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Political & Civil Rights
Temple University School of Law
Carter, William M. "Chip"

Professor Carter Spring 2009

a. Interpretative Limits
i. 3 ways to limit the judiciary (really focus on interpretive limits):
1. Interpretive limits
2. Constitutional Limits
3. Jurisdictional limits:
1. Specific Intent Textualism: Look within the 4 corners of the document itself and figure out what the language means
a. Uses male pronoun for President. That was intent.
2. General Intent Originalism: Still trying to get original meaning of document but looking at everything to figure out intent of writers
a. Can look at sources outside of text
b. Look to understand the general values founders were looking to protect
i. e.g. 1st Amendment applies to computer speech since founders expected to cover general spread of information and general intent of framers cover modern communication.
ii. Scalia is faint-hearted originalist: He understands that society has evolved but is only willing to stretch them so far.
c. Benefits of Originalism
i. Predictable since original sources can be seen
ii. Puts restraint on judiciary since they have to look at original meaning and use less judicial discretion (avoid political decisions)
d. Problem with Originalism: Sometimes you have absurdities in the Constitution
i. E.g. Use of “he” means only man can become President.
iii. NON-ORIGINALISM (Brennan)
1. Constitution is meant to evolve over time. “Living Constitution”
2. Const. evolves to mean what it means today. Should fit today.
3. Benefits of non-originalism3
a. Constitutions are different from statutes and not meant to be static.
b. Certain people were disenfranchised during founding and legislature is more likely to be slow to give rights
4. Problem with Non-Originalist: Problem how far they can go and still be legitimate.
b. 2nd Amendment Example: There is an individual right to bear arms under 2nd Amendment and D.C. gun ban was found unconstitutional.
i. Heller: D.C. had a gun ban on personal firearm possessions. Petitioner Heller wanted to have a license to have handgun in law.
1. 2nd Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
2. Both majority and dissent look at textualism.
a. Scalia looks at text, dictionaries, other constitutions, etc. Scalia does not do strict textualism for this case (for constitution). He does strict textualism for statutes. Here he does general intent originalism. However, he is not doing “living-constitution” that brennan is doing.
b. Scalia doesn’t think right of self-defense is something that evolved. It is what framers meant then.
3. OPERATIVE CLAUSE: Scalia starts analysis of meeting with the 2nd half of the amendment (operative clause). Majority says operative clause says that the 2nd Amendment confers an individual right to possess and carry weapons.
a. 1) Scalia says prefatory clause announces A purpose (and not THE purpose) of the right and hence don’t construe right to that purpose.
i. “Well-regulated”-Prefatory (explains purpose of operative clause). Scalia says this does not limit or expand the scope of the clause. If you accept this, then it makes perfect sense to start with operative and then see how prefatory fits in
1. Of course, there might be a reason why they included a prefatory clause here and not almost anywhere.
b. 2) “Right of the People”
i. Looks at comparatively to other provisions for this phrase “1st, 4th, 9th” amendment. In those cases the phrase “right of the people” referred to individual rights. Hence Scalia says read this as individual right.
1. Dissent: Criticism of this is that if you break it down you might not see the whole.
ii. “Right of the People” means all the people in the political community. Hence, why limit “right of the people” here to subset of militia
c. 3) “To Keep and Bear Arms”
i. Arms-Means anything for defense (not military terms)
1. Scalia looks at dictionaries at the time since he wants to know what it meant then.
2. Rejects argument that it is limited to arms at the time (makes analogy to 1st Amendment).
a. This is General Intent originalism (look at general intent of framers and what they were trying to achieve and not just specific intent).
3. “Bear arms”-Says carry for non-military purpose.
