Select Page

Constitutional Law II
University of Maine School of Law
Friedland, Steven I.

Chapter 7: The Bill of Rights and the Post-Civil War Amendments:
“Fundamental” Rights and the “Incorporation” Dispute

Introduction: The Bill of Rights was originally enacted as a limitation on the power of the federal government; they had no express constrainment on the States. The Reconstruction Amendments changed that: the 14th Amendment states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This amendment’s due process clause has since been interpreted to mean that, to at least some degree, the Bill of Rights is now applicable to the States.

I. The Pre-Civil War Situation: Before the Civil War, the Bill of Rights (Amendments I – X) were understood to protect American citizens only from the Federal Government. They were not binding upon the States. The result of this belief was that the Court was limited in influence over state legislation.

II. The Purpose and Impact of the Post-Civil War Amendments

A. Early View: The original understanding of the 13th, 14th, and 15th Amendments was that they existed to protect freed blacks from discriminatory state legislation following the Civil War. The Court rejected the view that the 14th Amendment’s due process clause applied the Bill of Rights to the states; rather, it was a procedural legal mechanism. Likewise, the Amendment’s privileges and immunities clause was held to forbid state interference with the rights of national citizenship.

Ex. Slaughter-House Cases, 16 Wall. (83 U.S.) 36 (1873): LA passes a law giving a monopoly on New Orleans slaughterhouses to a particular company. Ps, butchers excluded from the monopoly, sued on the theory that this action deprived them of their ability to freely practice their trade under the 13th and 14th Amendments, including a denial of the privileges and immunities of LA citizenship. The Court rejects these arguments: “fundamental” civil rights are the domain of the states, not the federal government, and only LA law can provide Ps with the protection they seek. Nor does the due process clause apply: this only refers to the procedural protections of law, not the substantive ones.

1. Privileges and Immunities of National Citizenship: States were thus prohibited from interfering with the rights of national citizenship. Under Slaughter-House, these rights included “free access to…seaports,” federal protection on “the high seas or within the jurisdiction of a foreign government,” and so on.

2. The Right of Interstate Migration and Saenz v. Roe: The Court has long recognized the “right to travel” as a basic constitutional freedom. However, its exact source has been constitutionally uncertain.


a. Pre-Fourteenth Amendment View: The Court’s earliest holdings suggested that it might lie in the basic structure of the Constitution. (See Crandall v. Nevada, 6 Wall. [73 U.S.] 35 [1867]; the reason for this holding is uncertain.)

b. Commerce Clause: One theory is that the Commerce Clause’s prevention of state isolationism necessitates the freedom to travel. (See Edwards v. California, 314 U.S. 160 [1941]: The Court invalidated a CA law making it a misdemeanor to knowingly bring any indigent non-resident into the State. Some judges argued that the Commerce Clause demanded the invalidation.)

c. Equal Protection: A similar argument lies with the Equal Protection clause of the Fourteenth Amendment, which prohibits distinctions between classes of people absent a substantial state interest.

B. Modern View: Recently, the Court has held that the 14th Amendment’s Privileges and Immunities Clause protects fundamental rights, such as the right to become a citizen of another state, and to enjoy the same privileges as long-standing citizens of that state. Actions contrary to that holding apparently are subject to strict scrutiny.

Chapter 11

Political Sedition Cases

Abrams and Masses cases contain opinions with a great deal of theory of why one should protect free speech. Seeing that these range over a ten year period, those are the first cases dealing with the first amendment and a very conscious argument among very good judges about what free speech means and the nature of it.

Seditious libel is the area of free speech we are dealing with, which means libel of the government. In its common law form in England to bring the government into disrepute or into revolution which was a criminal action. Truth was not a common law defense – it actually increased the penalty b/c it made it more likely that sedition would result. 1917-1969 was the line of these cases.

Abrams v. United States

The defendants, Russian immigrants in NYC, were convicted of violating the Espionage Act for “intending to incite, provoke, and encourage resistance to the US during WWI …and conspiring to urge, incite and advocate curtailment of production of ordnance and ammunition, necessary to the prosecution of the war.” They wrote and distributed thousands of circulars (pamphlets) on NYC streets advocating a general strike and appealing to workers in ammunitions factories to stop producing weapons to be used against the Russian revolutionaries.

