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

Todd Pettys

Constitutional Law II Outline

Fall 2016

The Privileges and Immunities Clause(s)

Originally rights given in BoR—understood only to apply to acts of fed gov — nothing to do w/the states

A state could est. religions and cruelly punish
States est. religion & people could be billed for supporting the church and it was a crime not to go
Barron v. Mayor and City Council of Baltimore — BoR ≠ apply to state & local gov, only fed

For protections w/in a state, you had to go to the state government

Want a state constitution that protected a citizen’s rights, but only if you’re allowed
Dred Scott v. Stanford — Slaves ≠ citizens under the United States Constitution.
Black Codes: Made it illegal for blacks to do various things — enter contracts, serve on juries, testify against white people, create wills, etc.

There are 2 different P&I Clauses — one in the 14th Amendment and one in Article 4, §2
14th Amendment P&I Clause

14th Amendment, Section 1: All person born or naturalized…No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States…
Purpose of 14th Amendment: (P&I Clause)

Nationalizes the country

Reduces variations between state laws and any conflict w/federal law
P&I deals w/BoR — perhaps the textual vehicle to change the idea that BoR ≠ apply to state gov — since before it didn’t
Much of the BoR is now enforceable against the states — very ambitious idea

Narrower idea — protects certain rights — but not all rights w/in BoR

Black codes type of idea and dealing w/fundamental rights

Property ownership, right of assembly, contract law, wills, etc.

Slaughterhouse Cases — To interpret provision of Constitution = look at purpose of enacting

Were Q to ct about what they thought 14th amend should be used for & meant to do

Big premise of case: Citizens of US and Citizens of a particular state are different
P&I gotten by virtue of being a state citizen > than by being a US citizen
Fed P&I’s = stingy bc only “fundamental” rights covered
Dissent — P&I Clause does nothing — which is how it works out in present

Doesn’t really change anything or do anything for anyone

NOTE TO FUTURE SELF — They (P’s in the case) made a substantive due process argument that they had a right to employment

Ct rejected it
Is that a winning argument under Lochner?

14th Amend begins — “All Person’s born/naturalized in the US & subject to the jurisdiction thereof, are citizens of the US & of the State wherein they reside…”

Distinguishes between US & State citizenship — splitting the atom
Since a person has 2 dif citizenships, some rights (like having a job) is a right you have, but it comes through your state & not fed citizenship
To figure out which rights are which, look at Art. 4, §2 = fed P&I

States get to decide what rights to give to their citizens, BUT
Rights state gives to own citizens, must be given to non-citizens
Just gives even-handedness for when a person visits another state

Under the Supremacy Clause, federal law is supreme

Federal law decides what you get as a federal citizen
State law defines what you get as a state citizen
State laws can’t conflict w/federal law
Since fed law gives ppl the right to go from state to state, state law ≠ say you ≠, so no purpose in the P&I Clause

Thru Slaughter-House, SC put a lot of pressure on P&I Clause

If not for these cases, in theory, could’ve been used to strike down Black Codes

Instead was found in Equal Protection Clause

Also could’ve been used to bring the BoR to bear on the states

Saenz v. Roe (1999) — Case w/CA trying to keep full welfare benefits to longtime citizens

Under the P&I Clause, State must provide same benefits to new & old residents
Each state decides what P&I’s it gives to it’s own citizens — but it must give to ALL people that are in their state as though they were citizens (Right to Travel)

Right to Travel

3 main components:

Can cross state borders/enter & leave another state (Crandall below) (EP Clause) (Commerce Clause)
Be treated as a welcome visitor & not an unfriendly alien when temporarily present in 2nd State — depends on what that state gives to their own citizens (Visitor) (Article 4, §2)
Right to be treated like a citizen of that state to make it home (Distinctions between long time & new citizens = strict scrutiny) (Saenz) (14th P&I Clause)

Breaks down to:

Requiring time for divorce and tuition = OK
Requiring time for hospital, voting, or welfare ≠ OK

Federal P&I Clause (Article 4, §2):

The Citizens of each State shall be entitled to all Privileges & Immunities of Citizens in the several States
Like Dormant CC — restraint on state efforts to bar out-of-staters from access to local resources

Corporates don’t have any protections under P&I Clause
Congress can authorize thru affirmative exercise of the CC, state practices that would otherwise be impermissible under DCC, but ≠ for P&I Clause
P&I Clause ≠ extend to all commercial activity but only fundamental rights
No market participant exception for P&I Clause

Art 4, § 2 P&I Clause — lived on post-Slaughter-House

Under modern era — tremendous overlap between this and dormant CC.

