Constitutional Law II – Wiecek, Spring 2013
I. Intro
A. 3 “axes” of Constitutional Law:
1. Federalism – state vs. fed
2. Separation of powers – legislative/executive/judicial
3. Regulatory power vs. individual liberty/rights
a. “Rights”:
i. Constitution protects a particular right.
ii. Government lacks authority.
b. Zero sum game?
i. Libertarianà growth of one diminishes the other.
ii. Prof says noà both my grow at same time.
B. 3 broad topics:
1. Due process
2. equal protection
3. 1st Amendment
a. Speech
b. Religion
i. establishment
ii. free exercise
C. 14th, § 1 – 4 subjects:
1. (1) Citizenship
2. (2) Privileges or immunities
a. Interstate P&I—Art. 4— prohibits states from discriminated b/w citizens of their own states and strangers.
b. Intrastate P&I—14th Amend— prohibit any state from discriminating against its people on basis of some arbitrary criterion, e.g. race.
3. (3) Due process
a. Lockean triad—life/liberty/property
b. Procedural—notice, opportunity to be heard, etc.
c. substantive due process
4. (4) Equal protection
II. Substantive Due Process
A. Overview
1. 14th Amendment DP Clause
2. 3 different subjects in SDP:
a. (1) Incorporation – extent to which limitations of federal Const are limitations on state regulatory power.
b. (2) “Old” SDP (1890-1937) – “First phase of s/d/p.” Economic regulation.
c. (3) “Modern” SDP (1965-Griswold-present) – Individual privacy, autonomy, dignity, association.
B. Origins, Purpose & Content of the 14th Amendment
1. Incorporation – federalism problem. Fed. Const (esp. Bill of Rights) limit states?
a. Constitutional regimes in US (changes in assumptions/interpretations/society):
i. (1) pre-constitutional regime
ii. (2) Ratification (1787-89)—first real Const regime.
iii. (3) Ratification of Bill of Rights (1789-91)—fundamentally changed nature of system.
iv. (4) Reconstruction (1861-1870)—13, 14, 15 Amend.
v. (5) New Deal, Warren court – still working within
b. Barron v. Baltimore – 5th Amend. takings claimà Held Bill of Rights does NOT apply to states.
2. Slaughter-House – Regulate slaughtering by state monopoly (police power), butchers said depriving of trade.
a. First time court construed 14th Amend à J. Miller confirmed we’re in a new const regimeà recognizing limitations on state regulatory power. However, conservative, no profound change.
i. Purpose of Reconstruction amendmentsà protect blacks as move to citizenship (LIMIT EP/DP).
ii. Narrow reading of DP clause of 14th. Initial rejection of SDP!
b. police power—the underlying sovereign power of any gov’t to regulate for the health, safety, welfare or morals of the people.
c. Bradley’s dissent:
i. Lawful employmentà “fundamental right” à deprive w/out DP.
ii. substantive due process—transmutes procedural due process into a guarantee of substance.
iii. “liberty” and “property” encompassing natural right to practice trade, violate 14th.
3. McDonald – Incorporation of 2d Amend. Thomas’ dissent argued P&I of fed citizenship. Plurality—SDP. 8 justices rejected P&I as source of incorp.
a. Thomas attacked rationale of SDP as a “legal fiction,” no guiding principle. This was a dead end.
b. HOWEVER, P&I clause does guarantee some rights. Right to interstate travel. Saenz held that, together, 14th and Article IV guarantee:
i. (1) Right to enter/leave states
ii. (2) Interstate rights – no discrim against out-of-staters
iii. (3) Intrastate rights – right to be treated like any other citizen of that state.
C. Historical substantive due process
1. 2 phases of SDP:
a. (1) Economic SDP (1890-1937) – limited state power to regulate econ activity.
b. (2) Privacy, etc. à came back 1965 in Griswold.