Holding: the convictions were upheld

**Main Focus: Holmes dissent

Justice Holmes dissent: The entire conviction is based on only two leaflets. Holmes calls the incident by a “silly leaflet by an unknown man.” So Holmes finds it very unlikely that any result would occur from these leaflets. Holmes argues that the intent requirement is not established for the requirement of the Act. Clear and present danger requirement can’t possibly be met since the action is not going to occur. The problem with this reasoning is that as long as your ideas have no chance of acceptance as long as they don’t matter you can say it…but if someone is going to listen or maybe even agree with you then that comes closer to a clear and present danger. So we should protect any “irrelevant speech” but relevant speech is a different matter – this reasoning doesn’t make sense. Suggests that freedom of speech is not of much utility.
Advocates a market place of ideas.

But many ideas that people have fought for have come and gone over the years.

Masses Publishing Co. v. Patten

The plaintiff is a monthly revolutionary journal, “The Masses.” They sued the defendant, the postmaster of NY for not delivering their August journal due to four of the cartoons and four articles in the journal said to violate the Espionage Act of 1917

Defendant’s Arguments
1. False Statements
2. Willfully Causing Insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the US
3. Willful obstruction of the recruiting or enlistment service of the US

Holding: The cartoons and articles do not violate the Espionage Act

You literally can’t have democracy without freedom of speech – Friedman

is Abrams or Masses more speech protective? (clear and present danger or incitement)?

“Red Scare” Cases:

Gitlow v. New York

not a clear and present danger test

clear and present danger test applies to particular speech and particular events – this case is an entire category of speech!

the court is saying the legislature should make the decision about what is dangerous enough to convict

Gitlow was convicted of criminal anarchy under NYPL 160, 161
Two charges:
1. The defendant had advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means by certain writings in “The Left Wing Manifesto”
2. He had printed, published and knowingly circulated and distributed “The Revolutionary Age” containing the same writings as in count one.

Defendant’s argument: That there was no evidence of the concrete result flowing from the publication of the Manifesto or the circulation showing the likelihood of such result, the statute as construed and applied penalizes the mere utterances having no quality of incitement, without regard for either the circumstances of its utterance or the likelihood of unlawful consequences, and therefore contravenes due process. the leg is trying to remove a category of speech – shuts down the marketplace of speech

Holding: The conviction was affirmed

Reasoning: The statute prohibits language advocating, advising or teaching the overthrow of organized government by unlawful means. This implies urging to action. The Manifesto does advocate and urge action and is the language of direct incitement.

Dissent (Holmes) – there was no evidence of present danger. every idea is an excitement. this statute does harm to the marketplace of ideas by removing an entire category of ideas.

Whitney v. CA

same type of statute that is in the Gitlow NY statute

Brandeis dissent – this isn’t a conspiracy to incite – they are planning to act

justification for free speech:
marketplace justification
democracy justification
to make men free to develop their faculties

Dennis v. US

Statute makes is a crime to be a communist. outlaws a status

clear and present danger test – whether the gravity of evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger. this can be viewed by a pro-prosecution formula.

Holmes dissent – reasonableness test – sounds like Gitlow

Wrap up of red scare cases – the cases we’ve read are criminal cases – congress can vote a committee that power to subpoena – over 19K people lost their jobs – Sen. McCarthy publicly embarrassed people who he knew were not communists à made them take the 5th à they were labeled communists.

Fighting Words Cases

Friedman – “Our society gives more protection for freedom of speech, but there is a narrower category of political discourse in the US.”

Brandenburg v. OH – modern incitement test
Test combines the most protected speech of Hand with most protected speech of Holmes
Distinction to be made b/w the abstract teaching and inciting to action
à last case in the line of political sedition cases

Chaplinsky v. NH (1942) – direct verbal attack on the Police Marshal – law bans words that causes average man to fight. There is a balancing test – these words to not add to the exposition of ideas à this is a categorical exception to FS. “free speech is not absolute at all times and under all circumstances.”

This has never been overturned – fighting words are not protected. However, no case since chaplinsky that fight words have been upheld.

Cohen v. CA – “Fuck the Draft” jacket.
Issue – whether CA can excise as offensive conduct one particular scurrilous epithet from the public discourse – either upon the theory of the court belie that its use is inherently likely to cause violent reaction or may properly remove this offensive word from the public vocabulary.

