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

Constitutional II Law Outline

Prof. Schacter

Spring 2012

I. Introduction

a. From Con law I to Con Law II

i. Con law Iàabout structure of govt: federalism and sep of powers as a means of protecting rights

ii. Con law IIàIndividual liberties and rights: skepticism that structure of govt is enough. Compromise with anti-federalists.

iii. How do we interpret the vague BoR?

1. Originalismàwhat did Const mean when it was enacted

2. Non-originalismàBoR was written vaguely intentionally in order to protect fundamental values. The meaning evolves with today so you may have different results interpreting an old question today.

iv. Barron v. Baltimore (1833)—Shows ways of interpreting Const. Takings case against City of Balt for shanging water rights and rendering property worthless. Takings clause (5th Am) does not apply to state/local govts:

1. HistoricalàBoR created to limit federal powers

2. Structuralàpact b/t US fed govt and people, state and local govts were not privy. State powers pre-date BoR.

3. Textualism—Const limits States’ power explicitly in places (e.g. art. 1 § 1), so won’t read vague language to prohibit state power.

4. Holding: BoR only limits Federal Power

5. SIG:

a. In Marshall’s only case (on BoR), he takes power away from federal Cts—they can enforce the Const against the States, but not the BoR. Marshall frees states of duty to protect the BoR rights.

b. At this time the fed govt was small, most law was state or local, robbed BoR of much of its effect. Allowed states to prohibit advocating in favor of emancipation, to allow slavery, etc.

6. Opposing Arguments:

a. Textualismà1st Am says Cong shall make no law, so that clearly applies only to fed govt, why limit the application of this provision in light of vague language. (This is a wash, textualism could go either way)

b. Natural Lawàthese are inalienable rights, and no govt (fed or State) can take it away from citizens. But Marshall fears natural law, and it’s not as popular at time of this case, 50 yes after Const passed.

v. History lesson

1. 1863—Emancipation Proclamation

a. frees slaves to fight for Union

2. Post-Civil War

a. To reintegrate South, without slavery, Pres. Andrew Jackson appointed friendly Southern governors. They made the desired laws in the South and called Conventions (with loyal Union voters) to ratify the 13th Am

3. Radical Republicans Reconstruction

a. Civil Rights Bill of 1876—full citizenship and rights. Passed over Johnson’s veto—either he thought it was beyond federal power or he was racist—led to his impeachment.

b. Constitutionalize the civil Rights Act in the 14th Am. But must be passed by Congress and ratified by 3/4 of states (which means at least 1/2 of Southern States. Southern States (except TN) didn’t ratify. Then passed Black Codes to effectively re-impose bondage on freed slaves.

c. Cong passes Reconstruction Act of 1857—dissolves the new governments in South, places them under military rule. They can only escape this by rejoining the Union, and they can only rejoin by ratifying the new Amendments. The new governments were mostly composed of carpetbaggers and freed slaves

b. Privileges and Immunities

i. 14th Am, § 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

ii. Art IV, § 2: “The Citizens of each state shall be entitled to all the P&I of citizens in the several states.”

iii. 14th Am, § 1: “Nor shall any State deprive any person of life, liberty, or property w/o due process of law.”

iv. Slaughter House Cases (1873)

1. La. Law excluding white butchers from slaughterhouse monopoly set up by city government was Constitutional. Butchers challenged law under the P&I clause of the 14th Am.

2. Majority (Miller): textual difference between Art. IV (“Citizens in the several States”) and 14th (“citizens of the United States”) to argue that Art. IV protects P&I of citizens of several states, i.e., fundamental rights of all people, but that 14th only protects that narrow group of rights people have by virtue of being citizens of the U.S. – not rights by virtue of state citizenship, and not fundamental, natural-law rights (e.g., property, right to travel freely, protection abroad, petition government for grievances, habeas – but right to work as butcher is not one of them).

3. federalism—drafters of 14th Am didn’t want to alter form of federal gov’t, but federal supervision of all P&I would change everything. Would rather read this Cl to mean nothing than to create a federal CoA every time a State discriminates or abridges your rights

4. Originalism—this was meant to be about race discrimination against former slaves, not white butchers.

5. Dissent (Field): says pursuing a lawful profession is a natural right. Pressing the natural law argument that lost in Barron. Also, defines P&I the same way as in Art. IV § 2, and use it’s interpretation, since Convention of 14th Am was silent.

6. Corfield v. Coryell (1823)

a. In this prior case, Justice Washington decided what P&I means—it’s an anti-discrimination provision so you can’t discrim against citizens of other states. He adds something more—P&Is are fundamental and belong to all citizens in free govts. So before a state couldn’t discriminate against other citizens, now it can’t discriminate among citizens. (This is what Field wants in his dissent in Slaughter House Cases)

7. Dissent (Bradley): challenges Miller’s originalist argumentàthis was about protecting natural rights from state-intrusion. They did want to change the meaning of the Const drastically!

8. Application of Slaughter House Cases

a. resulted in suffering—whole history of passing 13-15th Ams and Civ War was for nothing.

b. Ended 14th AM P&I litigation

v. Saenz v. Roe (1999)

1. (Stevens): Right to travel had always been recognized under Const, finally S. Ct says its source is the P&I clause of the 14th Am.

2. Doesn’t breathe life into P&I or undermine Slaughter House cases, just say that right to travel is one of those few federally created rights. Slaughter House still rules.

3. Thomas, dissent: Thomas thinks they should overrule Slaughter House, but doesn’t say how broad P&I rights should be, and is the only vote now that Rehn is dead.

c. Incorporation

i. Palko v. CT

1. (Cardozo)—14th Am DP clause protects those rights necessary for ordered liberty.