2. Extra-constitutional rights?
a. Most of Bill of Rights has been incorporated against states. Source of incorp:
i. DP Clause
ii. P&I Clause (worked for interstate migration, but NOT for 2d Amend.)
b. Tribe article (what is the basis of our legal order? Tribe thinks we can reach beyond Const. CL and society)
i. Law must constrain arbitrary power (Magna Carta as foundational constitutional document.)
ii. Concept of “higher” law. 2 avatars:
1. Law of Godà divinity giving us “law”
2. Law of Reasonà Jeffersonian, “deeply embedded” in American thought.
iii. Calder – 3 principles that limit gov’t power
1. Social compact
2. Natural law
3. Nature of republican gov’t.
3. “Rise and fall of econ SDP”
a. Calder v. Bull (1798)—Chase recognized inherent rights (natural law / repub gov’t / social compact).
i. H/e, Marshall court rejected this later, said rights must be found in Const.
b. Milwaukee Railroad (1890) – Held for 1st time that DP Clause is limit on state regulatory power. Combined Chase’s natural law theory w/ Marshall’s insistence on text of Const.
i. Takings by setting ratesà The violation of process leads to the violation of a substantive inherent right = SDP!
c. Allgeyer (1897) – SDPà liberty of contract (no insurance Ks w/ corps not licensed in La.).
d. Lochner v. NY (1905) – Peckham’s comprehensive theory of SDP.
i. SDP & liberty of K = limitation on state regulatory power. Econ. rights as basic rights.
1. “Extraordinary claim of judic. power”—Court took upon itself role to pass judgment on legislature’s social/econ policy.
ii. Held law was an unreasonable interference with bakers’ employment contracts. Could only regulate under valid exercise of police power, and this was not.
iii. Holmes’ dissent—disagrees on role of court. Says Const. shouldn’t embody laissez faire capitalism or any other social/econ theory (leg. job). Must look to rational person’s understanding of American traditions and fund. principles to see if liberty has been violated.
iv. Harlan’s dissent—emphasized judicial deference.
e. Post-Lochner – period of “doctrinal instability”
i. Lochner and immediately after = high point of SDP.
ii. After, no clear/consistent results in courts. E.g., upheld some wages/hours restrictions (dangerous occupations / women).
4. Decline and fall of SDP – turmoil in mid 30s. Court didn’t select any line of precedent, but rather decide SDP was incoherent.
a. Nebbia v. NY (1934) – upheld state subsidy of dairy. Broad language indicating death of Lochner.
i. Neither property rights or contract rights are absolute. Gov’t may regulate in the common interest.
ii. DP test—“reasonable relation to a proper legislative purpose” & neither arbitrary nor discriminatory.
1. Ends proper.
2. Means bear a reasonable relationship to those ends.
b. West Coast Hotel (1937) – overruled Adkins (women min wage laws), and with this, overruled Lochner. No absolute liberty to contract.
c. Post-West Coast Hotelà SCOTUS outright rejects idea of SDP. Judicial deference to legislatures.
i. Williamson v. Lee Optical (1937)
ii. Ferguson – “we refuse to sit as a super-legislature”
Review:
· Origin & content of s/d/p (1890à)
· Underlying ideas
o Earliest national jurisprudence of US
o middle ages (Magna Carta)
o American law:
§ Higher or natural law over positive law
§ Social compact (and its limitations on gov’t power)
§ Limitations on leg. power inherent in republican form of gov’t.
o Unwritten limits on gov’t power didn’t gain traction for almost a century:
§ 1890 – transmuted procedural limitation into subst.
§ New “avatar” – liberty of K. Extended to employment Ks in Lochner.
§ Implications from written text of Const – ideas of a higher law
· Post-Lochner
o 1890-1937 – econ. s/d/p; became flawed, doctrinal instability (conflicting precedent).
