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Constitutional Law II
University of Maine School of Law
Graber, Mark A.


We protect rights by enumeration [eg no cruel and unusual punishment].
The original constitution didn’t have all that many rights but the founders thought it did:

an alternative to telling people what they cant do is telling them what they can do. [cannot interfere with religious rights because we haven’t been given the power to do so in the c or bill of rights]. In most civil rights cases, it wasn’t whether the individual had the right it was did the government have the power.
Roger Sherman- the bill of rights has no influence unless you elect people who are interested in protecting your rights. We need a structure of government where people are interested in protecting our rights- more important than just writing down what your rights are.
equal protection policy- it must protect everyone equally so that way people end up doing things to others as they would do unto themselves.
what rights we depend on depend largely on who we elect into office.

The 6 rules of constitutional grammar:

textual arguments- all constitutional arguments must refer to specific text.
Historical arguments- what was going on when a particular provision was ratified? What did the text mean at the time the words were ratified? What was the public meaning? Public meaning differs from the framer’s expectations- “natural born citizen” [technically wouldn’t be if a c-section- not what the framers intended/meant when they wrote the bill/law]. We honor the framers intentions when we protect speech that should be protected. The problem of generality is a big one.
Doctrinal arguments- we establish precedents in the American system of law, these precedents become good law. Cannot just say this is the fourth amendment- you have to say it is consistent with past consitutional precedents.
Pragmatic arguments- the constitution is not a suicide pact- we interpret constitutional provisions in light of the costs and benefits. For example, the president sends troppos into war without the approval of congress because in modern warfare waiting for that would be too cumbersome. This is a legitimate constitutional argument.
Structural arguments- “here are the best principles that explain the allocation of powers between the states—given that principle this is the right way to solve this case before us.”
Ethical arguments- the fun ones. The constitution gives people certain powers and certain rights. We ask, what are the best principles that explain the distribution of powers and rights? And we apply it to the case before us

Civil Rights Cases and the Civil War-The Pre-Civil War Situation- page 446-
THE FOURTEENTH AMENDMENT: the fourteenth amendment provides that “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 prtection of the laws.

Remember 14a applies to the states and 1-8 applies to the federal government. If it is a state government there are no problems with the first eight amendments.

Privileges and immunities clause- The Privileges and Immunities Clause of the Fourteenth Amendment only refers to uniquely federal rights and does not protect those rights which relate only to state citizenship, nor does it incorporate any of the Bill of Rights. Slaughter­house Cases.

The civil war ended slavery according to Justice Miller- the war was simply about the freedom of the slave race and said largely that if it doesn’t concern persons of color its not a 14th amendment problem. The Slaughter House Cases [1873, Justice Miller].

i. Liberal sentiments don’t last too long- already by the 1870’s the northerners were tired of protecting people of color.
ii. By taking a very narrow understanding of the civil war, the SC dramatically reduces the meaning of the civil war constitution.
iii. Slaughter house says we are under the same constitution as before but now we do not have slavery- this interpretation doesn’t last.

Other arguments of what the civil war was about-

i. economics- the south was organized economically different than the south.
ii. federalism- how much power should be given to the federal government?
iii. whether there should be a union and could the south secede.
iv. the civil war was not caused by the south having slavery it was caused by the souths succession from the union.
v. whether the United States “is” or the US “are”
vi. Industrial revolution- North won because it had more railroads/.
vii. the centrality of a free labor society- A celebration of a free labor society, the fundamental right of a person to enjoy the fruits of their labor.
viii. no longer trust states to protect the fundamental rights of people- particularly slaves (ex slaves now).
ix. Northerneres had a fear that southern society was controlling the national government.
x. slavery violates the rights of white people because one cannot earn a living competing against the slaves in the territories.
xi. put fundamental power back in congress.

one may choose the state you want to be a citizen of. Saenz v. Roe

i. The US is not the US are-
ii. before the civil war could still hav ethe argument that states could decide what they wanted- like some people cant be a citizen of your state.
iii. according to the citizenship clause of the constitution one has a rightg to pick the state in which they live and have the full rights and benefits of the state I choose and all the state can argue is whether I am a bona fide student.
iv. If you act in a manner that show an effort to take up permanent residence of the state, you have the same rights and benefits of any other citizen of that state.

States may not discriminate against new residents unless there are portable benefits. Saenz v. Roe.
A college education is a portable benefit. Gladys v. Klein.

Portable benefit- people come into the state, get the benefit, and then leave.
Privileges and immunities clause- states cannot differentiate between bona fide resi

o be particularly fundamental to the D’s right to a fair trial.
· Cardozo: bnelieves in fundamental fairness, but also asserts that the constitution is the manifestation of those rights which people believe to be fundamental and fair.

A principle to the general scheme of liberty refers to abstract philosophy.
If this were a federal trial Palko would have won.
A principle o fundamental to OUR scheme of liberty may be different- that is an ambiguity given in Palko.
Decisions should be objective, can we avoid judges being subjective and deciding just what is fundamental.
Justice Black wanted total incorporation- he said he had 2 versions-

i. This was the original understanding of the framers… the 14th amendment was designed to make the states conform to the bill of rights.
ii. Structural argumentà this is the most natural meaning of privileges and immunities.
iii. Disagree about fundamental rights, Black says this idea of fundamental rights gives us no where to go, the judges decide on their own discretion wherteas the bill of rights say THESE ARE THE FUNDAMENTAL RIGHTS!
iv. Now judges discretions are confined… we don’t go around making up 0our own rights.

Justice Frankfurter says its fundamental fairness-

i. That’s what history supports.
ii. Structural argument- yes, the framers may have had certain beliefs about due process, but do we really want trials frozen into their 1787 form? Down we want states to be able to experiment and see what procedures are best? Certainly, there are some procedures we do not tolerate, like new forms of torture, but shouldn’t the state adop-t procedures that result in a correct verdict
iii. Our culture has very clear meanings of what fundamental rights are… Black’s opinion doesn’t help because you look at “freedome of speech” and you get the same disagreements.

Eventually, selective incorporation won out, which is a compromise between the two positions. The 14th a incorporates some provisions of the Bill of Rights, once a provision is incorporated, all of the provision is incorporated. But, not all provisions are incorporated. The only provisions that are incorporated. The only provisions that are presently not incorporated are-

i. The grand jury provision of the 5th amendment
ii. Excessive bail in the 8th amendment
iii. $20 limit/jurisdiction rule in the 7th amendment (requires jury trial if excess of $20.00).