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

Constitutional Law II


Fall 2014

I. P&I Clause of Art IV

a. §2: Citizens of each State shall be entitled to all Privileges & Immunities of citizens in the several states.

b. Federal protection- every state has to give you (visiting citizen) the same rights it affords its own citizens

c. Dred Scott- slave not afforded protection under this because he is not a citizen- ct defined citizen until 14th Amen. reverses it

II. 5th Amendment

a. “…nor shall be deprived of life, liberty, or property, without due process of the law”

b. Limits authority of national government and not of the states (Baron v. Mayor & City Council of B-more)

III. 14th Amendment

a. “All persons born or naturalized in US… citizens of U.S. and state where they reside. No state shall make or enforce any law which shall abridge the P & I of U.S. citizens; nor shall any State deprive anyone from life, liberty, or property, without due process of the law; nor deny to any person within its jurisdictions the equal protection of the laws”

b. Operates against the power of the states.

c. Slaughterhouse Cases (1873)- Cts first efforts to interpret 14th Amen (read it narrowly)

i. Facts – Ps were white butchers suing because state had granted a slaughterhouse monopoly – claiming privilege to work. Court found they had no relief under the P or I Clause.

ii. Court’s Comparison

1. P&I Clause (Art. IV)—P&I of nonresident, citizens can assert other states (include right to work)

2. P or I Clause (14th Am.) – P or I of citizens of the United States, citizens can assert against state where they reside (but does not include right to work as under the P&I clause of Article IV)

iii. Sole purpose of 14th amendment was to “declare to states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more or less, shall be the measure of the rights of citizens of other states within your jurisdiction.”

iv. Argument of P&I that states must respect all P&I of citizens of other states wouldn’t work either because the butchers are from the same state restricting it’s P&Is.

v. Under Supremacy clause, federal law is supreme

1. Meaning that state can’t interfere WHICH means that whatever right you get as a federal citizen you get as a state citizen

vi. Starts us down the path of selective incorporation

IV. Interstate P & I Clause of Art IV.

a. Like the 14th Amendment Equal Protection Clause, it protects citizens against discrimination- here on the basis of state residency

i. Like the dormant commerce clause it serves as a restraint on state efforts to bar out-of-staters from access to local resources (Federalism).

ii. Right to move freely is a fundamental right

iii. Differences:

1. Corporations enjoy no protection under the P&I Clause.

2. Congress may authorize, through affirmative exercise of its CC power, state practices that would otherwise be impermissible by the DCC, the P&I in contrast is arguably a rights provision that Congress may not waive.

3. The P&I clause does not extend to all commercial activity but only to the exercise of “fundamental rights.”

4. The Court has declined to recognize any “market participant” exception under the P&I clause as it does under the DCC.

b. Resurrection of the privileges and immunities of national citizenship: right to travel

i. Crandall v. Nevada- 1867 case emphasized citizen’s “right to come to the seat of [national] government” right to travel.

1. Decided BEFORE 14th amendment was even proposed—had no influence- authority where we get right to travel

ii. Saenz v. Roe p.440

1. Cali made a statute limiting welfare benefits available to new residents.–> Citizens of the US, whether right or poor, have the right to choose to be citizens, “of the state wherein they reside” 14 Amend §1. The states do not have the right to select their citizens. ​

2. Case treats any classification that treats new state citizens differently from longtime residents is presumptively unconstitutional, regardless of benefit to state.

a. AFTER Saenz, a state may draw no distinction b/w classes of citizens based on length of residence w/o compelling justification

3. The right to travel had 3 different components.

a. Protects a citizen to enter and leave another state and be treated as a welcome visitor rather than an unfriendly alienà (free interstate movement

b. Art IV §2 removes from the citizens of each state the disabilities of alienage in other statesà enjoy P&I of citizens of state they are visiting

c. The right of a newly arrived citizen to the same P&I enjoyed by other citizens of the same state. (this case is focused on this component).

iii. The P&I of the 14th amendment always has protected the right to travel.

1. Slaughter House Cases- a citizen of the US can of his own volition, become a citizen of any state of the union by a bona fide residence therein, with the same rights as other citizens of that state.

2. Shapiro v. Thompson- invalidated state law that denied welfare benefits all together to new state residents in the 1st year.


I. Procedural Due Process- 5th and 14th Amendment

a. §3 Procedural Due Process and the Right to a Hearing

i. Procedural due process argument assumes that the law is otherwise valid, but asserts that the manner employed in enforcing or applying it is unfair.

1. Crt decides the procedures required when gov’t deprives person of liberty or propertyà was there a pre-existing right to liberty or property in the 1st place

ii. Doesn’t matter whether reasons are sufficient to garner gov’t action—it’s about the processàGov’t must

t Process is “Due”?

1. Mathews v. Eldridge Test: Ct held pre-termination evidentiary hearings not required in the context of disability benefits.

a. Court uses 3-factor balancing test to find what procedural guarantees attach (resolves issue of when hearing must occur and how elaborate the hearing must be): Were the procedures afforded sufficient?

i. Significance of the private interest that will be affected by the governmental action (livelihood, welfare benefits, etc.)

ii. The extent to which additional procedural safeguards would reduce the risk of error (significant risk to the interest)

iii. The public interest in resolving the matter quickly and efficiently (legitimate or strong interest)

b. Test involves cost-benefit analysis where court evaluates need for particular proc. by balancing the added benefits it might afford an aggrieved individual against burdens it will impose on gov’t/public

c. Cautioned applying test however, “substantial weight must be given to good-faith judgments” of those who determined that he challenge procedures were adequate

2. Exception to Prior Hearing Requirement

a. Court sometimes allows hearings before deprivation of liberty or property have occurred. (involves situations where it would be impossible or impractical to conduct prior hearing or ct believes risk of serious deprivation is low)

b. Ingraham v. Wright- corporal punishment in schools case where Court upheld FL statute authorizing the punishment without giving children opportunity to be heard before punishment was imposed

i. Proc. DP was triggered since paddling impairs child’s liberty interest in bodily security BUT using the Mathews Test it would’ve been impracticable to require prior hearing in school setting. (Better to stop practice of corporal punishment all together)

II. Incorporation

a. 14th Amend. became constitutional vehicle through which courts apply BoR to the states.

i. Vested Congress w/ broad authority to enforce civil rights against state encroachment.

ii. Historically, Twining v. NJ (1908), Court declined to consider whether the BoR had been incorporated in it’s entirety by 14th Amen.

1. “Right is protected by DP clause not because it is enumerated in 1st 8 Amendments, but because it is of such a nature that it’s included in the conception of due-process of law.”