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Constitutional Law II
University of Iowa School of Law
Buss, William

I.                    Due Process
A.     Incorporation doctrine and due process
1.      Defined
a.      Incorporation refers to the process by which the 14th Amendment’s due process clause has been read to make applicable to state criminal proceedings virtually all of the procedural requirements that govern federal criminal law enforcement as a result of the Bill of Rights
2.      Incorporation can occur via two separate methods –
a.      Selective incorporation
1.      Rights are only selectively applied to the states based upon their status as fundamental rights (Palko v. Connecticut) [state statute permitting prosecution to appeal defendant victories in criminal cases not unconstitutional; even though the statute would have violated the 5th Amendment had it been applied in a federal court, the state had only selectively incorporated the 5th Amendment due process rights] a.       Palko was later overruled by Benton v. Maryland (where the Court held that the 5th Amendment’s double jeopardy guarantee should apply to the states through the 14th Amendment)
b.      Benton was decided at a time where the Court was seeking to apply more and more of the Bill of Rights guarantees to the states through the 14th Amendment (though in doing so the Court never officially abandoned the fundamental fairness standard)
2.      Generally this has been the majority opinion (at least in theory), although over time often total incorporation actually results
3.      Test generally is one of fundamental fairness – enough procedural guarantees are incorporated to assure that the process is fundamentally fair to the defendant
b.      Total incorporation
1.      An entire bloc of rights is incorporated into the 14th Amendment protections against individual state action
2.      Generally this is more a result than a process, as the Supreme Court has determined piecemeal that all of the protection of many Bill of Rights amendments were sufficiently fundamental to require incorporation into the 14th Amendment
B.     Early substantive due process
1.      Prior to the passage of the post-Civil War amendments, the Supreme Court had held that the protections guaranteed by the Bill of Rights controlled only the federal government and did not apply to the individual states (Barron v. Mayor and City Council of Baltimore) [no Fifth Amendment taking of private property where city diverted flow of streams in such a manner as to destroy a citizen’s business] (1833)
a.      Marshall reasoned that the Constitution expressly limited individual state power in several places, and since the Bill of Rights did not expressly refer to the states it followed that the drafters must have intended it to apply only to actions taken by the federal government
b.      5th Amendment had a due process clause identical to that later enacted in the 14th Amendment
1.      Passage of the 14th Amendment renders Barron of historical interest only
2.      In the period immediately following the passage of the Civil War amendments, the Supreme Court construed their applicability to the states very narrowly, holding that in essence they provided only protections in factual situations based upon those which cause the amendments to be passed in the first place (Slaughterhouse Cases)
C.     Substantive due process and economic regulation
1.      Substantive due process as a protection of fundamental economic rights did not receive much support from a majority of the Court until the end of the 19th century
a.      There was an argument, often based in the concept of ‘natural law,’ that these property and economic rights were basic fundamental rights deserving of judicial protection (Calder v. Bull) [state statute allowing rehearing in probate cases not an unconstitutional violation of the prohibition against ex post facto laws; ex post facto clause construed as applying only to criminal cases] 1.      Court actually discussed an example that would fit Lochner – a law that takes property from A and gives it to B is not a power that the citizens will have given to the legislature (and therefore the Court cannot assume that they would have done so)
2.      However, Chase in dicta did discuss the fact that perhaps these economic rights should get some higher form of protection because of their importance in the scheme of natural law
3.      Iredell’s dissent took issue with this natural law view and argued that the Court should not invalidate legislative actions simply because they fall outside of the scope of the legi

imposing its own economic theory on the state
a.       People should be allowed to stand on their own two feet when they want to
b.      He felt that social Darwinism should not prevail that the state should be able to get involved if they thought action to be warranted
i.         The majority is imposing its own view rather than the Constitutional view
c.       For Holmes, the test should be whether a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law (and the statute passed this test in his opinion)
b.      Protecting the health of individual bakers
i.         Majority felt that the legislature erred in finding that bakers are less healthy than other workers (and the current conditions don’t overwork them that much)
ii.       Harlan’s dissent argued that there was sufficient evidence for the legislature to make such a finding and that the Court should defer to the legislature (and that the health interest is a legitimate one)
a.       If there is support that reasonable people think is persuasive, then the Court should respect that whether or not they believe it
c.       Protecting the health of the consumer
i.         Majority feels that there really is no support for the idea that tired bakers will be somehow less likely to observe clean practices (and that doing so will tend to make consumers ill)
d.      Protecting the collective health of bakers
i.         Court feels this is the same basic idea as in (b) and rejects it
Majority does not deny that the health interest is a legitimate one, but only that the health interests here are not strong enough and seem to be used as a pretext to reach the impermissible goal of regulating labor practices