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

Pettys Constitutional Law II Outline Spring 2013
I.                  Introduction
Interpreting the Constitution is like a mix of contractual interpretation and lyrical interpretation. The Founders agreed on principles, but left the language ambiguous so that it is open to new/different readings.
Types of Interpretation:
1.      Plain Meaning: doesn’t go far (need to be 35 to run for President)
2.      Original intent: original subjective intentions. àNot used anymore. For example, each member of Congress votes on a bill for different reasons specific/subjective to him.
3.      Original Objective Meaning: Scalia and Thomas championed this. What would the average person, at that time, thought the words to mean. àLess subjective.
4.      Cases/Precedent: This is limited, cases get overturned, and no precedent for cases of first impression.
5.      Traditions of our People: Issue is to what level of abstraction do we use? àNot a tradition to let homosexuals marry each other; but it is a tradition to allow consenting adults to marry each other.
Justices are not voted, and the country is not run by 5 members of the bench. Takes a super majority to overturn a S.C. case by amending the Constitution. Justices must constrain themselves. Difficult sometimes because we often form convictions before reading the Constitution. For example: do you have a right to contraception? Most say yes before finding the right in the Constitution.
II.               Privileges and Immunities
Article IV §4: grants all citizens Privileges and Immunities in the Several States
–          Broad set of rights in the “several States” àSame protection you’d expect from Federal Government
–          However, States are not required to grant these rights, so there is little PROTECTION, only protection to out of state residents (doesn’t protect corporations or aliens)
o   “Prevents states from discriminating against out-of-state citizens and residents with regard to rights “fundamental to national unity” unless (1) the discrimination is closely related to a substantial state purpose (e.g., protecting natural resources owned by a state); and (2) less restrictive means to accomplish this purpose are not feasible.” Supreme Court of New Hampshire v. Piper (p 231) –flashcard 357.
§  Important bite of Article IV: virtually all P&I claims can also be Equal Protection Claims. However, non-residency is not a suspect classification under Equal Protection so it gets rationality review. However, a valid P&I Claim would get strict scrutiny. (Flashcard 374)
14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
–          Whatever is in the Article IV basket is NOT in the 14th Amendment basket.
–          Rights are limited to fundamental rights shared by all U.S. Citizens, namely the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peaceably, and to discuss matters of national legislation. Twining v. New Jersey – 1908.
Bill of Rights: State v. Federal
Originally the Bill of Rights only bound the FEDERAL government, not the States. The thought was we didn’t want another centralized government regulating states. Also, it was believed the Bill of Rights only applied to U.S. citizens, and not foreigners. àExample: Dred Scott found the slave not to be a U.S. Citizen, and therefore the Court had no jurisdiction, and therefore slaves would not have Bill of Rights Protection. The dicta in Dred Scott makes it seem that if you are a U.S. citizen, you have Bill of Rights protection, but in reality, that is not how it is read today. The P&I Clause is essentially dormant.
Barron v. Mayor and City Council of Baltimore – 1833 (p 349): Plaintiff’s wharf was destroyed by State action and he claimed it violated the takings clause: property shall not be “taken for public use without just compensation.”
–          Held: the Bill of Rights protects only against Federal Government and does not restrict the power of State Government.
o   Reasoning: The Bill of Rights does not specifically mention that it restricts State action, unlike the text of the original Constitution: look to Article 1 §9 & §10 for distinction between Federal and State government. Article 1 §9 says what Congress shall not do, while §10 says what States shall not do.
Black Codes: We will ban slavery, but doesn’t mean we will give blacks equal rights: still can’t buy/sell property, enter contracts, or testify against a white person. àThis led to the 14th Amendment, giving them these rights
Slaughter-House Cases – 1873 (p 351): Some butchers were cut out of the monopoly run by the state of Louisiana. They challenged the State law as a violation of 14th Amendment P&I right to “exercise their trade.”
