CONSTITUTIONAL LAW II
Martin Schwartz
Spring 2011
There are relatively few individual rights in the original Constitution (before it was amended).
The individual constitutionally protected rights are found mainly in the amendments
Individual Rights
Two Rights:
1. Privileges and Immunities Clause of Article IV of the constitution
a. Gives individuals a right not to be discriminated because they are out-of-state.
2. Habeas Corpus
a. Right of a person whose physical liberty has been taken away by government to bring a federal court habeas corpus proceeding to test the validity of the government’s deprivation of physical liberty à procedural type right.
i. Individual petitioner brings proceeding
ii. Right comes from Suspension Clause in the original Constitution à ARTICLE I Section 9
1. “The writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion to the public safety may require it.”
a. Ex: State prisoner wants to bring a habeas corpus preceding – must first exhaust state court remedies à regulating NOT restricting —
Federal court won’t get a writ of habeas corpus unless it’s found that the state court violated not just constitutional law but that the constitutional law clearly established by the USSC.
iii. Contracts Clause – ARTICLE I, SECTION 10
1. Applies only to State Government.
2. There is NO contracts clause in the Federal Constitution that applies to the federal government.
3. Article I, Section 9 and 10
a. Ex Post Facto Laws – There are provisions that prohibit the government from enacting an ex post facto law.
i. Legislature (Federal and State) may not take conduct that was lawful when the conduct was engaged in, and retroactively make that conduct criminal.
1. Cannot be punished retroactively and cannot change a defense to a crime retroactively.
2. Notice Concept – individuals should be under notice of what’s criminal and what’s not
ii. A right of individuals that applies ONLY to legislative action involving criminal/penal sanctions.
1. Does not apply to judicial/court action
2. Does not apply to civil proceedings
b. Exception
i. SC says if the legislative change is only a procedural point, it DOES NOT violate the ex post facto laws.
1. Procedural – rules that prescribe the steps to have a right or duty to judicially enforced laws
2. Retroactive change in the procedural rules is not a violation because there is no reasonable expectation that the procedural rules will stay the same.
ii. A violation of Ex Post Facto Law is found when there is a change in substantive rules, NOT procedural rules.
1. Substantive – rules that define the rights and duties of the parties
2. When the legislature:
a. Takes conduct that was innocent when engaged in and retroactively making it criminal;
b. Eliminates a defense to a criminal prosecution retroactively; or
c. Increases the punishment or penalty retroactively.
Megan’s law (Smith v. Doe)
i. Requirement that sex offenders register in the public records retroactively is NOT an ex post fact violation because registration is not the same as penal sanction.
ii. Test to determine whether provision is a criminal/penal punishment:
1. Did legislature intend to inflict punishment on the defendant (legislative intent)?
a. Would argue that it’s not punitive, but a remedial measure to protect the people.
b. If, yes, then it is a violation
c. If no, then go on to question #2 to see if there’s punitive effects.
2. Even if the legislature DID NOT intend to punish, does the legislation have a punitive effect?
a. Look to see if the action taken by the legislature has a connection to a non-punitive purpose (rational connection to a legislative action)
b. If excessive (far beyond what’s rationally connected), it may be found that the effect of what the legislature did was punitive.
If you CANNOT bring an action under the Ex Post Fact Clause (because the action was judicial), you can bring the action under the Due Process Clause!
i. Judicial actions WILL ONLY prevail under the DPC if it’s BOTH:
1. Unexpected AND
2. Indefensible (high standard)
ii. In other words, a new judicial decision with retroactive application does not violate due process if it was not unexpected or indefensible.
iii. Civil legislation cannot be challenged as an Ex Post law but may be challenged as a
1. Violation of due process or
2. Under the Contract Clause of Article Section 10, if they impair the obligations of contracts.
Bill of Attainder
Legislation that inflicts punishment against either:
A particular person, OR
An easily identifiable class of individuals
With no notice or opportunity to be heard
Ex. Chemerinsky will sentenced to death
Test to determine whether something is punishment
Is legislature inflicting punishment in the historical sense?
i. Death, imprisonment, banishment, the punitive confiscation of property
Whether the government action serves a governmental non-punitive purpose?
i. Look at the legislative record, what the legislative intended
Ex. Case involving Nixon – Congress enacted a statute requiring Nixon to turn over presidential papers and in turn the government would give compensation. Nixon’s attorneys argue that the federal statute was an unconstitutional bill of attainder.
i. The statute applies to a particular person – Nixon.
ii. Did the statute inflict punishment on the president? SC said no – there was no punishment to consider. Compensation is not a type of punishment.
