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

Article IV, Section 2 states: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the Several States.
14th Amendment, Section 1 states: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Privileges and Immunities—a restraint on state efforts to bar out-of-state citizens from access to local resources; protecting citizens against discrimination on the basis of state residency.
Slaughter-House Cases
            This 1883 case took a very narrow reading of the how the 14th Amendment should be interpreted and how it should be applied to the states. The court held that the Civil War Amendments had not been meant to radically expand the power of the Supreme Court to regulate the relationship of the states to their own citizens. Here, the court held that the 14th Amendment governed only those state actions and law which abridged privileges and immunities of “citizens of the United States,” meaning that it did not involve state government regulations of state citizens.
The state of Louisiana passed a law giving a monopoly in slaughtering to a particular company in a particular location, establishing that all butchers must take business to this location. The court found that there was not a violation of the federal privileges and immunities clause when a state legislature made laws governing only state citizens that did not advantage citizens of that state to the disadvantage of other states.
Saenz v. Roe
            This 1999 case appeared to breathe new life into the Privilege and Immunities Clause as useful to protect citizens of a state from the laws of a state legislature. According to the Court, the right to travel is a fundamental right, and one of the dimensions of one’s right to travel is that one has the right as a newly arrived citizen of a state to the same Privileges and Immunities of citizens of the state in which they move to. Here, the court held that the 14th Amendment permits citizens to choose the state that they want to reside in, and such a choice is not subject to laws which abridge their privileges and immunities.
            The state of California, in following Congress’ 1996 Personal Responsibility and Work Opportunity Reconciliation Act, limited welfare benefits receivable by new residents of the state for less than 12 months to that amount which they would have received in their prior state of residence. The court held that neither the duration of a citizen’s residence, nor the state they arrive from matter when giving out welfare benefits to a citizen. Therefore, a state’s interest in saving money does not provide justification for discriminating against equally eligible citizens.
Crandall (1867)—court invalidates a tax on passengers leaving the state on public transportation (recognizes travel)
Edwards (1941)—court invalidates law making it a crime to bring to CA any indigent persons not a resident of CA
Shapiro (1969)—court invalidates state laws making durational residency a requirement to qualify for state benefits
Dunn (1972)—court invalidates state law making durational residency a requirement to qualify for voting rights
Sosna (1975)—court upholds state law making durational residency a requirement to bring a divorce action
Starns (1971)—court upholds state law making durational residency a requirement for university in-state tuition
                WHY—portable benefits, economic rationales, not discouraging or trying to keep out, avoid divorce center
           The more portable the benefits, the greater the state’s power to control, distinguish, and regulate.
5th Amendment states: …nor be deprived of life, liberty, or property, without due process of law.
14th Amendment states: …nor shall any State deprive any person of life, liberty, or property, without due process of law.
Procedural Due Process
            The procedures required when government deprives persons of liberty and property. Certain substantive rights (life, liberty, property) cannot be denied except pursuant to constitutionally adequate procedures. Liberty and property attain constitutional status under the Due Process clause by virtue of the fact that they have been initially recognized and protected by state law; procedural guarantees of the 14th Amendment apply when a state seeks to remove or alter such protected status.
A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit that he may invoke at a hearing. A person’s interest in “liberty” extends to more than just freedom from bodily restraint, but also to the right of an individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish 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.
Procedural due process – what process is the claimant entitled to; doesn’t say anything about the reasons.
Substantive due process – whether the govt. has to provide a reason when they take away life liberty or property; and how good of a reason does it have to be.
            -2 branches
                             1) Rights that are enumerated in the Bill of Rights that the state cannot violate regardless of how much process you get (incorporation doctrine)
                             2) Rights that are not enumerated in the Bill of Rights that the states cannot violate regardless of the process you are given.
Goldberg (1970)—due process requires an evidentiary hearing before the termination of welfare benefits. Welfare benefits are property (entitlement) subject to due process rights.
Roth (1972)—because a non-tenured teacher did not have a property interest in his job, he was not owed any due process, as the job was not a property/entitlement interest. The Roth line of cases established that the Due Process Clause does not protect against deprivation of all government benefits, but only of “entitlements” created by law.
Perry v. Sindermann (1972)—however, a non-tenured teacher does have a property interest in his job when there is past knowledge and evidence of a de facto tenure program at the college, so he was owed due process because the job was a property/entitlement interest.
