DALE CARPENTER, 14th AMENDMENT CONSTITUTIONAL LAW
FALL 2015
I. THE BILL OF RIGHTS & INCORPORATION A. The Bill of Rights
1. Multiple Interpretations
a. One reading: Protecting localism, not individual liberty
b. Under that reading, it is more about localism than protecting liberties- These were all things states were doing they wanted to protect
a. First amendment: Est. of Religion: Congress could not eliminate formal state establishments of religion.
b. Second: Local Militias
d. Fifth: state grand jury process protected e. Sixth: criminal trial juries;
f. Seventh civil juries
2. Barron v. Baltimore
Holding: Bill of rights does not apply to the states; only a restriction on the federal govt. A state govt, under this reading, is free to deny the freedoms listed in bill of rights to any individual under its own state law.
Facts: Baltimore destroyed his property (wharf) by diverting a stream; P argues: 5th Amend. taking without comp.
Reasoning: Textual
• Structural: intratextual reading of Sec. 9 and 10 of Art. I; they separate state and federal powers;
• Govt. is federal, so its constitution only limits the federal govt. unless otherwise specific (exclusio ulterius) Losing Argument
• No explicit limitation to federal govt. only (does not say “not the state govt.”)
• First Amendment specifically says “Congress,” so why don’t the rest of the amendments? Key Points:
• Textual (above)
• Historical
o Drafters mainly concerned about tyranny of central govt., not states
o Use history in two different ways:
§§ Weak role of historical evidence; history is only allowed to inform ambiguous text
§§ Strong role of historical evidence: a conclusion of history might lead to a different conclusion than reading the text alone
§§ Problem: history of constitution very debatable
• Structural
o Constitution sets up a national govt., its powers and not the states (but when it refers to the states, it does so explicitly).
3. Slaughterhouse Case
Holding: National Rights Approach (Miller): Judicial Restraint, the federal judiciary will not police states Facts: Butchers challenge LA law granting slaughterhouse a monopoly, claiming an Art. I P&I violation. Reasoning:
• Majority (Miller): National Rights Approach
o Look to rights arising because this is a country; rights that wouldn’t exist without country status are national rights that must be preserved by Court
o Examples: treaties, foreign nations, high seas.
o This is a very narrow approach, but too concerned about Field’s approach (see criticisms)
• Field Concurrence: Fundamental Rights Approach
o Look to natural rights that belong to citizens of all free governments.
o Response to Miller’s approach: 14th amend. would be unnecessary surplusage because the rights of
national citizenship would have already been protected by Constitution.
o Criticisms:
(1) Judicial restraint. P & Is are determined by the states, not fed. govt. (first full para. pg. 344); should not be perpetual censor of states;
(2) Difference between being a citizen of the state v. a citizen of the United States. Text at beginning of 14th amendment. The framers understood there should be something to distinguish those types of citizens. They only protected national citizenship;
(3) Reads constitution and P&I too expansively: Departs from theory of relations of state and fed. govts. that lets states make their own decisions. Federalism. Field might respond: that is why we fought Civil War and passed the amendments; redfines.
• Bill of Rights Approach (Justice Black, textualist, later supported this, despite no textual support)
o Provides a list of basic P&Is of citizenship. This argues that the 14th amendment applies entire B of
Rights to states.
o Criticisms from Field/Fundamental Rights Approach:
(1) Bill of Rights is not exhaustive
(2) If all 14th amend. was to do is incorporate, there should have been incorporation language. It does more than that.
• Three Ways to Approach P&I Clause: How do we determine a P&I?
o Fundamental rights/natural law (Field):
§§ We look to precedent of Art. IV, Sect. 2.
§§ Precedent has held the right to pursue a trade/professor was a natural, pre-political right.
o National Citizenship (Miller)
§§ Go to the text: there are two types of citizenship in 14th Amend: state and federal with diff. rights
§§ Art IV, Sec. 2 provides national citizenship rights; States decide their citizenship rights.
o Bill of Rights Approach (Black, later)
§§ Look at the P&I clause as if it was 1873 and cast our eyes around the Constitution to determine, generally, what are P&Is. The obvious source is the Bill of Rights.
• Why does the majority dislike the other two approaches?
o Court feared the possible effects of broadening the national scope of federal government; this case was about preserving state independence; did not want to be a perpetual censor on the states.
o Second, the court’s opinion reflects a desire for judicial restraint. Dangers of judicial activism/expressing their own policy preferences. Court wants to minimize.
