Constitutional Law II Outline
Douglas, Spring 2015
I. Overview of the Course
¨ This class is focused on Individual Liberties.
¨ Where do Individual Liberties come from?
§ The Bill of Rights (the first ten amendments of the Constitution)
§ Other Constitutional amendments besides the Bill of Rights
§ Some provisions of the Constitution itself, but mostly the amendments.
¨ Bill of Rights Civil Liberties:
1. Amendment I – Freedom of Speech, Press, Religion
2. Amendment II – Right to Bear Arms/Own Guns
3. Amendment III – Can’t be forced to quarter soldiers
4. Amendment IV – Right against unreasonable search & seizure
5. Amendment V – The government can’t take your property without Just Compensation AND the Due Process Clause
6. Amendment VII – Jury Trial right preserved for certain Civil Cases
¨ Other Amendment Civil Liberties:
7. Amendment XIII – Bans Slavery
8. Amendment XIV – Equal Protection/ Due Process Applies to the states
9. Amendment XV – No vote ban on race
10. Amendment XIX – No vote ban based on gender
11. Amendment XXVI – Voting age = 18.
¨ Guiding Principles to consider throughout reading cases as well as the course as a whole:
A. Who and what actors do the legal “limits” apply to?
§ Have to decide at the outset if we’re dealing with federal government, state government, or both.
v Barron: A city diverts streams, which ends up having the effect of killing Plaintiff’s wharfs. The Plaintiff argues that the city took his property without paying him for it, therefore violating Amendment V.
X Issue: Does the 5th Amendment apply to the federal government, state government, or BOTH?
X Answer: The federal government.
X Reasons:
1. Looking at the conventional records/meetings, the drafters were worried about the federal government taking people’s property, NOT the state governments.
2. State Constitutions are what are used to cover/address state citizen rights and liberties.
3. Textual reading à The 5th amendment doesn’t expressly say that it applies to state governments.
v Slaughterhouse Cases: The city of New Orleans gives one company a Monopoly over slaughterhouses. Meat entrepreneurs (Plaintiffs) had to go to a specific company in order to engage in slaughtering. The Plaintiff argues that this is a violation of the 13th amendment, in that it is “enslaving” them to the monopoly company. They also argue that they took their jobs, “property”, without compensation – 14th amendment.
X Court: The 13th amendment was about actual slavery; this is NOT supposed to be used to protect the situation at hand in this case.
X Court: Privileges OR Immunities = 14th amendment; Privileges AND Immunities = Article 4.
X Court: The 14th Amendment was created to protect newly freed slaves. It wasn’t trying to limit the power of the state government to regulate ts state. This would be a massive expansion of what the 14th amendment was created to do.
X Court holds that State and Federal Government can’t abridge citizens rights “to go to the capital and use offices, to use the national seaports, etc.” THAT’S what the Court says the 14th Amendment was intended For.
§ This doesn’t provide much protection at all!
X This case basically killed the Privileges Or immunities Clause, BUT it opened the door to expansion of Due Process and Equal Protection.
II. Incorporation
¨ The Doctrine of Incorporation: Parts of the Constitution incorporate other parts of the Constitution, thereby making it applicable to the states as well.
¨ The Due Process Clause of the 14th Amendment INCORPORATES the Bill of Rights, with the key word being LIBERTY!
§ Note: The 14th Amendment has two relevant and distinct parts, BOTH OF WHICH BIND THE STATES, NOT THE FEDERAL GOVERNMENT:
1. The Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”
2. The Due Process Clause: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .”
¨ Note: The Baltimore case says that the text of the Bill of Rights DOESN’T apply to the states.
¨ Note: The Civil Rights Act binds PRIVATE CITIZENS!
¨ How do we decide if something is a fundamental principle and SHOULD be incorporated?
§ Historical use
§ Whether it was in the common law
¨ There are two approaches/theories about incorporation:
§ Total Incorporation: All of the Bill of Rights are incorporated.
§ Selective Incorporation: Decide on a case-by-case basis what rights are incorporated. This is a “pro-state power” approach.
§ Selective incorporation won out as a practical matter, BUT most of the rights have been incorporated.
v Duncan v. Lousiana: A guy is charged with battery, is denied a jury trial under state law. He argues that the 6th amendment (criminal right to jury trial) should be incorporated through the 14th amendment.
X COURT: It is incorporated, because it IS a fundamental right to the American system – it protects against the oppressive power of government in the trial setting.
v McDonald v. City of Chicago: Argument over whether the 2nd amendment right should be incorporated.
X Plaintiff argues it is fundamental because historically it was a preserved right, self defense is a precious right, etc.
X Defense includes international law argument – the fact that other civilized societies don’t have guns shows that owning a gun isn’t a “fundamental right”.
X Court: NO – we don’t care about international law.
X Justice Thomas’s Opinion: Privileges or Immunities argument. The Privileges or Immunities Clause IS the Bill of Rights. This is very different than the concurrence in McDonald. This is a much narrower interpretation of what should be extended to the citizens of states.
X Justice Steven’s Dissent: Makes essentially a policy argument against guns.
III. The State Action Doctrine
¨ The State Action Doctrine essentially says that only the federal or state government can violated a Constitutional Liberty. It must be a governmental entity.
§ If you’re suing the federal government, you do so through the 5th Amendment’s Due Process Clause.
§ If you’re suing the state government, you do so through the 14th Amendment Due Process Clause.
¨ There are two exceptions to the state action doctrine:
1. The Public Function Ex
s out in Lochner.
v Lochner: NY law that says bakers can’t work more than 60 hours per week. Baker brings suit as violation of Due Process.
X When CAN the government limit contracting rights? à When its legitimately in the police powers.
§ Chimerinski List: Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public . . . The state, therefore, has a power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the state, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the 14th Amendment.
X The Court in this case says the reasoning the state is relying on is its too slippery of a slope; it could be applied to limit any trade, not just baking. Also, the court says that theres not enough evidence to show that there is ACTUALLY a public health issue.
¨ Lochner eventually gets rejected for three primary reasons in the 1930s:
1. The Great Depression: Laissez-faire economics were not working.
2. Court Packing: Hotel Case à Upheld New Deal Legislation; FDR backs down on court packing.
3. Shift in public opinion on economic theory: Freedom of contract was a POLITICAL CHOICE; NOT literally, explicitly embodied in the Contract. The court shouldn’t be making a “political decision”: Had to redefine “liberties” in regard to contractual/economic rights.
v Parish Case: Hotel maid hasn’t been given her minimum wage.
X Court essentially adopts the concern in the third reason for why Lochner was overruled, and then goes on to apply rational basis scrutiny. à Did the legislator have a possible rational-basis for enacting the law.
X The take-away: as long as legislation is reasonable and concerns public safety/welfare, it can override the liberty interest of freedom of contract.
v Carolene Products: Fake Milk Company brings a Due Process claim against the US – Fed law (therefore, 5th amendment).
X Court: You DEFER to the legislature à RATIONAL BASIS SCRUTINY!
X Court: Studies show that fake milk is dangerous.
X Court: If there are any facts that are known or could be reasonably assumed, you defer to the legislature.
X Footnote Four forms the basis of heightened scrutiny:
§ If its directly in contradiction with the Bill of Rights
§ If it impairs the political process (ability of the majority to effect its will)
· Targets minorities (mostly about race)
· Religious