1. In the historical sense, it is not a punishment, because Nixon would have been reimbursed for his loss.
2. Whether the action served a governmental non-punitive purpose. Look at legislative record – The government didn’t intend to punish Nixon because they were the ones who authorized the compensation.
– Usually accompanied by a legislative determination of guilt (but not necessarily)
o Legislature makes the rule – then the judicial branch applies it (If legislature determines sanctions after the judicial process – probably not a BOA b/c guilt was not determined by the legislature
– Policy Reason (behind prohibition against BOA) – the individual does not have the right to be heard and contest the charge against him – legislature is inflicting punishment which is the job of the judiciary
– Applies to federal, state and local government
– Punishment = not limited to penal sanctions à may be civil sanctions as well (not just criminal)
o Example – keeping someone out of a profession
BILL OF RIGHTS & INCORPORATION
Incorporation
MUST look at what “era” the case was decided in:
Decided BEFORE enactment of the 14th / Civil War à BOR ONLY applies to federal
Barron v. Mayor & City Council of Baltimore
1. Takings Clause of the 5th Amendment only applies to the federal government; not state or local
a. 3 Reasons of the USSCT:
i. Historical – Historically, the reason the BOR was added to the Constitution was to limit the power of the newly created federal government (not the state).
ii. Structure of the Constitution – Some parts of the Constitution specifically prohibit conduct by the states, and when the framers intend to limit the states, they say it, and here they didn’t.
iii. Framers intent – Wanted the prime source of rights that can be asserted against the states to be found in the state Constitution.
Decided AFTER 14th/Civil War (when 13, 14, 15 were added) à BOR is applied to state and local government through its incorporation of the DPC of the 14th Amendment.
Slaughter Cases
1. The Privileges and Immunities Clause of the 14th Amendment does not incorporate any of the BOR’s against the state and local government, but this still leaves room for the DPC of the 24th Amendment.
2. PIC is given a very narrow interpretation.
3 Possibilities USSC had when presented with the issue of Incorporation
1. No Incorporation – DPC doesn’t say anything about incorporation
2. Full Incorporation – Framers intended that all provisions of the BOR be incorporated
3. Selective Incorporation – Only some of the provisions of the BOR are deemed fundamental and should apply to state and local government – done on a case by case basis.
a. This position prevailed
Tests to determine whether a right is incorporated
1. Whether a particular right is of the very essence of the scheme ordered.
a. Criticized as being too subject
2. Is this right a principle of justice so rooted in the traditions and conscience of the people that it has to be ranked fundamental?
3. Third test??? Today’s test???
o DUNCAN TEST [Today’s test – more objective][Used to find incorporation in Benton also]
§ 1) Historical roots of the right
· Duncan (right to jury trial) – old English roots
· Benton (double jeopardy) – comes historically from Greek/Roman Law (this is good argument for inc)
§ 2) Practices of the states – does state regard as important or trivial?
· Duncan – Louisiana was only state not applying jury trials
· Benton – all states have double jeopardy protection
§ 3) Practical importance of the right (pragmatic approach)
· Duncan – important b/c jury is buffer that protects against bad prosecutor/judge
· Benton – important b/c protects criminal D charged w/ an act
As a result, almost all of the BOR has been adopted in the DPC of the 14th Amendment.
Criminal defendants in state criminal trials have virtually the same rights as in a federal trial.
2 Rights are UNINCORPORATED into the 14th Amendment (doesn’t apply to state and local government)
1. 5th Amendment – Right to grand jury indictment in capital or other infamous crimes
a. States are not under a federal grand jury system, so it doesn’t apply to the states, and the state can charge the criminal however they want.
2. 7th Amendment – Right to jury trial in civil cases
a. Only applies to civil cases in federal court
2 Rights that HAVE NOT been decided by the USSC on the issue of incorporation into the 14th Amendment
1. 3rd Amendment – prohibits quartering of soldiers to private homes
2. 8th Amendment – Prohibits excessive fines and bail
District of Columbia v. Heller
1. 2nd Amendment Right to Bear Arms extends to personal gun use outside of the military.
