has shifted from Cardozo’s view (in Palko) to Brennan’s view. Duncan v. LA – The 6th Amendment’s right to jury trial is fundamental and applicable to the states.

c. Today we take incorporation for granted – it is largely ignored and simply accepted.

II. Levels of Judicial Scrutiny:

A. Rational Basis Test

1. A law will be upheld if it is rationally related to a legitimate government interest.

2. This is the minimum level of scrutiny employed by the Court.

3. The state’s goal need not be the actual purpose – any conceivable legitimate purpose is sufficient.

4. The means chosen need only be a reasonable way to accomplish the objective.

5. The challenger of the law has the burden of showing that the law does not serve any conceivable legitimate purpose or that it is not a reasonable way to attain the end.

6. The rational basis test is enormously deferential to the government and only rarely has the Supreme Court invalidated laws as failing rational basis review – Romer v. Evans, City of Cleburne v. Cleburne Living Center

B. Intermediate Scrutiny

1. A law will be upheld if it is substantially related to an important government interest.

2. The government’s objective must be more than just a legitimate goal for government to pursue

a. The court must regard the purpose as important.

3. Intermediate scrutiny is used in evaluating laws involving gender discrimination, discrimination against nonmarital children, discrimination against undocumented alien children with regard to education, and regulation of commercial speech and of speech in public forums.

4. The government has the burden of proof under intermediate scrutiny.

5. An unresolved question concerning intermediate scrutiny is whether less restrictive alternative analysis ever should be used for intermediate scrutiny.

a. The cases are conflicting, although it is clear that, at the very least, the means must be narrowly tailored to achieve the goal when intermediate scrutiny is applied.

C. Strict Scrutiny

1. A law will be upheld if it is narrowly tailored and necessary to achieve a compelling government interest.

a. The law must be shown to be necessary as a means to accomplishing the end.

b. Requires proof that the law is the least restrictive or least discriminatory alternative.

i If law is not least restrictive alternative, then it’s not necessary to accomplish that end.

2. Under strict scrutiny, the government has the burden of proof, so the law will be struck down unless the government can show that the law is necessary to accomplish a compelling government purpose.

3. Strict scrutiny is used when the court evaluates discrimination based on race or natural origin, generally for aliens (although there are exceptions), and for interference with fundamental rights such as the right to vote, the right to privacy, and interference with freedom of speech.

D. Criticisms of the Levels of Scrutiny

1. Critics argue both that the levels of scrutiny are not descriptively accurate because there are more than just three levels of review and that they are not normatively desirable.

a. On a descriptive level, the criticism is that there actually is a spectrum of standards of review and not just the three levels of scrutiny.

i The argument is that in some cases where the court claims to use rational basis review, it’s actually employing a test with more bite and not the very deferential rational basis test.

ii Likewise, the claim is that in some cases intermediate scrutiny is applied in a very deferential manner, and in some cases it is applied in a much more rigorous way.

iii Also, there are instances where the court has formulated alternative tests, such as the undue burden test for evaluating government restrictions on abortion.

iv The overall claim is that although the court articulates three rigid tiers of review, the reality is a range of standards.

b. On a normative level, the criticism is that the levels of scrutiny are undesirable and that they should be replaced by a sliding scale approach.

i The argument is that the court should consider factors such as the constitutional and social importance of the interests adversely affected and the invidiousness of the basis on which the classification was drawn.

ii The claim is that under the rigid tiers of review the choice of the level of scrutiny is usually decisive and unduly limits the scope of analysis.

iii Those who advocate a sliding scale believe that it would lead to more candid discussions of the competing interests and overall better decision making.

III. Substantive Due Process

A. “…nor shall any State deprive any person of life, liberty, or property, without due process of law…”

B. Background

1. While it may seem nonsensical to have substantive process, this is required because the Slaughter-House Cases took away the option to incorporate through the P & I.

2. However, even before Slaughter-House, the law had recognized substantive due process.

a. Wynehamer vs. People (1856) – a statute shouldn’t be considered due process of law if it strips people of their fundamental rights.

b. Dred Scott (1857) – no amount of legislative/ judicial process can take away substantive rights.

C. Lochner v. New York (1905)

1. The court applied strict scrutiny (though claiming to apply rational basis) to strike down a law creating maximum work hours for bakers as violative of the workers freedom to contract.

2. The job of the judiciary is to protect rights from the tyranny of the majority.

a. The Court won’t defer to the legislature (rational basis review) but will see it as the job of the courts to step in (strict scrutiny).

b. State offers three justifications for the law: that it’s a valid labor law, public safety law, and health regulation.

i The court does not find any of these compelling.

