Select Page

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

I. INTRODUCTION
A. Interpretation of the text of the Constitution
1. Ways of Interpretation of Text
a. Discover the meaning in a text
b. Assigning meaning to text (i.e.: poem – assigning own meaning)
2. Constitution has characteristics of both
a. Resembles a contract – give legitimacy to constitutional questions
i. I.e.: Judicial Supremacy = when the court makes a decision, they have the last word
b. Resembles a poem – text does lay out all the legal rules we need to answer the constitutional question
i. i.e.: freedom of speech text, “cannot abridge the freedom of speech”, does not give all the legal premises to address the issue of whether the government can ban profanity on TV
3. Judges: exercises judgments and act as an umpire – Constitution leaves a lot of meaning to be assigned
a. Policy question – are justices interpreting the Constitution based on what they want or legitimately interpreting Constitution – what constrains them?
B. Traditional Ways of Constitutional Interpretations
1. Precedence and Stare Decisis – what have the courts said in the past and the doctrine that says that courts need to follow their rules in previous cases
a. This is the method that we are most attached to as students. Problem: it begs the question of how to interpret the constitution b/c it relies on another’s interpretation of an issue of first impression
2. Plain Meaning of Text – using the meanings of terms in text
a. Problem: the plain text often doesn’t get us far in interpreting text; terms change throughout time
3. Framers’ Intent – what did the framers of the Constitution intend
a. Problem: what is it that gave those dead people the right to bind us; how do we know what they intended; what happens if there were disagreements in the framers in what their intent was (there were hundreds of them); what about issues framers didn’t anticipate
4. Objective Meaning of the Text – whatever an objective reader would have said the text meant at the time it was ratified – it gives us objectivity
a. Problem: we’re asking what a person who never existed intended
5. Stick To the Original Understood Principles of the text, but ignore the originally expected application of the text – attractive to interpreters because it’s original
a. i.e.: racial desegregation of public schools – using 14th Amendment
b. Look to the principles of the constitution, equality, and see how they would apply to our society today – although we are still stuck with the fact that 9 SC Justices are telling us what our principles are today
c. Problem: how do we then justify judicial supremacy; why should the politically unaccounted judges should be the ones to say what and how the principles applied?; why shouldn’t there be a legislative supremacy
II. THE PRIVILEGES AND IMMUNITIES CLAUSE
A. Article IV § 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
1. Power to state
2. Art. IV has a close relationship with the Dormant Commerce Clause
3. Protects citizens from the federal government limiting the fundamental rights delineated in the Bill of Rights
4. Rule: The P&I clause limits the ability of a state or a local government to discriminate against out-of-staters with regards to their constitutional rights or their ability to earn a livelihood (important economic activities)
a. Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest
b. Discrimination against citizens of other states is a prerequisite for application of the P&I clause (corps and aliens not applicable)
c. If there is neither a discrimination with regard to constitutional rights or economic activities, then not a violation of P&I
5. Article IV Test: When a challenge is brought under the privileges and immunities clause, there are two questions:
a. has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens?
b. If there is such a discrimination, is there a sufficient justification for the discrimination?
B. Fourteenth Amendment § 1 Sentence 2 Clause 2: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US”
1. Power to federal government
2. When the Bill of Rights was put into the Constitution, it was widely believed and held by the Supreme Court that the Bill of Rights:
a. Only applied to the federal government and did not restrain state and local governments
b. Only protected the rights of US citizens
3. The 14th Amendment was enacted shortly after the Black Codes were implemented by the states in response to the 13th Amendment’s ban on slavery
a. Black Codes were state laws that put blacks in a sub-citizen status
4. Reverses Dredd Scott with language “all persons born or naturalized in the United States” – trying to take political account of the South/slavery
5. Barron v. Mayor and City Council of Baltimore – stands for the concept that the Bill of Rights did nothing to constrain the states
C. Slaughter-House Case (1873) – Interpreted the Privileges and Immunities Clause
1. Facts: Louisiana government established a butcher monopoly where only licensed butchers could go to operate their business. Non-monopoly butchers filed suit because they essentially couldn’t butcher anymore
2. They argue that:
a. The law denied them equal protection of the law – equal protection clause
b. They had constitutional right to pursue their livelihood: in due process clause somewhere (14th Amendment) and this is one of their privileges and immunities
3. Court gave a narrow reading P&I of the Fourteenth Amendment
4. Issue turns on distinction between what it means to be a citizen of a state and what it means to be a citizen of the United States
5. Court says there’s a difference between the P&I clause of Article IV and the 14th Amendment
a. Article IV – interpreted to be a restraint on the federal government regulating “fundamental rights” as enumerated in the Bill of Rights
i. Deals with rights you have as a state citizen – covers the larger group of rights compared to the 14th Amendment
ii. This P&I did not profess to control the power of the State government over the rights of their own citizens – “states can do whatever they want, as long as they treat citizens and non-citizens alike”
(a) States decide what protections to give to citizens. If you want more rights, then go to the states, not fed govt
b. 14th Amendment – interpreted as being mutually exclusive from Article IV’s P&I
i. Deals with rights you have as a national citizen
ii. Court didn’t think that the intent of Congress was to transfer to the federal government the State’s ability to regulate all the rights of the State’s citizens
(a) Clause 1 distinguishes between the citizens of the state and the citizens of the U.S.
(b) P&I clause, then, refers only to the citizens of the U.S.
iii. In Article IV, you are given rights as a state citizen, and in the 14th Amendment, you are given rights as a U.S. citizen
iv. These 2 categories are mutually exclusive and separate
v. The rights protected under the 14th’s P&I clause are few – those rights you hold as federal rights as a federal citizen that states can’t withhold from you:
(a) Freedom to travel
(b) Rights to sea courts
6. Significance of this case:
a. Basically nullified the P&I of the 14th Amendment because the court held that the P&I of the 14th Amendment only contain rights that were already mentioned in other amendments
b. 14th Amendment provide little protection – if it’s seen to only be giving rights that are federal rights, with the Supremacy Clause, those rights are already guaranteed and protected
c. if you have a right and you don’t want the state to take it away
7. Result: LA law is upheld – butchers can only do business at the monopolized slaughter house
D. The idea that P&I of the 14th Amendment gave no extra right changed in 1999 in Saenz v. Roe for the rights to travel
E. Right to Travel – the P&I Clause has granted a right to travel
1. Rule: Can’t deter interstate travel or discriminate against citizens of other states
2. History
a. Crandall v. Nevada (1867) – Court struck down NE law that charged a tax for using public transportation to leave the state. Challenged based a commerce clause claim and not under a 14th Amendment claim. This case gets us started to thinking about the rights to travel.
b. Edwards v. California (1941) – Court struck down anti-Okie law that made it a misdemeanor to bring into CA “any indigent person who is not a resident of the state”. ∏ got his brother in TX and came into CA, and after awhile, the brother applied for welfare. This case was based on a dormant commerce clause claim, but the concurring opinion focused on the P&I by citing Crandall stating that there’s a constitutional right to travel and it’s rooted in what it means to be a citizen of a nation.
c. Shapiro v. Thompson(1969) – line of cases – focused on the Equal Protection Clause, not P&I – law struck down as being unconstitutional.
i. Law denied welfare benefits to people who h