2. 5-4 split – Conservative judges in the majority say that after analyzing the text and historical background of the 2nd Amendment, it grants the individual right to bear arms.
a. It exists apart from any militia or military service.
3. Leaves open two major questions
a. What is the standard of judicial review?
i. What is the standard the court uses to test the constitutionality of the right it is imposing?
b. ?????
McDonald v. City of Chicago
1. Conservative majority says 2nd Amendments part of the DPC and applies to the states.
2. 2nd Amendment right is an individual right as established in Heller.
STATE ACTION
BOR does not protect private individuals, corporations, and entities; does not apply no matter how discriminatory the action may me! Therefore, it is not subject to the limitations of the DPC of the 5th and 14th Amendments.
Only applies to government action. A purely private entity = one with no connection to the government
State Action Doctrine
1. Provides that, in litigation where an
party acts jointly with the government. Requires a finding that the private party and the state have the common goal to deprive the plaintiff of the plaintiff’s constitutional protected right.
i. i.e. NCAA v. Tarkanian
1. Coach was illegally recruiting players. NCAA pressured UNLV to take action against their coach. The coach is suspended for two years. NCAA is a private entity which regulates intercollegiate athletics. UNLV was a State University. Coach argued that there was joint action between the NCAA and the University to suspend him.
2. 5-4 Vote – Court held that there was no state action because the university and the NCAA did not share the same goals.
a. Goal of the NCAA – fire b-ball coach
b. Goal of University – Retain the b–ball coach
5. Pervasive Entwinement
a. State action will be found when there is an almost overlapping identity between the government and the private entity. Membership of private entity is overwhelmingly state actors.
i. Brentwood Academy v. Tennessee Secondary School Athletic Association
1. Whether high school association was engaged in state action?
2. Court held that there was State Action because all of the members of the association were from every public school in the state. All of the members of the board were public school members and the funding was by the public schools.
3. Could said that the public schools were pervasively entwined with the private association. This was a government function that would normally carry out if it wasn’t in existence.
6. IMPORTANT NOTE – Not all state action precedents fit neatly into these 5 categories. The decisions are ad hoc decisions.
a. Two Constitutionally Protected Rights That Don’t Require/Protect State Action (may be asserted against a private party)
i. 13th Amendment Right of Involuntary Servitude
ii. Interstate travel
b. The mere fact that the state authorizes the private sector to act in a particular way does not convert the private entity’s actions into state action. What the private entity does cannot be tested under the 14th Amendment (Jackson v. Metropolitan Edison).
c. A finding of no state action means that the case would be dismissed. A finding of state action does not mean that the conduct is unconstitutional, it just means emphasis is placed on individual rights–there are expectations that the limitations in the federal Constitution have been complied with or respected.
Procedural Due Process
Introduction
1. The DPC, by its language, naturally tells the government that you cannot deprive individuals of life, liberty, or process unless it provides due process.
1. Process = procedures that are due under the DPC (adequate notice and opportunity to be heard)
2. The DPC requires that when the government deprives a person of life, liberty or property, it must give the person DP – fair procedures = some type of notice and an opportunity to be heard (Must define “liberty” and “property” so we know when we’re being deprived)
Incorporation – When talking about due process, must be specific. Are we talking about incorporated due process, procedural due process, substantive due process?
When talking about incorporated due process must say: “I allege this search violated my 14th Amendment rights as incorporated against the state/local government.”
If talking about substantive due process, are we talking about express substantive due process or implied substantive due process?
Deprivation of Property
1. Whether state law has a property interest, we look to state law.
2. Property under the DPC is not limited to traditional forms of property.
a. In current times, the government dispenses important commodities that should be considered property protected by the DPC. Goldberg
i. i.e. medical benefits, public employment
b. Ownership of property is considered a right because it is a right under state law.
3. Certain aspects of property are common throughout our nation.
a. Ownership of real property à form of property protected by DPC
b. Possessory interest in property is also a form of property under the DPC
i. i.e. leasehold interest in real or personal property (rent apartment or car)
c. Lien on property
4. Court in Goldberg, said that dispensed commodities should be in the DPC when they are entitlements (aka statutory entitlements)
a. When is there a statutory entitlement?
i. There’s a statutory entitlement when there is a reasonable expectation of receiving the government dispensed commodity.
1. What is a reasonable expectation?
