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

CON LAW II
The Privileges and Immunities Clauses
–          Such a clause exists in both Article IV, Section 2 and in the Fourteenth Amendment (the Fourteenth Amendment was added to the Constitution later on to help put an end to black codes that states adopted after slavery was abolished by the 13th Amendment).
o        The clauses do not specify exactly what these privileges and immunities (rights) include.
–          The distinction between the two clauses turns on the language – what it means to be a citizen of a state and a citizen of the United States.
–          States Rights: Article IV, Section 2 = “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
o        The Constitution does not control the power of the state governments over the rights of their own citizens except to require that a state grant equal rights to its own citizens and citizens of other states within its jurisdiction. 
§         Any right put under Article IV can be taken away entirely by a state, so long as that state does not treat outside citizens any differently than its own citizens.
o        Article IV covers the larger group of rights.
–          Federal Rights: 14th Amendment – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
o        The Privileges and Immunities Clause of the 14th Amendment only protects those privileges and immunities (rights) that you hold as a citizen of the US. 
§         These include the privileges and immunities (rights) that arise out of the relationship of the individual and the national government.
o        This clause only prohibits the states from interfering with certain privileges of national citizenship.
§         Slaughterhouse Case – right to gainful employment is not one of these rights
§         Such rights include the right to come to the seat of government to assert any claim one may have upon that government, to transact any business with the government, to seek the governments protection, the right of free access to its seaports, to courts of justice in the several States, the right to demand the care and protection of the Federal Government over life, liberty , and property when on the high seas or within the jurisdiction of a foreign government, the right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, the right to use the navigable waterways of the US, and all rights secured by the citizens by treaties with foreign nations.
§         The Bill of Rights initially constrained national, but not state, government action. However, after the adoption of the 14th Amendment, many people thought the states also had to allow the people the protections of the 14th Amendment through the Privileges and Immunities Clause. The Slaughterhouse Cases said otherwise.
o        The Privileges and Immunities Clause of the 14th Amendment has basically been made a nullity by The Slaughterhouse Case. The rights the Court finds are provided already exist as federal rights which the states could not interfere with anyway because of the Supremacy Clause.
o        One such exception to this came in the Saenz v. Roe case which pertained to the right to travel, which is a core fundamental right.
§         3 Components of the Right to Travel:
·         1) The right of a citizen of one state to enter and leave another state (right to come and go) with a state impeding such right by statute. With respect to being a national citizen, there are no boundaries.
o        Crandall – Nevada charged $1 to anyone leaving the state using public transportation; the SC struck down the law as unconstitutional because by such tax, we are starving the national government of citizens who may go there to do business; a lot of this reasoning came from McCulloch which determined it was unconstitutional for a state to tax the federal government.
o        Edwards – invalidated a state anti-Okie law which made it a misdemeanor to bring an indigent person into the state as that impeded the free interstate passage of the indigent
·         2) The right of a visitor to be treated the same as a citizen of the state is treated; Article 4 Privileges and Immunities Clause.
o        Eg. Out-of-staters aren’t charged higher tolls to use a state’s roads
o        Note: This is not an absolute right. Discrimination can take place if the discrimination is closely or substantially related to a substantial state purpose (could the state have avoided some of the discrimination by using less restrictive means?)
§         Though saving money isn’t a good way to meet the test in (3) below; when treating visitors less favorably, money is a more powerful explanation.
§         It has been held to be constitutional for a state to charge nonresidents a higher licensing fee to hunt.
·         3) Everyone has a right to travel to a new state and set up his citizenship there without a state impeding such right by legislation.
o        Shapiro – struck down legislation giving no welfare benefits until in the state for one year as unconstitutional under the Equal Protection Clause by saying it violated the fundamental right to travel and when a state wants to distinguish between people, it gets strict scrutiny.
o        Saenz v. Roe – held it was unconstitutional under the Privileges and Immunities Clause of the 14th Amendment to require one to stay in CA for a year before get CA welfare benefits and until such time you get the benefits as you would have gotten in the prior place you lived. CA simply did this to save $10.9 million a year, and this wasn’t a good enough reason as it could have also done it by slightly reducing everyone in the state’s benefits. 
o        This is not an absolute right. Discrimination can take place if the discrimination is closely or substantially related to a substantial state purpose (could the state have avoided some of the discrimination by using less restrictive means?) Basically just need a really, really good reason. 
