Constitutional Law Outline:
Important to Remember: Six types of Arguments to Make:
1. Textual – actual text of the constitution
2. Historical – practices that develop
3. Structural – Infer meaning by set up of the Constitution; 3 branches; Federal and State sovereignty
4. Doctrinal – Precedent
5. Ethical – moral composition of the American people (is it good for society)
6. Prudential – cost benefit analysis, policy arguments
I. Introduction to the Constitution’s Protection of Civil Rights and Civil Liberties – From 1789 to 1890: The Bill of Rights Does Not Apply to the States
a. Application of the Bill of Rights to the States
i. The Rejection of Application Before the Civil War
1. Barron v. The Mayor and City Council of Baltimore (1833)- (takings clause)
a. Justice John Marshal:
i. Holding: Bill of rights do not apply to the state—“Takings Clause” 5th amendment does not apply to state (restriction of fed action, not state conduct)
ii. Reason: Framers clearly intended (language) the BR to apply to the federal government, because there was not need to worry about state encroachment.
2. Note: Before Civil War, civil liberties were defined and protected entirely by the state. Remained so until the Civil War, when it was realized that citizens needed some protection from state government
a. This came from the 14th Amendment; which is limited to state government and does not reach private parties
i. P&I Clause- American citizens have privileges and immunities that come from being citizens of the US, which the state cannot impose on
ii. DP Clause- Takes place of the P&I Clause which was originally what people looked at to protect civil liberites
iii. EP Clause- took over for DP for a little while, but today EP and DP remain strong and P&I Clause never resurfaces to apply protection from state government
ii. A False Start in Applying Bill of Rights to the States: The Privileges and Immunities Clause and the Slaughter House Cases
1. Enactment of Civil War Amendments: 13th, 14th, & 15th were enacted for the purpose of barring discrimination by states against individuals
2. Privileges and Immunities Clause 14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US.”
a. Slaughterhouse Cases (1872): Justice Miller–Supreme Court did not take the view that this Clause would apply to states. In (5-4) held the 14th Amendment P&I merely forbade state infringement of the rights of national citizenship, not state citizenship
i. Court’s Reasoning: First sentence of P&I distinguishes b/w US citizen and state citizenship. “Fundamental” civil rights, including right to practice trade, were the domain of the state, not fed. gov. Therefore, P should look to state for protection; if no protection, then P was out of luck
1. 14th Amendment doesn’t say anything about state government and if it wanted to protect people from state gov. It would say so
a. Not within spirit of founders intent
b. P&I Clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws
ii. Dissent: the Clause guaranteed to every US citizen that his “fundamental rights,” would not be infringed by any state.
1. US citizen, but only a resident of a state à rights depend on citizenship, not residence
2. Clearly meant to apply to states, otherwise vain and idle enactment
iii. Takeaway: All Civil liberties come for the state government, not the federal government
iii. Note: Something has to be a law and something fundamental in nature before you can have due process of law. For a period of time, civil liberties were protected by the DP Clause, EP became the clause to protect the liberties of the people because of the appeal of the “equality.”
II. Due Process
a. Intro: 5th and 14th Amendment- neither federal nor state government can deprive any person of life, liberty, or property w/o due process of law.
i. DPC give 2 types of protection:
1. Procedural Due Process- refers to the procedures that government must follow when it takes away a person’s life, liberty, or property. (ex. What kind of notice, hearing that must be provided)
2. Substantive Due Process- asks whether government has an adequate reason for taking away a person’s life liberty, or property. Focuses on the sufficiency of the justification for gov. action
a. Used to protect economic liberties and safeguard privacy
ii. RULE: Rights under the DPC are Fundamental Rights, Gov. must prove action is necessary to achieve a compelling purpose.
iii. RULE: Economic and Social-Welfare Regulation must satisfy minimal rationality standard and generally law does not violate DP
b. The Old Due Process – Protection of Economic Liberties – Rational Basis Review
· Economic Liberties- consitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property
i. Rise – Lochner Era (1870s- 1937)
1. Rested on assumption that freedom of contract and related property rights were natural liberties
2. Court aggressively protected economic rights under DPC- basic right under liberty provision
a. Found many laws unconstitutional as violating the 14th Amendment by impermissibly interfering w/ freedom of contract
b. Freedom of contract under DPC limited government’s ability to impair existing contracts and to regulate the content of future contracts
3. Court used federalism to limit the ability of Congress to regulate the economy- Limited Congress’s power to Commerce Clause and found 10th Amendment reserved authority exclusively to states
4. Laissez-faire economy and to protecting business from government regulation
5. Invalidating state laws protecting workers, b/c violated freedom to contract
a. Lochner v. New York (1905) (Peckham)- Court held that a state law regulating the hours bakery employees may work was not a valid exercise of state police powers. (later overturned)
i. Fact: State labor law prohibited employment in bakeries for more than 60hrs a week or more than 10hrs a day.
