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Constitutional Law II
University of Maine School of Law
Friedman, Maine James

Constitutional Law II

Scope of the Course: Civil Liberties, First Amendment, EP and habeas corpus

Chapter 7. The Bill of Rights & The Post Civil War Amendments

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

Civil Liberties and Amendment #1

American Constitutional Periods:

Writing of Constitutional to the Civil War: federal government is a government of enumerated powers; state governments have police powers; during this period the purpose of the constitution was to protect the citizens of the U.S. from tyranny, from too much control by the federal government
1765 – 1930: The Civil War and the victory of the U.S. over the confederacy created the 13th (abolishes slavery), 14th (no state shall….) and 15th amendments (right to vote). This period was focused on the idea that the states might be the source of tyranny and that citizens needed to be protected from the states by the federal government, hence the 14th amendment.
Current period

Real issues of the Alito hearings: whether the court will continue to cut back on the powers of Congress while expanding executive powers

Slaughter-House Cases

Louisiana created a corporation and gave it a 25-year monopoly over slaughterhouses, and required them to allow butchers to come to this slaughterhouse to do their work for a statutorily created fee. The plaintiffs here argued that the law created an ‘involuntary servitude’ in violation of the 13th amendment, and that it violated the 14th amendment by abridging their ‘privileges and immunities.’

13th Amendment Holding/Reasoning: The purpose of the 13th amendment was to end African slavery.

14th Amendment Holding/Reasoning: The amendment protects citizens of the United States from federal laws, rather than citizens of the states from state laws. The amendment only protects privileges and immunities of the citizen of the U.S., and does not protect the privileges and immunities of the citizen of the state. The majority says this federal government is a government of limited power. The expansive powers are in the states to regulate.

Black Letter Law: The 13th and 14th A’s are to be read narrowly and apply only to former slaves and AA’s.

Are not citizens of the US automatically citizens of the state? What was the purpose of the amendment if not to protect citizens from the states, since they were already protected from the federal government?

History: Prior to the civil war, citizenship in the U.S. was a murky area. The states determined citizenship, and if you were a state citizen than you were a U.S. citizen.

Dissent: J. Field’s disagreement is that the 14th amendment does not attempt to give new privileges it just says that the rights of citizens can’t be abridged by state legislation. To what extent did the Civil War change the shape of common rights in America? The P and I are not new in the amendments; they were here before in Art. IV, § 2. He follows this up with the third paragraph which says the state may regulate, but the pursuit must be free to be followed by every citizen. Restriction should be equal.

Chapter 10. The Post-Civil War Amendments and Civil Rights Legislation:
Constitutional Restraints on Private Conduct; Congressional Power to Implement the Amendments

The Civil Rights Cases (1883)

Black Letter Law: Congress may not prohibit individual acts of racial discrimination by private citizens because the language of the 14th amendment limits it to state action giving Congress no power.

Holding: The 14th amendment doesn’t cover it unless there it’s overt state action. Civil Rights Act of 1875 is found unconstitutional on the grounds that Congress was without power to enact provisions of the Civil Rights Act under which private citizens are prosecuted. That the statutory provisions were void as applied because they were issues to be regulated by the states. The Civil Rights Act of 1875 is very modern in its notions of equality and use of public accommodations. This one is almost identical to the one drafted under the Commerce Clause in Heart of Atlanta. The CRA of 1964. Two groups opposed civil rights group’s then- racists and federalists. Federalists were opposed to it because it was a right of privacy in 1964 that one controlled one’s restaurant/hotel and one could make restrictions.

Note: The theme emerging at the most general level is that states get to regulate civil rights; the federal government can ONLY come in if there is STATE violation. The majority is saying the Civil War didn’t change this that much. These two decisions are still with us and structure the nation.

Harlan dissent: He reads the 13th amendment much more expansively and says it prohibits discrimination as well as slavery. These are quasi-public functions and Congress can legislate them. To the 14th amendment he says that the assumption that it only applies to the States is wrong, and the P and I shall apply to the citizens of the states. He says the fundamental nature is to give blacks both citizenship (US and State), and then Congress can protect both types from discrimination. Congress can protect the rights of citizenship affirmatively; they don’t have to wait for discriminatory state action or just state action.

The Civil Rights cases presume outlawing certain types of discriminatory state action (federal action), but in the Slaughterhouse cases they are saying the Privileges and Immunities Clause does not set up a national code of rights.

Chapter 11. Freedom of Speech – Why Government Restricts Speech –
Unprotected and Less Protected Speech

Section 2. Incitement

A. The WWI Cases: “Clear and Present Danger”

Schenck v. US (1919)

Schenk said in a form, “do not submit to intimidation, assert your rights, oppose the draft, do your share.” The form was printed in a circular sent to men called upon for the draft and the purpose was to get them to resist. They did not suggest violence, but these cases are criminal. The charge was that under the Espionage Act of 1917, a criminal action can be brought against anyone who does these things. He was charged with espionage and undermining ability to draft and to encourage mutiny. In this case the clear and present danger test is formulated to address the protection that should be given to speech that incites the hearer to action.

Test: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a matter of proximity and degree. (Holmes suggests you don’t have the same free speech rights in times of war.)

Abrams, Masses and Whitney v. CA all contain opinions with a good deal of “opinions.” And they are the first cases dealing with this and great discussion about the nature of free speech. This area of law is called “seditious libel.” In the English law this is libel of the


B. The “Red Scare” Cases

1920’s-30’s: feverish anti-radicalism, deportation of aliens by federal government and 2/3’s of states adopted laws prohibiting criminal anarchy and criminal syndicalism.

The Gitlow-Whitney Problem: the Court is faced with a prior legislative declaration that certain classes of speech cause an intolerable risk of serious harm. It made it inherently difficult for judges to set aside a legislative judgment that a particular variety of speech is dangerous.

Gitlow v. New York (1925)

The plaintiff was convicted of the crime of criminal anarchy under a NY State Law. He was a socialist party member who acted on a board in charge of producing and distributing a Manifesto which advocated the overthrowing of the US government in violation of NY’s anarchy law. He also called for mass industrial and political strikes in order to overthrow the US government and replace it with a Socialist government for the proletariats. Plaintiff argued that because there was no harm that resulted, that to penalize the “utterance” violated his 14th am. due process rights.

Background: A Marxist believes it is inevitable there will be communism and the only way to get there is violence because of class divisions. The problem here is there are a bunch of people running around talking about a revolution and violence, but when you sign the card nothing is about to happen, keep in mind.

Black Letter Law: The clear and present danger test does not apply to state laws where the state legislature has determined, in the constitutional exercise of its police powers that certain kinds of utterances involve such danger of substantive evils that they may be punished (they deferred to state law judgments rather than applying the test).

Rationale: Freedom of speech is a first amendment fundamental personal right guaranteed by the DP Clause, but this freedom doesn’t deprive the state from taking their own actions as self preservation. State law determinations are presumed valid. What he advocated met the “clear and present danger test” and it met the “immediate test,” so the state can’t be bothered with the details when it needs to protect peace and safety. This is NOT an arbitrary or unreasonable exercise of PP’s. Publication and Circulation is enough because the functional definitions of the legislative endeavor said it was.

Result: This meant that by violating the state statute you were presumed to have determined you were already a serious threat to the state (different from violating the federal Espionage Act where there was discussion about whether the speech constituted conspiracy) and it ultimately meant that the circumstances surrounding free speech were applied to a local statute rather than a federal statute and a speaker in one state