§         In-state tuition and the right to get a divorce can distinguish between citizens based on how long they’ve lived in the state. The reason is that individuals can disingenuously say they’re a citizen and leave with the benefits once they’ve received them. It seems to be, the more portable the benefit, the more the states can control. 
§         This is not true of welfare; generally someone won’t come in, get the benefit, and leave. 
§         Also, saving money rarely meets this test, as seen in the case above.
 
Due Process
Procedural Due Process
–          5th Amendment – “No person shall…be deprived of life, liberty, or property, without due process of law…” (this restrains the federal government)
–          14th Amendment – “…nor shall any State deprive any person of life, liberty, or property, without due process of law…” (this restrains the state governments)
–          Basically, before the governments deprive any person of life, liberty, or property, process is due (Procedural Due Process)
o        Property is more than simple ownership of realty, personal property, and money; it also includes “entitlements” (which include interests that are already acquired through local, state, or federal law in specific benefits). The person must have a legitimate claim to the interest at stake.
o        Liberty basically encompasses all instinctive rights (broad); it basically includes those privileges long recognized as essential to the happiness of free people (right to establish home, contract, etc.)
–          2 Part Test: (1) has a liberty or property interest been impaired? and if so, (2) what process is due?
–          PROPERTY
–          Goldberg – If government wants to take away welfare benefits, which individuals are statutorily entitled to under state law (Government Entitlements = property), it has to give you an evidentiary hearing before the termination of such benefits. 
o        The reason it must be before is because if we took such benefits away, we would be taking away the very benefits with which these individuals may be using to live without any process. The individual must be given notice and have a chance to be heard before government could terminate such benefits (this would fit under part 2 of the test = what process is due).
–          The issue with the above decision is that such process is time consuming and costs money. Lower courts began extending this holding and required Goldberg hearings before taking away a driver’s license or suspending one from school. 
o        This was dealt with by scaling back on the nature of process required (maybe only notice and a statement of reason rather than a full-blown hearing). 
–          Roth and Perry – Both cases included essentially the same fact pattern but came out differently. Each involved a nontenured professor at a public institution who was not rehired at the end of a one year K. There was nothing in either K which said they would be rehired in the future if they did a good job. However, each professor thinks he is owed a hearing before being fired. The professor in Roth losses and gets no hearing because he had no basis for his continued employment. The professor in Perry wins because in that case there was an unformalized understanding about the professor’s continued employment; in the faculty manual it stated that the university wants all instructors to feel that they will have a job with the university as long as they don’t take part in egregious conduct. Thus, the professor was owed process before such property interest was taken away as he made enough of an argument to show that he had a property right in this job (though the case doesn’t have to be proved on the merits at that stage). 
–          Town of Castle Rock – Some children were killed by their father despite a restraining order against him. The mom files suit saying either she or her deceased children lost a property interest in the restraining order’s enforcement without due process of law. SC held one has no property interest in the enforcement of laws by law enforcement officers because such officers can’t possible catch everything, but rather discretion must be used in determining how to allocate limited resources.
o        Taking away law enforcement has no monetary value; however, a dollar value can be placed through the taking away of a job or education based upon the value of the degree or future earnings.
–          LIBERTY
–          The broader liberty is, the less the states can take away from you under Article 4.
–          Paul – held you don’t have a liberty interest in your reputation alone; when police put one’s name and photo on a flyer and gave it to all local businesses indicating such person was a known shoplifter such individual wasn’t deprived of liberty without due process of law. 
o        If one’s reputation is being ruined by a public official, you need to prove something in addition (denial of a tangible interest) to harm to your reputation (stigma plus – as the lower courts put it) before you have a liberty interest which requires due process.
§         Eg. Putting someone on a child abuse list and taking away custody requires due process.
§         Eg. Giving flyers to a liquor store saying don’t sell this person alcohol because this person is a problematic drinker requires due process (Constantineau).
–          How Much Process Do You Get? (need to know this once we assume there’s a protected life, liberty or process interest – the above cases just noted that there was either a property interest or a liberty interest)
o        Matthews gave us a balancing test = weigh these three things to determine how much process is necessary: (1) individual interest (how big is this in this person’s life?), (2) government interest (what is the government trying to accomplish? – likely some sort of fiscal and administrative efficiency), and (3) how much process has already been given and what likely value is there in giving more process?
o        Possibilities in process owed:
§         (1) Notice of the Issue (before or after?), (2) Statement of Reasons (usually included with notice), (3) Informal chance to speak (plead your case), (4) more of a formal hearing – which includes an opportunity to present evidence, cross examine government’s evidence and is hopefully with an unbiased decisionmaker, (5) opportunity to appeal decision?