–          Held: Only need to make and enforce laws equally among the citizens of the United States. The 14th Amendment does not require States to grant rights enumerated by the Bill of Rights.  
o   Reasoning: mandating the States to grant the same Privileges and Immunities in the Bill of Rights would work as great “censorship of State legislation”
**14th Amendment is the P&I of Federal Citizens and Article IV is P&I of State Citizens. These are mutually exclusive. The more rights get put into one leave less for the other. Since Article IV is so broad, the P&I Rights of the 14th Amendment is equally narrow.**
Dormant P&I Clause (Art. IV, §2): Similar to the Dormant Commerce Clause (Congress has power to regulate interstate commerce, which in the negative means that States cannot regulate interstate commerce). Both dormant clauses protect against discrimination by serving as a restraint on state efforts to bar out-of-staters from access to local resources.
–          Art. IV P&I only extends to fundamental rights, not all commercial activity. Congress cannot waive P&I rights like it can waive power to enforce Dormant Commerce Clause.
–          P&I similar to 14th Amendment’s Equal Protection Clause as it protects against discrimination; here it is on the basis of state residency.
Slaughterhouse important because:
1.      Drives a stake through the heart of the 14th Amendment P&I Clause
2.      Creates tremendous pressure on our system because any right you want to claim that is not expressly spelled out in the Constitution is going to be difficult to protect from the States. (Tough to argue that you have Constitutional right to use contraceptives, get married, etc.)
a.       There are some unenumerated rights that have protection (abortion, gay marriage), we will create these kind of controversial rights by implementing substantive due process.
14th Amendment P&I Clause may protect: 1. Right to peaceably assemble

are to Board of Regents v. Roth – 1972 (p 495): No property interest in a non-tenured teaching position, and therefore no process required before not rehiring the position.
§  Property Interest: Not given by the Constitution, but instead by State or Federal law that gives rules of understanding of property or source of entitlement of certain benefits.
·         Property interest was found in Perry v. Sinderman – 1972 (p 496) when a college had a de facto tenure program.
–          No enforceable property right for police enforcement of a restraining order. Town of Castle Rock v. Gonzales – 2005 (p 497).
A person’s mere “expectation” of maintaining benefits (for a job) isn’t sufficient to create a property right; the person must have a “legitimate claim of entitlement” to continued benefits, and this in turn requires a government-created expectancy to applicable law (e.g., tenure for public school teachers).
Liberty Rights:
–          Liberty rights contains many rights, not just freedom of bodily constraint; also includes right to raise children, marry, practice religion, enter contracts, privileges essential to pursue happiness, etc. VERY BROAD
–          Source of “Liberty Rights”: Bill of Rights, State/Federal Law, and even freestanding meaning of “liberty”
–          No Constitutionally protected right of reputation. Paul v. Davis – 1976 (p 498).
o   This is a limited reading of “liberty” as the pursuit of happiness likely includes the right to reputation; however, Courts were concerned with the excessive interference with administering State programs
§  Davis gave rise to “stigma plus” doctrine. If your reputation is harmed, that does not invoke Due Process, but if there is an additional harm, it may invoke Due Process.
·         Example: Police put up a picture of a woman in liquor stores and told them not to sell her booze. Harmed her reputation, PLUS her ability to purchase alcohol.
–          In order to get procedural rights, you just have to point to support of a substantive claim on the merits. You do not have to prove that claim, you just have to point to some SUPPORT of a substantive right.
o   Once you get process need to know: (1) How much process do you get, and (2) When do you get it?
§  How much (from most to least): Evidentiary hearing, jury trial, simple notice.
§  You want process before denial of benefits, like with welfare.
o   The test is whether there is DISCRETION. If a government official has discretion to grant or deny a benefit, it is not mandatory and therefore is not a “property interest”
o   As the government, to curtail procedural due process you limit property and liberty narrowly, and can limit the amount of process you can receive.