4. PREFATORY CLAUSE: Purpose of prefatory clause is to state that we would not allow the central government from disarming the citizenry and prevent them stopping tyranny. This is a PURPOSE of the clause but not the LIMIT of the right. Need to see what clarification it can offer. Need to look at political context.
a. 1) “Well-regulated militia”
i. Scalia says it means “the Militia comprised all males physically capable of acting in concert for the common defence.” (based on numerous sources).
ii. Rejects argument that it refers only to getting a militia. You have militias and armies. A number of provisions deal with both. 2nd Amendment is intended to cofidy preexisting common-law right and not create it. 2nd amendment preserves militia and not creates it.
iii. Militia was not formal army. They are “regular dudes” organized at the time they are called.
1. Scalia says that you HAVE to have a right to own guns otherwise you couldn’t serve in militia if you didn’t bring your own gun. In order to bring gun, need to have ability to own gun.
a. Hence since militia not a professional army, it is not a right limited to professional armies.
i. Dissent says you can have a right given to militia men to have guns.
ii. Dissent says it is the STATE that wants to preserve the right to not be stripped.
b. 2) “Security of a Free State”
i. Scalia says this doesn’t mean state as in colony/state. Its to protect polity
1. He says they used “state” was term of art and did not connote “state” as in PA. The meaning of the phrases
a. Other amendments refer to “the states”
5. Miller Case: 1939. Two guys running around with sawed off shotgun. Court held that 2nd Amendment didn’t hold that there is right to have sawed of shotgun. Majority disagrees that Miller held that there is a right to a collective right. Scalia says that Miller says that 2nd Amendment protects only certain weapons and sawed off shotgun is not a weapon used by the militia setting.
6. Dissent says that best reading of Miller is that those guys don’t have a right because they weren’t part of a militia.”
7. Majority Limitations: Even with right, 2nd amendment still allows reasonable regulation on guns
a. Way to carry (concealed)
b. Licensing prohibitions (mentally ill, felon)
c. Limit locations (schools, govt.)
d. Can limit certain weapons (limit to what reasonable citizen would have).
8. Dissent: (Stevens):Dissent says that 1st clause doesn’t just announce A purpose, but THE purpose of this amendment and thinks majority is wrong.
a. Looks at text and history. Says the right protected the states from federal central government. Says it makes no sense to look at preface.
i. If purpose of the amendment is to prevent states from being disarmed, then it follows that there is no individual right to bear arms unrelated to military purpose.
b. Stevens also uses Stare Decisis and says even if he is wrong, Miller had been effect for 70 years with judges depending on it. He says FORCE and WEIGHT of stare decisis should keep it.
c. “Right of the People”-Means collective action and not individuals. Right of the people as a whole
i. Scalia: Other rights with this clause meant individual rights.
1. On the other hand: Other individual rights not as limited
d. “Keep and Bear Arms”-Military connotation.
i. Carter: Dissent has the same problem as majority for trying to read out a certain part of the amendment.
1. There is even a tradition rooted in history of gun ownership.
e. Stevens: If state legislatures want to have ability to disarm itself, why can’t they since a purpose is to keep states from being tyrannized by federal rights? Scalia would say this is ONE purpose, but the rest deals with individual rights.
c. Inherent Presidential Power
i. Power to defend nation is in executive branch and he has to have some powers to do this. On the other hand, the term “Necessary and Proper” does not have this.
ii. Youngstown: Layed out Jackson framework depending on congressional authorization. 3 categories
iii. RULE: Degree of Control matters over prison and not sovereignty.
1. Boumediene: Congress had passed statutes that some say represented express congressional approval of the detentions. Statutes denied detainees detained outside U.S. the right to do habeus corpus challenge. Case deals with procedure on whether they can file petition and not substance.
a. Eisentrager: Dealt with prisoners held in Germany. People were aliens and this was abroad. Court back then found for Govt.
i. Court distinguishes this case from Eisentrager by saying:
1. Degree of Control here was more
a. Carter: This distinction seems weak
2. People objected to being called enemy combatants and need due process
a. Real trial/court marshal makes a difference
i. Gitmo’s panal commission was of a different nature.