Town of Castle Rock v. Gonzales (2005)—a citizen of a state does not have an enforceable property interest for purposes of due process in police enforcement of a restraining order. A benefit is not a protected entitlement if government officials may grant or deny it in their discretion. The right to a restraining order is not a property interest and it does not have any ascertainable monetary value.
Paul v. Davis (1976)—a person is not entitled to due process and is not deprived of his right to liberty merely because he is attached with the label of “active shoplifter” and the resulting injury that attaches to his reputation.
Constantineau (1971)—however, a label of “public drunkard” does deprive one of his liberty interest in violation of due process, as it does not pass a Stigma-plus test of harm to reputation and some other harm (inability to buy alcohol)
Matthews v. Eldridge (1976)—if a government has deprived a person of liberty or property, the courts generally will use a balancing approach to determine what constitutional procedural guarantees attach. Must consider three factors:
            1) Private interest—the private interest that will be affected by the official action
            2) Risk of erroneous deprivation through current procedures; and probable value of substitute procedural safeguards.
            3) Government’s interest, including the function involved and the administrative burdens that the additional or substitute procedural requirement would entail.
14th Amendment—incorporating the Bill of Rights guarantees as restraints of the states??
            The majority of the Supreme Court has never accepted the view that the 14th Amendment due process clause “incorporated” all the provisions of the Bill of Rights. Rather, there has been a process of selective incorporation of such rights that the States must follow as well.
The privileges and immunities clause of article 4 covers more rights than the 14th amendment. The privileges and immunities clause of the 14th amendment is interpreted very narrowly in Slaughter-House. However, now the court turns to the due process clause of the 14th amendment to get around the narrow reading of the privileges and immunities clause. All procedural due process rights do is give you the opportunity to be heard—it says nothing about the kinds of substantive reasons the govt. must have before they limit a right.
Twining (1908)—the court stated that some of the personal rights safeguarded by the Bill of Rights against national action may also be safeguarded against state action, because a denial of them would be a denial of due process.
Palko (1937)—court articulates the case of “selective incorporation” on the basis of “fundamental fairness” analysis. TEST: Can justice be done without the right? –Is the right the essence of a scheme of orderly liberty? Is it deeply rooted in our

al. The court deemed this particular legislation unreasonable and arbitrary.
            A strong dissent argued first that this particular legislation clearly did regulate a matter of public health, and was thus a valid use of the state’s police powers. Also, the dissent focused on the fact that a fair and reasonable man would view such legislation as reasonable and proper to protecting the health of citizens and was a legislative majority that embodied such an opinion as law.
            This is the Courts first experience with unenumerated with due process rights. New York passed a law that bakers could not work more than 60 hrs a week or 10 hrs a day. Presumably the people working these long hours want to work that many hours (free market of labor). This law gets struck down as unconstitutional – violates a persons fundamental right to make contracts. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment. This case seems to be a break from the Slaughter-House cases because in Slaughter-House the court did not uphold a right to contract. The Slaugher-House cases were based on the Privileges and Immunities provision not Due Process, but this is a major break from the reasoning of Slaughter-House. In Slaughter-House, the Court said it would not degrade/interfere with the rights of the State, and the Court did not want to hear all of the cases.
            History of Right to Contract: 1) Lochner gets right to contract from Allgeyer; 2) Allgeyer – law required people to buy insurance from a Louisiana company. The Court recognizes that Allgeyer has a right to contract for insurance with a company that is not based in Louisiana. “The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carring out to a successful conclusion the purposes above mentioned.” 3) The preceding quote comes from Justice Bradley’s concurring opinion from a case that was decided in the fall out of Slaughter-House. That concurring opinion says Slaughter-House was incorrectly decided (that justice dissented in Slaughter-House).
            Basically today had the Lochner court decided the Slaughter-House case there would have been a different result. Slaughter-House is still good law for the Privileges and Immunities clause, however, the incorporation of the Bill of Rights and unenumerated rights is done through substantive due process.
            The individual’s right to contract is not absolute, it is limited by the states police power. The states must have a reasonable basis for limiting the right to contract. The test is basically that the law has to be fair and reasonable. The court then concludes that this is not a fair and reasonable restriction.
            Rationales – 1) bakers are so weak in bargaining power that they need legislative help-court doesn’t like it because they say bakers are not uniquely weak or unintelligent; 2) the bakers would be cleaner making for a better/more healthy bread-court says the bread made in the 1st and 10th hours are the same; 3) the nature of the work injures the bakers (standing all day, inhaling flour) – court says that is work, all work has some inherent risks.
            Harlan, White, Day – Agree with majority in that there is a right to contract. However