3. This ushered in the Lochner Era where the Court would strike down laws it viewed as unnecessary

a. But see Mueller v. Oregon (upholding law creating maximum work hours for “weak” women)

b. This opinion deflates the progressive labor and product food and safety movements.

4. Harlan’s Dissent

a. Would have applied rational basis review and thinks the court is engaging in judicial activism.


Shouldn’t read the 9th amendment in a way that makes it a nullity.

ii Arguments against doing so

a Don’t want the judges engaging in judicial activism.

b The political process will protect these rights by preventing extreme laws from passing.

e. How should the Court determine which nonenumerated rights are fundamental:

i Justice Douglas, says to the extent that there are unremunerated rights, what the court looks for is the penumbras articulated in the core of the bill of rights, and look for rights that emanate naturally out of the bill of rights.

ii Justice Goldberg proposes to protect from judicial activism by using history to limit the fundamental rights that are rooted in the traditions of our people.

iii Justice Harlan says due process is the balance society strikes between the needs of individual liberty and those of society and this changes over time.

a Doesn’t account for the possibility of change, and our rights will be forever frozen in 1791 against the federal government and 1868 against the states.

b The listed ones will always be fundamental unless amended, but others can grow and change over time.

1. But then doesn’t the mere existence of a law show what our value have changed to and that therefore there is not a fundamental consensus in our society to protect the use of contraception?

f. Holding of Griswold:

i The majority opinion is narrowly written and what is bothering the justices is the right to privacy in the marital bedroom.

a All the justices note that this right wouldn’t apply to unmarried couples.

b Note – law restricting the ability to purchase wouldn’t necessarily fall under this opinion.

3. Eisenstadt v. Baird

a. In Eisenstadt, the court recognized a right to purchase and use contraceptives based on a right of individuals to make decisions concerning procreation.

b. Brennan says that the right of privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

c. The court extended Griswold recognizing a right to control reproduction as a fundamental right.

d. Eisenstadt also is significant in recognizing a right for unmarried, as well as married, people and in protecting distribute contraceptives as well as to use them.

4. Roe v. Wade

a. Attack on the Texas abortion laws-typical of those adopted by most states-making it a crime to procure an abortion except by medical advice for the purpose of saving the life of the mother.

b. There is a substantive due process right to privacy and personal autonomy that includes a woman’s right to have an abortion.

c. Rules coming from Roe

i In 1st trimester – state can’t regulate abortion at all, not even to make it safer/more sanitary.

ii Around 5-6 months – state can regulate, but only to protect the health/safety of the mother.

iii After point of viability – state can regulate to protect interests of unborn child.

a This includes prohibiting all abortions, as long as there is an exception where the health/life of the mother is in serious jeopardy (and therefore mother’s right to protect her own life will outweigh the state’s interest in the fetus.)

d. Rationale (court answers two primary questions):

i Does this law infringe upon a fundamental right?

a Court says yes, this fundamental right is found in substantive due process of 14th Amend.

1. Note how court is not using “penumbras” rationale of Griswold majority.

b You have a privacy right to matters related to family, marriage, procreation, and kids.

1. Where does this right come from?

a. Griswold only talked about sexual intimacy in the bedroom.

b. Court focuses on other precedents which extended Griswold, such as Eisenstadt, which began to talk about the privacy right much more broadly (not just marital intimacy).

c. Black’s opinion is cursory in acting like it’s very clear that this right exists.

2. Dissent – this is Lochner all over again.

ii If so, does this law survive strict scrutiny?

a Texas’s justifications for the law

1. State’s interest in protecting potential life

2. Health of the pregnant woman

b Narrowly tailored

1. This law is narrowly tailored because there is no other way to protect these interests.

c Compelling Interest

1. State’s interest in Protecting Potential Life

a. Court says that the state’s interests aren’t compelling right away, but become compelling at the point of viability, where the state has a compelling interest to protect the right of the fetus.

b. Court doesn’t want the states to be able to pass laws substituting their moral notions about when life begins, etc.

c. Problems with Viability Line

i. If court believes that state has a right in protecting the potential life of the fetus, then distinctions based on point of viability are illogical.

ii. If state’s interest in protecting potential life is compelling (which court thinks it is at least somewhat) then it should be compelling in the beginning as well.

iii. Pro-choice supporters worry about the viability line as technology improves to allow a baby to live outside of the womb earlier, diminishing right to abortion.

iv. Note – it would make more sense to be protecting actual life (see below).