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

Con Law Pettys Spring 2016

When should we ignore precedent?

Court overturned precedent in
Brown v. Board of Education overturned .

Framer’s intent

Court looks at objective intent – what a reasonable person have thought

For many decades, the Bill of Rights did not apply to the states

We now know this is not true anymore

14th Amendment


P&I clause of 14th Amendment does nothing

The only thing the P&I clause gives are the three premises from

Equal Protection Clause – in the discussion of P&I

Strict scrutiny for third dimension right to travel (the right to become a resident of a state and enjoy the same benefits as the other state citizens) – Saenz & Shapiro

Procedural Due Process
Substantive Due Process

1st sentence reversed

Dred Scott – Slaves are not citizens of the United States and thus do not receive the privileges and immunities afforded to citizens

2nd sentence (P&I) – The clause, big picture, is trying to nationalize the country

This nationalizing – bringing everyone together to create uniformity – it reduces state diversity

P&I Clause – Privileges and immunities clause

One theory of drafting this text – we are going to unify this country by assuring some similarity among rights that people have regardless of where they live
Another theory of drafting this text – to make the Bill of Rights applicable to the states – either all of the bill of rights, or some of the Bill of Rights

*This is a good argument for what the P&I clause was intended to do

Dred Scott used the words prior to the Civil War – “Privileges and Immunities” to describe the rights of speech, assembly, and gun possession
Now we have the 14th amendment saying you are a citizen of U.S. and the state where you reside if you are born here, and states can’t abridge P&I of being a citizen of the United States.

Then, guns, speech, etc., are captured by P&I of the 14th amendment, so states have t honor those rights to the people

Perhaps the P&I drafters – this was about the Black Codes

Follow up to the 13th amendment – no more slavery, but with Black Codes, their rights are still restricted

14th Amendment Privileges & Immunities/Brief Introduction to Equal Protection Clause

Slaughter House Cases (1868)

Louisiana legislature was trying to solve a problem – a lot of butchers throughout the city that were creating problems such as run-off

Legislature says we have health problems, aesthetic problems, smell problems

We want to condense this process into one business

This newly charter corporation is given a monopoly

All slaughtering needs to be done on this property

Butcher’s 14th amendment Privileges and Immunities argument – P&I means you get to do the job and do it the way you want to do it. That is one of the privileges of being a citizen.

Court rejects this argument and offers premises

Premise #1 – The way the 14th Amendment starts – 1st sentence – all persons . . . of U.S. are citizens of U.S. and of the state where they reside. These are two kinds of citizenships – federal and state. That is important.
Premise #2 – You have two different types of citizenships. The right to pursue the profession of your choosing (employment related claim) is a right that you have – it is a privilege you have, but a privilege you get through your state citizenship, not something you get through being a citizen of the United States.
Premise #3 – Nearly all rights you can think of, are privileges of being a state citizen

1st sentence of 14th Amendment makes clear there are two citizenships
2nd sentence of 14th Amendment is speaking to federal citizenship

You have some rights as a state citizen/federal citizen

Where do we go to find what rights you have as a state citizen?

State law; Article IV – the citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states

* – Whatever P&I you have as a state citizen, you have that protection through Article IV, not the 14th Amendment

Under Article IV, state can restrain you how they like

*Equal-handedness is the only protection given in Article IV – Slaughter House states that under Article IV P&I clause – it says to the states, you decide what rights you want to give. The only restriction is, whatever rights you decide to give to your own people, you must give to visitors or newcomers

Premise 3 – see above
Butchers made a substantive due process argument – they had a right to employment under the due process clause – court rejected it. Is that a winning argument under Lochner?

*We are left with the P&I clause of the 14th Amendment doing nothing!

The P&I clause that talks about protections of privileges and immunities by virtue of state citizenship is a larger basket than citizenship of the United States.
State law defines your rights for State citizen P&I rights
How much protection do you get from these rights (from state citizenship) – based on federal Constitution? – Article IV

Iowa has to treat you the same as it treats its own people
If Iowa gives little, then you get little
Under Article IV (from ) – each state sets its own bar (fills up its own basket) – whatever it puts in its basket it must give even-handedly to its own people and visitors of the state

Crandall v. Nevada (1867)

Involved a situation where Nevada was regulating state-coach operators and so when the stage coaches were about to leave the state of Nevada – 1 dollar tax. To leave Nevada, it costs you a dollar

Court strikes the law down

14th Amendment P&I clause came into existence in 1868 – But, wait, cites in the P&I clause discussion

Slaughter house points to Crandall saying that 14th amendment gives you protection of traveling over state lines. So the 14th Amendment P&I clause is not giving that right indicated in Slaughter House. Other parts of the Constitution/federal law are giving us that protection. Because it is federal law giving us that protection, and because federal law is supreme law of the land – ever since the Constitution was ratified, it is supreme law of the land. If it gives me a right like it did in Crandall, then federal law gives me that law. IF a state interferes with that right – unconstitutional. Where do we get those rights if not from P&I clause. They analogized in Crandall to McCullogh v. Maryland. -Crandall relied on McCullogh – just like we can’t let Maryland affect the whole country by taxing the bank, we so, can’t allow a state to tax people who are trying to leave the state, because they want to have an encounter somewhere to have an encounter with the feder

of 14th Amendment

There are two due process clauses – 5th and 14th Amendments

5th Amendment applies to federal government
14th Amendment applies to the states
There are two different audiences for these two clauses

What does Due Process mean?

Imagine in your mind, a spectrum – how about just telling me; notice and a statement of reasons; would you like a chance to respond to those reasons; do you want to just write a letter or a formal sit down; do you want to call witnesses

* – We have not said anything about whether the reason is good enough. Procedural due process only deals with process. It does not involve what the conversation is about. That deals with incorporation and due process. We are not talking about that. Procedural due process has only to do with the process. It has nothing to do with the substance of the conversation.

Property and Liberty Interests for Procedural Due Process

When government denies people of property or liberty – what procedural due process is owed?

Two questions to focus on – What counts as property and liberty interests. And how much process do you get?

Property Interests

Goldberg v. Kelly (1970)

*First case where we say, must give procedural due process
Welfare recipients are deemed to have a in the welfare benefits they get (they had been getting them for awhile)

Board of Regents v. Roth (1972)

You don’t have to have a hearing for a re-hiring of an adjunct professor when you have a one-year contract.

No property interest for one year, no tenure

He wants procedural due process – wants to know why he is not being brought back

He loses. He should not have expected to come back. He was hired for one year.

Perry v. Sinderman (1972)

College had a de facto tenure program. Professor was not tenured.

He had an understanding he might be brought back

For due process purposes, a person’s interest in a benefit is a property interest

He had a procedural right

Lets put these first 3 cases together

Property interests are not created by the Constitution itself. The Constitution merely provides some procedural protection. State law or federal law, not the Due Process Clause. Contract law, property law, some administrative law are some examples that create a property interest.

Town of Castle Rock v. Gonzales (2005)

Restraining order against estranged husband
She brings a procedural due process claim against the police for not having protected her property interests in this matter (restraining order)
Under Colorado, police had discretion in enforcing restraining orders. Because it is so discretionary, no property interest.
No procedure because she has