speak
5. Procedural DP – when you’re not happy with how the law has been implement to you
6. Substantive DP – what you use when you are challenging the justification for a law
B. Procedural Due Process
1. Procedural Due Process refers to processes are you owed when the state takes away a life, liberty, or property interest
a. Issues under procedural DP are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action
2. Threshold issue: whether a preexisting right to liberty or property exist
3. Property Interest
a. To have a property interest for DP purposes, the state must give you a property interest (entitlement) through:
i. Statute:
(a) Goldberg v. Kelly(1970) – seminal case that launches the due process possibilities
(1) Statute existed that gives welfare benefits; if the government wants to take that benefit away, this court holds that due process must be given to you before taking away the benefit and it must be in the form of an evidentiary hearing
(2) This case held that welfare is a property right – broadening the perception of what a property is. Because welfare is so important, you’re going to get a lot of process and before it’s taken from you
(b) Post-Goldberg: this case was interpreted by some to mean that gov’t must provide a lot of process before deformation of government services. Became overly burdensome to give hearings to every case. To avoid these obligations of DP, government could be encouraged to:
(1) Narrowly define the understanding of what liberty and property means
(2) Change the notion on the amount of procedure that is owed
(3) Change and scale back on what the process is owed – instead of before, but after
ii. If there’s no statute giving the property interest, look for an understanding or pattern that might give you a reasonable expectation
(a) Perry v. Sindermann – nontenured professor was told in employee handbook that he should feel as though he has permanent tenure at public institution, and K not renewed
(1) Court holds that ∏ does have due process rights
(2) Unwritten de facto contract that he would be hired again – de facto tenure – implied contract à created an expectation of future employment
(b) compare Board of Regents v. Roth – professor was on a yearly K, and at the end of the year his K was not renewed
(1) Court holds that ∏ does not have due process rights
(2) ∏ couldn’t show he had an expectation of future employment
b. The Roth line of cases established that the DP clause does not protect against deprivation of all government benefits, but only of “entitlements” created by state law
i. When law leaves discretion on the state actor, a property right does not exist
(a) Town of Castle Rock v. Gonzales(2005) – citizens do not have a property interest in enforcing a restraining order when that is left to the discretion of law enforcement in how to allocate their time and resources. A property interest exists only if there is an entitlement and an entitlement does not exist if the government has discretion as to whether to provide a benefit. There is no monetary value.
4. Liberty Interest
a. Courts use the word liberty to secure us rights that the P&I clause didn’t give us
b. The definition of liberty from the Roth case provided broad rights
c. Stigma Plus Doctrine – your reputation has been stigmatized plus something else has happened
i. Paul v. Davis (1976) – flyers were posted of with a photo of ∏ stating he’s a known shoplifter. ∏ claims that he has a liberty right to his reputation and he is owed due process before flyers go out.
Court holds that reputation alone was not a constitutionally