Dormant CC — give tax breaks/opportunities to local ppl is not permissible
Art 4, § 2 restricts much of the same (272-73 reading)

Due Process

Due Process Clause Reads: (14th Amend, § 1)

All persons born or naturalized … nor shall any state deprive any person of life, liberty, or property, without due process of law

Procedural Due Process

Procedural Due Process is NOT about whether the reason is good enough — this is just the process of actually giving that process (forms of conversation)

In comparison to Substantive Due Process (the reason)

There are 2 separate Due Process Clauses — 5th Amendment and 14th Amendment

5th Amendment speaks only to Fed Gov and the 14th speaks also to the states
However, everything here that talks about Due Process is about both of them

Generally due process is the assertion of some kind of hearing (ex ante hearing)

Notice, reason, chance to respond, hearing, etc.

Definition of Property and Liberty Interests

Property Interests

Goldberg v. Kelley — ct held that due process required that a welfare recipient be afforded “an evidentiary hearing before the termination of benefits”

Gov ppl were sad and normal citizens were happy
Ex. principal could be worried teachers might have a property right in their benefits or students w/corporal punishment by requiring hearing 1st
If warden wants to move prisoner from min security to max security

Later cases cut back on the extensions — tighten def. of property & liberty rights

Board of Regents v. Roth — teacher hired on 1 year contract found to have no property right in another year

Liberty = “the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, est. a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”

Perry v. Sindermann — companion to Roth—non-tenured prof had property right = explicit understanding at school about rehiring

May have a contract claim
Person’s interest in a benefit=“property” interest for due process if — rules/mutually explicit understanding that support’s claim of entitlement to benefit that he may invoke at a

rporation is more fact

Under the “new(current)” approach”:

Ascertained the relevant BoR provision and asks:

Is provision essential to “fundamental fairness” such that it should be made applicable to the states?
Still not based on enumerated rights — a question of “fundamental” or not

Duncan v. Louisiana (1968)

14th Amendment guarantees the right to a trial by jury in all criminal cases
Under the Palko–Adamson approach, even if found that a right = “fundamental”, that didn’t mean that all of the detailed interpretations went w/it

Wolf v. Colorado (1949)— “core” of 4th Amend part of guarantee of due process, but specific fed rules (exclusionary rule) ≠ apply to states

After more than a decade, ct changed ruling

Mapp v. Ohio (1961) — That rule was, in fact, essential

Incorporation thereafter meant not just incorporating “core” of BoR, but applying to states every detail

Ct then drew back slightly from that ruling also

Williams v. FL (1970) — 12 person jury ≠ essential to fairness factor from having a jury trial

All criminal process guarantees from BoR are applicable to states, w/exceptions:

3rd Amendment issue of quartering soldiers never been addressed
5th Amendment indictment by grand jury
Right to trial by jury for civil case for more than $20
8th Amendment excessive bail

Some civil also, but not all: (following are ok)

Freedom from est. of religion; rights to free exercise of religion, speech, press, assembly & petition, redress of grievances protected by 1st Amend, firearms and against uncompensated taking by 5th Amend

Substantive Due Process

Substantive = question of adequacy for depriving people of whatever right is being taken away

Asks = Are there unenumerated rights that the states can’t take away from you w/o a really good reason/is it justified?

Substantive Due Process & Economic Liberties

Natural law tradition — even if not spelled out, there are things government can’t do

Calder v. Bull (1798) — Ct rejected attack on Connecticut legislative act setting aside a probate ct decree that refused to approve a will

Majority — even if Constitution says (or not) something is/isn’t ok, Ct should hold that way via ct decisions if it’s a fundamental (natural) right
Dissent — Ct ≠ have more power than Constitution

Build up to Lochner

Munn v. Illinois (1877) — Ct rejected attack on state law regulating rates of grain elevators — while they didn’t throw this law out, signaled in future, w/more private contracts, they might be inclined to
Santa Clara County v. Southern Pac. RR (1886)— corps are “persons” under 14th Amend, so corps can make Due Process claims that gov is making regulations against them
Mugler v. Kansas (1887) — sustained law prohibiting booze, Ct announced prepared to examine substantive reasonableness of state legis
Allgeyer v. LA (1897) — Ct invalidated state law on sub. due process

Liberty interest (right to enter into contract) — ct ≠ believe good enough reason