ii. Rule: Must have a rational means in pursuit of a legitimate state end. If the contract can be one which the state, in the legit exercise of its police powers, has right to prohibit, it is not prohibited by the 14th amendment. But not exercise of police powers, then invalid.
iii. Dissent: This was a significant health issue. This is a reasonable means to a legit. End
iv. Lochner announced 3 themes:
1. Freedom of contract was a right protected by the Due Process Clause
2. The government could interfere with freedom of contract only to serve a valid police purpose of protecting public health, safety, or public morals.
3. Judiciary would carefully scrutinize to ensure that it truly serves such a police purpose
a. Scrutinized both the ends served by legislation, to assure that there really was a valid police purpose, and the means, to assure that the law sufficiently achieved its purported goal.
6. Laws Protecting Unionizing
a. Coppage v. Kansas (1915) (Pitney)- Court declared unconstitutional federal and state laws that prohibited employers from requiring that employees not join a union.
i. Reasons: Infringing on the right to contract. Not a legit. exercise of police power
7. Maximum Hours Laws
a. Muller v. Oregon (1908) (Brewer)- Court upheld macimum hours law for women.
i. Limits Lochner.
ii. Holding: Within the police power of states b/c it is a matter of public health that women be held to a maximum hours law for their fragile state
iii. Reasons: Women cannot contract for themselves. And b/c there was widespread belief that women’s physical structure, and the functions she performs justify special legislation restricting conditions.
8. Minimum Wage Laws
a. Adkins v
BR protections will count but it also leaves room for the addition of un-enumerated rights
3. Issues in the incorporation debate:
a. Historical/Textual – did the framers of the 14th Amendment intend for it to apply the BR to the States
i. Complete incorporation view says yes, b/c the events that led to the culmination of the 14th Amendment show that one of the main goals was to make it applicable to the states
ii. Partial incorporation view says no, b/c Congress wouldn’t have approved such a result and the states wouldn’t have ratified it
b. Federalism – applying the BR to the states imposes a substantial set of restrictions on state and local governments
i. Complete – federalism is not a sufficient reason for tolerating violations of fundamental liberties; history shows there are instances where states and state courts will not adequately protect rights; safeguarding precious liberties should not rest on faith in the states
ii. Partial – the desireability of preserving state and local governing autonomy by freeing them from the application of the BR; states on their own are capable of advancing individual rights
c. Role of Judiciary
i. Complete – selective incorporation gives judges too much discretion in deciding what rights are fundamental
ii. Partial – total incorporation would mean more judicial oversight of state and local actions and less room for democracy to operate
ii. Protecting Fundamental Rights Through Due Process and Equal Protection: An Introduction
1. The Concept of Fundamental Rights
a. Stringent Scrutiny – States objective must be compelling and means must be narrowly tailored
b. Right to “Privacy”: Personal Autonomy
c. Rights are part of the Liberty guaranteed in the 14th Amendment
2. DP vs. EP: Basis for protecting fundamental rights is how Constitutional arguments are phrased
a. DP: Issue is whether government’s interference is justified by a sufficient purpose
i. If law denies the right to everyone, DP is best ground for analysis
b. EP: Issue is whether government’s discrimination as to who can exercise the right is justified by a sufficient purpose.
i. If law denies right to some, while allowing it to others, then EP or DP
3. Ninth Amendment: “The enumeration in the Constitution of certain rights, shall not be construed to disparge others retained by the people”
a. Provides a textual justification for the Court protect non-textual rights
4. Right to Privacy – is a penumbral right arising from various rights found in constitution
a. Included: Marriage, procreation and abortion, contraception, living with one’s relatives, private consensual sexual activity, and the right to die
b. Not Included: right to send children to discriminatory private schools, government-funded abortions, the right of non-custodial fathers of illegitimate children to block adoption of the children, and the right to engage in adultery
5. Framework for Analyzing Fundamental Rights:
a. Is there a fundamental right?
i. Constitutionally guaranteed
ii. Deeply rooted in the nation’s history and tradition
iii. The Fundamental right must be carefully described
iv. Political Process