Constitutional Law II Outline

CON LAW II OUTLINE

I. BILL OF RIGHTS AND INCORPORATION

Textual Provisions Protecting Rights

Original Const’n = refers to Const’n prior to amendments where there are few individual rights
Rationale: some though no need. Others feared that if enumerated that Const’n might be interpreted to deny other individual rights.
[Note: Already studied one individual right -Privilege & Immunities Act of Art. 4 –right to be free of discrimination against out-of-staters]

A. Habeas Corpus Proceeding [WHC] –Art. 1 §9 says “the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion of Invasion, that public Safety may require it.” 1. Right to bring habeas corpus proceedings purpose = Test the legality of gov’t custody over the individual (public safety exception)
2. Generally prohibits Congress from suspending/taking away, BUT not regulating. Congress has extensive authority to regulate.
3. Although Const’n prevents the gov’t from suspending the WHC the availability and scope is a matter of federal statute. 28 USC §§2254 & 2255 determines the power of the federal courts to issue WHB.
4. SC likely to give Congress great latitude in regulating the WHC because historically WHC was quite limited.
-Until 1867 only federal prisoners could seek the WHC from the federal courts and until 1915, the WHC could only be used to challenge the state court’s jurisdiction.
Ex. telling the prisoners that they can only bring a WHC when all of the state remedies are exhausted.
2001 -St. Cyr v. I.N.S.- the SC held that the aliens could challenge their deportation by using the WHC even though Congress expressly precluded judicial review of deportation orders
B. Ex Post Facto Laws -Article 1 §10 applies to the states- “no state shall pass any Bills of Attainder, ex post facto laws, or laws impairing the obligations of contracts, and Article 1 §9 applies to the feds- “No Bill of Attainder or ex post facto laws shall be passed”
1. Definition: the legislature can’t take conduct that was lawful when entered into and retroactively deem the conduct unlawful
2. Thus, it is an ex post facto law if:
(1) the legislature adopts a criminal law and attempts to punish the person retroactively
AND/OR,
ex. a statute will be enacted and they try to apply it to past offenders, BUT it will only be constitutional if it is made applicable to future offenders.
(2) a gov’t retroactive penal decision which increases the offense
note: If u had an assertable defense at time of incident and not its eliminated, this violates the ex post facto clause
3. NOT EVERYTHING violates ex post facto clause -If it is the procedure and not the retroactive punishment then its ok under the idea of a “Constitutional Dichotomy” meaning there are reasonable expectations, and people expect that the law will change
ex. NY: Legislature eliminated the corroboration requirement applicable to cases tried after the enactment and before the enactment.
Defense would argue –it’s ex post facto, making it easier to secure a conviction Prosecutor would argue –it’s a procedural change
*4 yrs ago, NY Judges split 4 to 3 in favor of not violating ex post fact. Now, SC split 5 to 4 majority said that it was a legislative change that makes it easier to secure a conviction, requires less evidence SC held it was ex post facto.
4. Prohibition against Ex post facto law only applies to Legislative action!
-meaning that retroactive change by state ct cannot be challenged by ex post facto law
-this doesn’t mean that there is no protection, just that it doesn’t come from this part of the law
a. Rogers v. Tennessee
Facts: TE had ruled that D can only be charged w/homicide if victim dies w/i 1 year and 1 day. TE SC eliminated rule retroactively. D argued.
Rationale: SC stated there is protection not from ex post facto clause, it comes from Due Process Clause of 14th A. Thus, this is OK because it is judicial not legislative.
Holding: Due Process Clause provides protection against judicial retroactive change when change is unexpected and indefensible.
5. Ex Post Facto law is limited to Criminal Sanctions.
a. Thus, retroactive civil consequences can not be challenged as ex post facto law, can be challenged under due process clause, K clause, etc. Imp. b/c Courts have consistently do no apply clause to deportation proceedings b/c characterizes these proceedings as civil. b. ex. Meghan’s law statutes: convicted sex offender is req’d to register w/state, give specific personal info, and is made available on internet. Alaska enacted Meghan’s’ Law and applied it retroactively to past offenders. Issue: Is this an increase in penalty?
TEST To determine whether it is a penalty or not ask:
1. Did the legislature intend to increase punishment?
No, legislature here intended to protect the community which was a remedial purpose
2. Even if the legislature didn’t intend to increase punishment, is the legislative action considered to have punitive effects
-will only find punitive effect if D shows the clearest of proof that its effect is punitive
-Ct states look at what legislature did:
1. Is it a historical form of punishment?
2. Did the statute have a rational connection between legislative action and some non-punitive purpose OR was it excessive to this purpose?
Here, the SC said that it did not intend to punish and its effects were non-punitive, therefore the retroactive legislation did not offend the ex post facto laws
[Note: Schwartz says this is a sterile formal approach.]

C. Bill of Attainder = Legislative infliction of punishment against either a particular individual or an easily definable group of individuals that is usually accompanied by a determination of guilt.
Ex.“Erwin Chemerinsky shall be put to death”
a. Not limited to penal punishment BUT also applies to civil laws
b. Trial by legislature undermining the basic right to a fair trial and usurping the role of the judiciary. c. federalism: keeps the legislature form exercising judicial power
d. Does the law seek to impose punishment? -if yes then it’s a bill of attainder.
e. Main issue: What is “punishment”? (broader concept then penal sanctions)
-SC states look at 3 things:
1. Does the legislative action inflict punishment in the historical sense?
-encompasses: death, imprisonment, banishment, punitive confiscation of property, denying individual a particular type of employment
2. Does the legislation action further a non-punitive goal?
2 examples:
a. Nixon v. Administrator: Congress enacted statute that gave power to take President Nixon’s papers, he said he is entitled to compensation, Nixon’s attorney said it was a bill of attainder. The SC rejected this argument, they said that the statute needs to inflict punishment. Here the Court said it was not punishment the federal government had historical and criminal need to preserve the papers (Watergate scandal)
b. Selective Service v. Minnesota Public Interest Research Gr