–          Analysis: (1) determine whether the person had a legitimate claim to the interest at stake (aka: a property or liberty interest); (2) did the government (a public official) directly deprive the person of his interest?; (3) If so, we need to determine the timing and scope of the process due (notice and a statement of the reasons are almost always due, and also a hearing could be possible either before or after the deprivation) by balance the three factors.
 
Substantive Due Process – Generally
–          Note: all the process rights above do is give you something, such as

in Muller.
–          Nebbia – this is the case in which Lockner is essentially overturned and the court adopts a policy of extreme judicial deference with regard to economic regulation. A law was passed saying stores couldn’t sell milk for less than 9 cents a quart; the purpose was to increase the prices paid to dairy farmers as they were struggling. The S. Ct. upheld the law as a proper use of the state’s police power to protect public welfare.
o        Test: The guaranty of due process demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. Basically, there simply has to be a rationale relation between the means chosen to get to the end. 
§         In this case, the Court said a legislature could have rationally determined that by increasing prices in the stores, that increase could ultimately trickle back and provide increased profits to the farmer. 
§         With this test, the Court is no longer second guessing the legislature. The Court is no longer asking if the law is fair and appropriate, which Lockner required. That seems to be where the substitution of the Court’s judgment came in. 
o        West Coast Hotel Co. – S. Ct. upheld a state minimum wage law for women, which it had previously struck down. The Court admits freedom of K is a part of liberty of the Due Process Clause of the 14th Amendment. However, the right you get is not much. 
§         Liberty under the Constitution is necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. Thus, today if you want to challenge economic regulation, you must show the legislation is not rationale in relation to the end sought to be attained.
o        Carolene Products Co. – There’s a presumption that any legislation is rationale in relation to the end sought to be attained. If one wants to challenge economic regulation, such presumption can only be rebutted by a challenger showing there are no facts that conceivably could justify the legislature’s decision to pass this law to attain the ends sought. 
§         Any conceivable facts work; government attorneys are not limited to actual rationales used by the legislatures in passing such laws, but can also use possible rationales.
§         Not one government attorney has failed to show the legislation was rational in relation to the end sought to be attained. Rational is not a very high hurdle.
Substantive Due Process – Noneconomic Rights
–          Though the S. Ct. said substantive due process (moving beyond the text and attaching substantive meaning, especially to the word liberty) was dead, and the courts would no longer act like super legislatures by striking down laws (namely those they didn’t think were wise or desirable), the court only said so with regard to economic legislation, not noneconomic legislation. However, during the Lochner era, the Court occasionally extended substantive Due Process rights in cases not involving economic interests.
–          Meyer – stated liberty includes the right to teach and learn a foreign language (German). The law materially interfered with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their children.
–          Pierce – stated liberty includes the right to control the upbringing of one’s kids, which includes choosing whether to send them to public or private schools.
–          Griswold – There was a law stating one couldn’t use or assist another in using anything for the purpose of preventing conception. The Connecticut legislature was going after sexual promiscuity in this case and suggested this law would help prevent affairs because people would know without such protection a pregnancy could happen. S. Ct. held the law was unconstitutional.
o        Majority adopts a “Prenumbra Approach” which essentially means the specific guarantees in the Bill of Rights (1st, 3rd, 4th, and 5th Am) have “prenumbras,” formed by emanations from those guarantees that help give them life and substance. Around those rights is a hazy right to privacy which the Court says includes the right of married persons to use contraception; since this case denied married people the right to use contraception it was too broadly sweeping (S. Ct. adopts a strict approach with respect to right to privacy and a close fit between the end sought and means chosen is required); the law simply should have criminalized adultery.
§         The majority refused to place the right within the 9th Amendment, which basically does nothing today.
§         Majority said this is not Lockner, and that the Court does not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions, though seems to simultaneously reserve this right at least when it comes to values and social concerns. There is also an economic and noneconomic distinction. 
Basically, this “Prenumbra Approach” was only used because the Court wanted