§ wage regulations; women vs. men (different results)
o 1937 – West Coast Hotel – Const. doesn’t recognize idea of liberty of K – END OF S/D/P
§ subsequent cases confirmed. Ct not going to overrule state economic regulation.
o no Const. freedom of K = no econ s/d/p? à NO
§ Carolene Products
5. Carolene Products (1938) – upheld regulation on rational basis review. BUT, double standard of reviewà deference wouldn’t extend to certain areas (FN 4):
a. FN 4—hint that court will redirect activist energies in 3 new directions:
i. (1) Civil liberties (setting agenda for court for rest of century);
ii. (2) Legislation that restricts political processes (mostly aimed at race); and
iii. (3) Statutes directed at discrete insular minorities (civil rights agenda to come).
b. “Anticipation of the Warren Court agenda.” Modern period of s/d/p. Away from pre (econ) and towards civil liberties (’65à)
D. Takings: property and contract
1. Fifth Amendment – 5 things (pups metaphor)
a. Serious crimes – grand jury
b. double jeopardy
c. guarantee against self-incrimination
d. DP clause
e. Takings Clause (first of Bill of Rights to be incorp. against states)
i. “Sibling” to DP clause (reviewing way state regulates econ relationships).
2. Takings – if gov’t is going to take private property, under constraints of Calder (no from A to B), gov’t may take as long as it meets 2 conditions:
a. (1) For a public purpose; and
b. (2) Gov’t pays just compensation.
3. 2 kinds:
a. Physical takings (eminent domain). 2 consequences:
g.
ii. Lucas (1992) – taking if reg denies “all economically beneficial and productive use of land” (Prof note, rule ambiguous—what’s “all”; what’s “economically productive”?).
1. UNLESS similar restriction when acquired land
iii. Nollan-Dolan double nexus test:
1. Rational relationship b/w means (e.g., building permit) & gov’t purpose (Nollan).
2. “Rough proportionality” b/w public benefit and burden on landowner (Dolan).
e. Tahoe-Sierra (2002) – development plan to stop runoff into Lake Tahoe. This case resolved dichotomy of approaches to regulatory takings issues.
i. Stevens drew line:
1. Physical taking – rules approach
2. Regulatory taking – standards approach– ad hoc inquiries; emphasis on justice/fairness; balance interests of parties; fact-specific…
ii. Prof says maybe too “neat” a resolution?
6. Contracts Clause (Art. I § 10) – third Const. source for limiting state regulatory power. Prohibits state “law impairing the obligation of contracts.”
a. Most significant “source” before DP clause. “Dormant” currently.
b. Home Building and Loan Ass’n (1934) – statute imposed moratorium on foreclosures.
i. Court held did NOT violate Cont. Cl. 3 doctrinal points:
1. substance vs. remedy – state may not change substantive terms of contract, BUT, as source of K law, may change remedies.
2. Gov’t may interfere with K if valid purpose. Police power source of this (10th amnd.).
3. J. Hughes dealt a blow to originalist argument (i.e., would be obsolete/inapplicable)
E. Modern SDP: privacy, autonomy, and reproductive rights
1. Intro – How did we get here?
a. Lochner (1905) – became synonymous w/ inappropriate judicial interference w/ leg.
i. Liberty of Kà does this extend to other areas?
ii. What kind of end/means test? Purpose?
b. Lochner Era court recognized noneconomic dimension of SDP in dicta:
i. Meyer (1923) – regulating German in private school struck down.
ii. Pierce (1928) – state trying to abolish Catholic education.
c. Skinner (1942) affirmed thisà fundamental right (non-textual) of marriage/procreation.
d. Carolene Products (1938) FN 4
2. Griswold v. Connecticut (1965) – Planned Parenthood challenged law prohibiting contraceptives, family planning advice.
a. Issue – liberties recognized in Pierce/Meyer – procreation, familial rights.
b. Douglas majority:
i. (1) Douglas began opinion by repudiating Lochner (court not “super-legislature”).
ii. (2) emphasize significance of Pierce and Meyer.
iii. (3) identifies privacy as primary right here.
1. “Literary” technique (“penumbras, emanations”) – Prof says weak.
2. Right of privacy in the penumbra of the Bill of Rights.
iv. (4) identified 5 places in Const that might serve as basis for this right.
1. 1st Amendment: association
2. 3rd Amendment: quartering of troops
3. 4th Amendment: search and seizure
4. 5th Amendment: D/P clause
5. 9th Amendment: unenumerated rights.