3. Practical distinctions here are different
a. Less practical concerns here than in WW2
i. Scalia: Court is substituting its executive judgment for that of the military and is wrong.
b. Court has traditionally viewed this as sliding scale. Protections don’t always follow flag meaning its not always applicable to everywhere U.S. is. Depends on some factors:
i. STATUS of DETAINEE: Who you are?
1. U.S. citizen receives maximum protection
2. A resident in the U.S. receives less protection
3. Terrorist receives even less
a. Here, detainees tried to distinguish from Eisentrager by saying they were not enemy combatants.
ii. NATURE OF LOCATION: Where you are?
1. Here, court finds for petitioner in that U.S. had sufficient (in fact complete) control over the prison in GITMO.
iii. Look at practical aspects
1. If they file habeus petition, someone has to respond and government needs to have full trial which takes money. Also need to put people on the stand such as sol

receive, then those people don’t have access.
a. Different than letting you talk freely in barbershop
ii. Marsh can be seen as saying that traditionally governments run towns and Δ was doing that as substitute.
1. State was also involved in discretion to suppress her speech. This included plus other things makes it seem like it makes sense to treat it as state actor.
1. Definition: Distinguished from public function because we are looking at extent of government entanglement of private action. If hand in deep, we will find this as state action. We look at AFFIRMATIVE ACTION BY THE GOVT in privat actor’s conduct in order to find Entanglement:
a. Entanglement can be found without public function.
2. TEST: Whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity that led to the suit so that the action of the latter may be fairly treated as that of the state itself.
a. Jackson v. Metropolitan Edison Co. pg 476: P is resident of PA and gets her electricity from Edison who is authorized by PA utility commission. Disputes happen and she loses her account without what she calls due process. Company claims they are private actor.Does due process clause apply to deprivation of this interest when it is carried out by private corporation?
i. Court distinguishes. Public function not met simply because business is subject to regulations (even extensive).
1. In this case, challenged action it is decision to cut of power. Hence, nexus is between state and cutting off power. This did not happen as state did not cut off the power (utility did).
ii. Majority says state would need to have a hand to shut off power.
iii. Also, state itself is not obliged to provide electrical power and hence private entity also not obligated this.
1. Ask whether state has OBLIGATION to do this. Look at history of states providing this kind of service (i.e traditions of states doing this). If there is no obligation to provide electricity, how can you say state action is involved was the reasoning.
iv. There are plenty of private jobs that do stuff that is “affected with the private interest” and they are not treated as state actions.
1. Private individuals do stuff for public interest. Some say that people like lawyers, doctors, might be argued to have a higher standard
v. Policy: Rights have costs. Extending rights to private individuals might have costs that outweigh benefits.
1. However, maybe some services should provided by govt or be subject to due process regulations.
vi. Marshall Dissent: State did give approval to company’s termination proceedings, including method of giving notice. Marshall thinks the standard is wrong and majority is wrong in how it applies its in correct standard as well. He thinks the standard is too narrow. State is interdependent w/ the company and should be recognized as a joint participant in the action.
3. RULE: State Action can be in the enforcement of K.
a. Shelley pg 487:30 of 39 owners in street entered into private covenant to restrict black person from buying property. This happened, and other owners wanted to sue and have state enforce the covenant.Covenant is a private agreement (runs with the land) and subsequent owners have to honor it. Covenants only work if there is threat of robust judicial enforcement. Even if someone wants to segregate, sometimes economic incentive comes in. That’s why owners wanted to enforce covenants. There weren’t any FHA fair housing statutes at this time. Do we have state action when discriminatory conduct undertaken by private parties?
i. Court says that enforcement of private right to exclude makes judges state action. STATE ENFORCEMENT via JUDICIAL ENFORCEMENT
1. Court doesn’t apply Shelley to confidentiality agreements or covenants not to compete which can be analogized.
ii. Court says discrimination could not exist BUT FOR affirmative state action being involved. Hence, the role of state is NOT too far removed from private conduct even if underlying substantive rule not created by state.