2. In this case, right of double jeopardy is not among those rights (though in dicta say that retrying the same case over and over might violate—only protect against extreme abuses).

3. SIG: BoR is not incorporated against States.

ii. What are the ordered liberty rights?

1. Cardozoàstates have positive law duties from the DP Cl, but ≠ the BoR; man include more or less. There is a fixed set of rights, based on our traditions.

2. BlackàDP and BoR are coextensive

3. Frankfurter & HarlanàDP Cl is not coextensive with BoR, but they see a much broader role for the DP cl. And they feel less bound by history than Cardozo and Black because rights can be growing and evolving

4. Murphyàall the BoR are incorporated, but there are others also under DP, and they can grow over time

5. Brennanàonly a small sliver of BoR aren’t fundamental, but other rights are included in DP. Also, if something is incorporated, it is fully incorporated—there is no sliding scale of egregiousness incorporated rights

6. Another possible view (that academics but no justices have held)àDP only includes procedural rights, so fed govt must respect fundamental rights, and states only respect your procedural rights

7. Thomasàwants to overrule the Slaughterhouse cases and stop incorporation of DP, go back to P&I Cl. BUT, we have a body of law of DP jurisprudence, and judges don’t want to start from scratch, when they’d even e unconstrained by precedent

iii. Benefits and drawbacks of these positions

1. Burphy/Brennanàgives a lot of discretion to judges to create rights that don’t exist outside of their own subjective view; activist

2. Blackàhe thought that saying some rights in BoR aren’t fundamental would degrade the BoR, but this is not true (e.g. why do we need 12 jurors)

iv. History

1. The point of the 14th Am was to apply the BoR against the states through the P&I clause—but we can do the same thing through the DP clause.

2. BUT, at the time, most states didn’t follow all BoR procedures—did they really mean to invalidate their own procedures when they ratified the 14th Am, without even mentioning this? Frankfurter thinks no, Black says yes.

v. Federalism—whose model poses biggest threat?

1. Murphy creates many things states can’t do; Black incorporates BoR totally so puts States in a Const straight jacket according to Frankfurter.

vi. Present View

1. Brennan’s View won out

2. Ct moved from Cardozo to Brennan in Duncan v. LA (1968)

iv. SIG: Under Caroline Products, Meyer and Pierce are still good law b/c they were discriminatory against Germans and Catholice

d. Contraception

i. Griswold

1. Ct invalidates a law prohibiting the use or sale of contraception in favor of a right to privacy.

2. The purpose is no sex outside of marriage (fornication and adultery)—reasoning that w/o condoms you won’t do that. But the law applies even to married couples. Challenge is as this law is applied to married couples.

3. Ct uses strict scrutiny: Does the State have a compelling interest, AND is the law narrowly tailored to meet that interest.

4. Privacy as a fundamental right

a. FN4 of Caroline Products—SS if interferes with polit process, discriminates against minorities, or interferes with incorporated rights—here, privacy is a fundamental right.

5. Douglas (for majority) says it comes from BoR:

a. 3d Am—no soldiers quartered in your house—essence of privacy

b. 4th Am—no S&S

c. 5th Am—right not to talk~privacy

6. These rights have penumbras that emanate from their core to reach other things. The right to be let alone may be a new annunciation, but it emanates from the BoR.

7. Note: this doesn’t violate any individual amendment, but the BoR as a whole.

8. Cf: Myers and Pierce stand for rights that are penumbral to 1st Am

9. Goldberg, Concurrence: privacy is an SDP right protected by DP clause and the 9th Am.

a. The enumeration in this Const of certain rights shall not be construed to deny or disparage others retained by the people.

b. Also relies on Palko for SDP—refers to history as bolstering right to privacy—history limits judges

c. SIG: doesn’t want penumbras, just acknowledge that there are other unenumerated rights—9th Am isn’t source of the other rights, but it’s informs the interpretation of the DP cl

10. Harlan II, Concuràalso prefers the DP clause and SDP

a. Due process is based on a living tradition. Natural rights come from God or Nature, so maybe there are rights we haven’t recognized yet.

11. Black, dissent:

a. There is no right to privacy in the const, so doesn’t exist. This is Lochner all over again

12. Stuart, dissent:

a. this is an uncommonly silly law, but privacy isn’t in the Const, so it’s not protected

13. Prob with Stuart and Black:

a. can’t answer the 9th Am. Madison didn’t want to do a BoR b/c didn’t want them to be seen as exhaustive.

14. Prob w/ SDP and counter-majoritarianism (or judicial activism):

a. SDP gives judges a lot of discretion, maybe creates government by men, rather than by law.

b. Anything could be penumbral to the BoR. Douglas hates SDP b/c of Lochner, but is a liberal, and that’s why he wants penumbras, but maybe we can use his approach as a signpost as to what other fundamental rights are.

15. Prob with Goldberg’s history limitation:

a. Doesn’t explain why Lochner was wrong. Framers respected econ rights more than privacy, and Enlightenment was all about property rights.

b. Limits fundamental rights to those that existed back in 18th century.

c. Also, history can lead to contradictory results, and who knows whether Framers wanted us to rely so heavily upon it.

16. Prob with Harlan’s living tradition:

a. the fact that this law is on the books suggests that the right to privacy is not a core value of the Am ppl.

17. Later extensions of Griswold—unconst for State to ban the sale of contraception; extend right to unmarried couples in Eisenstadt v. Baird (1972)

a. SIG: use Common Law methodology to determine fundamental rights.