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Constitutional Law II
University of Iowa School of Law
Pettys, Todd Edward

Pettys_Conlaw2_Fall2010.docx
Introduction
· Constitution has elements of both a poem and contractà
o Contract people voted on to establish their fundamental law/principles.
o Poem because much of language is left to interpretation—text is subjective and you have to make a judgment.
· Judicial Interpretation
o Strict constructivism: plain meaning of text (does not get us very far in analysis)
o Original Intent: What people who wrote or voted on text intended it to mean. (No longer used)
o Original meaning: Objective meaning; what a reasonable person would say this text meant; use definitions of terms.
o Tradition: By tradition, what meaning Americans have assigned to text.
o Precedent: Begs the question because judges’ decisions bind judges’ decisions.
· Standards of Review:
o Mere Rationality:
§ (1) Legitimate governmental objective; and
§ (2) Minimally rational relation between the means chosen by the government and state objective.
o Intermediate Scrutiny:
§ (1) “Important” government objective; and
§ (2) Substantially related means to the government objective.
o Strict Scrutiny:
§ (1) Compelling objective; and
§ (2) Means chose by the government must be necessary to achieve that compelling end. (no less restrictive alternative available).
Privileges and Immunities Clause(s)
Article IV, §2:
· Serves as a restraint on state efforts to bar out-of-staters from access to local resources.
· Protects from discrimination on the basis of state residency
· Dormant Commerce Clause v. Privileges and Immunities Clause:
o Corporations get no protection under PIC
o Congress may authorize, through affirmative exercise of its commerce power, state practices that would otherwise be impermissible under the DCC. Congress may not waive the rights under the PIC.
o PIC does not extend to all commercial activity but only to the exercise of “fundamental rights.”
o Court has declined to recognize any “market participant” exception under the PIC as it has done under the DCC review.
Bill of Rights
· Originally guaranteed individual liberties only against the federal government.
· Reconstruction Amendments for the first time added to the original Constitution new express restraints on the states.
· 14th Amendment’s due process clause was later read to made the procedural requirements that govern federal criminal law as a result of the Bill of Rights applicable to state criminal proceedings.
· Before Civil War, there were very few explicit references to individual rights in the original constitution.
· Amendments did not apply to the statesà could set religion, take away right to an attorney, etc.
Barron v. Mayor and City Council of Baltimore:
Held that the Bill of Rights restricted only the national government, not the states. Original Framers did not intend amendments to apply to state governments.
Post-Civil War Amendments
· 14th Amendment: broad, sweeping terms and is not limited to the problems of race, color, or previous condition of servitude.
· 15 Amendment: spoke explicitly to racial discrimination in voting.
Slaughter-House Cases
· Challenge brought under 14th Amendment—butchers saying they were being denied their right “to exercise their trade.”
· Court denied claim that the provisions of the Bill of Rights are the basic “privileges” and “immunities” possessed by all citizens (applying the Bill of Rights to the states).
· Holding: The privileges and immunities 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.
· Privileges and immunities are left to the State governments for security and protection and not under the special care of the federal government.
o Privileges and immunities clause is removed as a basis for applying the Bill of Rights to the states or for protecting any rights from state interference.
· Case nullified the privileges and immunities clause of the 14th Amendment.
· Being a citizen of the U.S. is not the same as being a citizen of a state.
o Dual citizenship
o 14th Amendment—U.S. citizen
o Article IV, §2—state citizen
§ State has to treat non-citizens the same as state-citizens.
§ They can take away a right, but they have to take it away from bothà no 14th Amendment protection.
§ If state interferes with right as a federal citizen, then you have a 14th Amendment claim (however, this has been rendered virtually useless).
· Therefore, protection is going to come from substantive

f the interest to the individual.
· Procedural Due Process Analysis:
o (1) Is there a life, liberty, or property interest at stake? If not, end of analysis.
o (2) If yes, then we have to decide how much process you are given.
§ Mathews v. Eldridge gives us three factors that should be balanced:
· (1) The importance of the interest to the individual;
· (2) The ability of additional procedures to increase the accuracy of the fact-finding;
· (3) The burdens imposed on the government by requiring the procedures.
o In deciding what procedures are required, the Court employs the Mathews three-part balancing test.
Defining “Property” and “Liberty”
· State law and custom creates the expectation of a property interest in employment.
· Due Process Clause does not protect against deprivation of all government benefits, but only of “entitlements” created by state law.
Goldberg v. Kelly:
If a person has been receiving welfare benefits, he probably has a property interest in continuing to get them, so the government cannot terminate those benefits without giving him procedural due process.
Board of Regents v. Roth
Non-tenured teacher has no property rights in employment and therefore had no constitutional right to a statement of reasons and a hearing before being denied rehire.
Perry v. Sindermann
Non-tenured teacher won a procedural due process right to a hearing due to their being a mutually explicit understanding that supported his claim of entitlement to a hearing—state created expectation of tenure.
Arnett v. Kennedy
No majority opinion, but six justices recognized a property interest of a non-probationary employee. Ruling was that there was not a denial of due process because the government provided a pre-termination review and a post-termination hearing.
Bishop v. Wood