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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 legislature’s specifically prescribed powers in the constitution
a.       If there really is Congressional power, then that should include the power in Congress to pass bad laws (as well as good laws), and the Court should not be allowed to second-guess that power
b.      Doing so amounts to a substitution of the Court’s judgment for that of the legislature (which is an improper use of Court power) – the Bill of Rights (and specifically the due process clause) provides no more identifiable standards than the concept of natural law does, and the Court cannot simply substitute their judgment in strict Bill of Rights cases
c.       Iredell’s view ultimately prevailed, at least in form
b.      This argument was not picked up by subsequent courts, though, and generally the Court sought to protect economic rights by linking them to specific constitutional provisions (such as the contracts clause)
2.      This view was changed, though, and the Court later held that there must be a sufficient relationship between the statute and an adequate or permissible state interest (Lochner v. NY) [statute limiting the hours of employment for bakery workers unconstitutional; statute interfered with the ‘very important’ right of contract and furthered no adequate or permissible state interests] a.       Lochner symbolized the rise of substantive due process as a protection of economic and property rights
b.      Lochner had brought a 14th Amendment due process clause challenge based on his right to contract
1.      No state shall deprive any person of life, liberty, or property without due process of law
2.      Even though Lochner is a corporation, it qualifies as a person for due process clause purposes
3.      Due process can relate to both procedural and substantive issues – this case is a substantive issue
4.      The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to K in relation to his own labor.
c.       This test – sufficient relationship to adequate state interests – marks the birth of the rational basis test that would later be applied broadly in constitutional law
1.      Court shoots down each of the asserted state interests as insufficient to permit such an invasion of an important right (the right to contract freely)–
a.       Protecting the bargaining power of the bakers
i.                    State cannot step in and pursue this end unless the relationship between the bargainers is so unequal that governmental intervention is required
ii.                  Holmes dissented on this point, arguing that the majority was impermissibly 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
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
2.      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
d.      Lochner today is widely considered to have been wrongly decided (and though never explicitly ruled is really no longer considered to be good law)
1.      Did they draw a distinction between the miners and the bakers because they

ee from government interference
a.       Griswold is thought to fall along these lines, in that the constitution protects individual decision-making in matters of childbearing from unjustified intrusion by the state
b.      Eisenstadt v. Baird, where the Court overturned a statute banning the distribution of contraceptives (rather than the use, as was the issue in Griswold) also identified privacy as having the right to be free from unwarranted governmental intrusion onto matters so fundamental as those involving childbearing
3.      Abortion cases
a.       For the abortion cases, the critical question was going to be whether the Court considered the right to have an abortion to be a fundamental right
1.      In a substantive due process case, the burden of proof is on the individual challenging the law to show that there is no reasonable relationship between the law and some legitimate state interest or that there is no legitimate state interest in the first place
2.      If an interest is fundamental, though, then the burden of proof is on the state to show that the law is necessary to bring about a compelling state interest (i.e. no less restrictive means would suffice)
3.      Liberty interests will always trigger a substantive due process analysis
a.       The key issue in any case where a liberty interest is involved (or where it is being argued that some interest should be treated as a fundamental liberty interest) is the burden of proof and the identification of the interest as fundamental – if an individual can make a successful claim of fundamental interest, then he most likely will win because the state must face a very difficult burden of proof
b.      Abortion rights cases can be considered on at least three levels –
1.      Individual morality and the decision of the woman involved
2.      Appropriate public policy that should be adopted
3.      The extent to which the constitution imposes limits on the kinds of public policy that can be adopted
c.       Ultimately, the Court decided that the right to have an abortion is a fundamental right (Roe v. Wade) [statute prohibiting abortion except in cases where the life of the mother was in danger unconstitutional; abortion falls within the realm of fundamental interests, and the statute challenged could not withstand strict scrutiny] 1.      Court analyzes the question of whether a state’s interests in preserving the woman’s health and preserving the potential fetal life are compelling based on the trimesters of pregnancy
a.       The interest in preserving the woman’s health is compelling only after the end of the 1st trimester
i.                    Mortality for pregnancy in the first trimester is less than the mortality for abortions performed in the 1st trimester (but this is not true in subsequent trimesters), and so it would be healthier for the woman to stay pregnant than to let her get an abortion
ii.                  After the end of the 1st trimester, then the state has an interest in protecting the health of the woman by regulating abortions in such a way as to protect her health should the pregnancy become problematic
b.      The interest in preserving potential fetal life becomes compelling at the time of fetal viability (at 24-28 weeks, or near the end of the 2nd trimester)
i.                    This is not a determination of when life begins (conception or birth), but rather a determination of when the aborted fetus would have been able to survive (at least partially) outside of the womb with artificial support
a.       The Court does not address the question of whether this is the stage where the fetus exists as a human being with moral significance (and different legal consequences)