Harlan says you can’t remove words from the vocabulary – STILL GOOD LAW
Friedman thinks this is a significant case – widens political discourse.
“hate speech is outlawed today”

Q – If you take Chaplinsky and Cohen, what is the value for sacrifice? Do we lose anything? Or is Harlan obviously correct? What is the underlying value?
A – we lose civility.

NYTimes v. Sullivan –
This opinion says
Actual malice standard – with knowledge that it was false or with reckless disregard of whether it was false or not. à burden is on the P

Gertz – being an atty in a high public case does not make you a public figure.

The law today:

When the speech is of public concern and the P is a public official or public figure, the Constitution clearly requires the P to surmount a much higher barrier before recovering damages from a media D than is raised by the common law

When the speech is of public concern but he P is a private figure, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the P is a public figure and the speech is of public concern

When the speech is of exclusively private concern and the P is a private figure

Amendment absolutism has never commanded a majority of this Court and even the newspapers concede that there are situations where restraint is in order and constitutional. J. Wilkey concluded that a number of examples of documents that, if published, “could clearly result in great harm to the nation,” meaning the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, and the inability of our diplomats to negotiate.
JUSTICE BURGER (dissenting)
He generally agreed with J. Harlan and J. Blackmun but that he was not prepared to reach the merits of the case….the cases had been conducted with unseemly haste and that “we literally do not know what we are acting on.”
373 -383 for Friday
Free Speech in Schools

Tinker v. Des Moines School District – height of Vietnam war – court held that public school could not discipline 2 students for wearing black armbands to school to publicize their objections to the Vietnam war.
Hamdi v. Rumsfeld
Writ of habeus corpus – means you have the body. Given to judge by prisoner –

President, Congress, and War Powers: Article I grants the power to “declare war” and raise a militia to Congress; the President only serves as “Commander-in-Chief.”

a. War Powers Resolution: After the Vietnam War, Congress passed the War Powers Resolution. It limits the President’s ability to issue troops to three situations:

i. a declaration of war;
ii. specific statutory authorization, or
iii. a national emergency created by attack on the United States.


After 60 days, the President’s continued use of troops ends, unless Congress:


i. declares war;
ii. has extended by law the 60-day limit, or
iii. is unable to meet due to the attack.

In Hamdi, the President stated that he could name anyone an “enemy combatant.” Professor Friedman said that President meant “unlawful combatant.” The court held that the Executive is not the sole power. As a result of Hamdhi, the administration started military tribunals functioning at Guantanomo Bay.

Basic issue – what process is Hamdi due? He’s been in prison – he’s an American citizen.
Hamdi is entitled to more DP than what he got.

PROCEDURAL POSTURE: Petitioners, a citizen-detainee and his father, petitioned for a writ of habeas corpus under 28 U.S.C.S. § 2241. The U.S. Court of Appeals for the Fourth Circuit ordered the petition dismissed, finding that the citizen-detainee’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. Certiorari was granted. The U.S. Supreme Court issued its decision in a plurality opinion.

OVERVIEW: The citizen-detainee was born in the United States, detained in Afghanistan during the United States’ military action against the Taliban regime, and transferred to the United States. Pursuant to a government official’s declaration, the Government contended that the citizen-detainee was an enemy combatant. Aside from unspecified screening processes and military interrogations, the citizen-detainee received no due process. The Court determined that the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorized the detention of individuals in the citizen-detainee’s circumstances and that the AUMF satisfied 18 U.S.C.S. § 4001(a)’s requirement that a detention be “pursuant to an Act of Congress.” However, under the Mathews analysis, the Court determined that the citizen-detainee, seeking to challenge his classification as an enemy combatant, was entitled to receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. The Court rejected the Government’s assertion that separation of powers principles mandated a heavily circumscribed role for the courts in such circumstances.

OUTCOME: The Supreme Court vacated the appellate court’s judgment and remanded the case for further proceedings.

Chapter 9: Equal Protection

I. An Overview: The Fourteenth Amendment also holds that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” (The Court has come to read the clause into the Fifth Amendment, thus making equal protection applicable to the federal government as well; see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)). The clause guarantees that when the government takes an action recognizing classifications of people, the creation of that classification will be reasonably related to the legislation. Ultimately, people who are similarly situated will be treated alike, while those who are not will be treated differently.