• Demise of P&I Clause. This one case, decided 5 years after 14th amendment ratified, buried the P & I clause for all time, at least until now. Have never been overruled, even though most historians agree that the P & I understanding in this case is almost entirely wrong as a matter of history. Nonetheless, it stands.
o Why not overrule it?
o One possibility is that the court does not need it. It has been accomplished under Due Process.
o Note: Some people thought 14th amendment was only meant for the freed slaves / ameliorate conditions of the slaves/oppressive laws. Miller suggests in non-excerpted portions of Slaughterhouse that 14th amendment protects more than just the freed slaves.
B. Status of Incorporation
1. Not Incorporated:
• Second amendment.
• Third amendment, we don’t know.
• Fifth Amendment’s grand jury indictment requirement.
• Seventh rules on civil juries also not decided.
• Some dispute over 8th amendment’s excessive bail.
• Otherwise, all others apply to the states.
2. Process of Incorporation
• We began with Criminal Due Process Incorporation:
oPalko, Cardozo defines: The “very essence of a scheme of ordered liberty” and “so rooted in the
tradition and conscience of our people as to be fundamental”.
oJustice Black (textualist) favored a total incorporation approach, to have identical restrictions on
oFrankfurter, however, wanted a case-by-case basis to determine whether a claimed right was a part of the “canons of decency and fairness” then apply restrictions to the states, but not total incorporation.
§§ Example: Duncan v. LA – trial by jury applies to the states – selective incorporation of
Cardozo and Frankfurter follows, but ends up with almost total incorporation anyways.
II. SUBSTANTIVE DUE PROCESS A. Introduction
Means
Ends
Fundamental Right: Strict Scrutiny
Necessary / Narrowly Tailored
State Interest Must be Compelling
No Fundamental Right: Rational Basis
Rationally Related / Rational Basis
Review
Legitimate Interest of State
1. Definition: Substantive Due Process holds that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or “processes”) be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the “Due Process” clause a “Due Substance” clause as well.
2. There is arguably no textual justification for substantive due process.
3. Due Process Clause(s): They allow you to deny someone their property, as long as they get due process.
4. Calder v. Bull (1798, S.Ct., seriatim opinions, pg. 362)
Holding: Connecticut state legislature has constitutional authority to impose a law validating a will, which thereby would direct inheritance property from one set of heirs to another. Will is valid.
Facts: Probate court rejects a will; legislature sets aside decision by legislation; heirs who would have inherited by common law (instead of will) bring a claim; this court rejects.
Reasoning: Two conflicting approaches to interpreting constitution
• Justice Chase (fundamental rights/natural rights approach)
o The purpose for which men enter society will determine the terms of the social contract, as those reasons are the source of legislative power.
o Cannot assume that such overarching powers are held by legislature just because they’re not expressly restrained. The opposite should be presumed.
o Examples: protect persons and property, establish general welfare, establish justice.
o The first principle of social compact is no man should be required to do what the laws do not require
and government cannot do what exceeds its authority.
o Application: CT did not exceed its authority. Individual had no “vested” property right; law is consistent with natural justice.
• Justice Iredell (positivism)
o Only things protected are those specified and enumerated in constitution
o Offers view that legislatures may make laws within their general constitutional power [strangely, this seems to infer they have powers not enumerated] and a court may not strike it down just because they disagree with wisdom of the policy. I.E. Rational Basis Test.
o Criticisms of Chase’s approach:
§§ This restricts the courts as well as legislature, so a court would not have the power to strike
down the legislative act anyway.
§§ Second, fundamental rights approach inherently unstable because wise men can disagree on what constitutes a fundamental right.
§§ Problem with this theory today if we’ve gone far beyond what it’s specifically enumerated
5. Pre-Lochner Case Law
• Economic context: social Darwinism; Laissez-faire economic theory
• Court slowly gains a majority to embrace substantive due process
o Munn v. Illinois, 1877, Court rejected an attack of a state law regulating the rates of grain elevators. Justice
Waite emphasized how the police power included the regulation of individual use of property that affected public interest.
o Railroad Commission Cases: Justice Waite again sustained regulation but left door open for greater judicial control: “It is not to be inferred that this power of regulation is without limit.”
o Persons as Corporations
§§ Santa Clara County v. Souther Pac. RR, 1886: Corporations are persons within the 14th amendment.
This invalidated a state law authorizing administrate rate setting without judicial review / some procedural protection (substantive as well as procedural).
o Mugler v. KS, 1887, Justice Harlan: Not every statute ostensibly for the promotion of public health or safety, etc. would be accepted as the legitimate exercise of police powers — court shall not be misled by false pretenses.
That is why you must look to the actual substance.
• The switch is “complete:”: Allgeyer v. LA, 1897: Unanimous o
ities
• Dissent (Holmes)
§§ A workman may reasonably believe that only by entering a union can he get a fair contract.
§§ If a reasonable man may believe that, then it seems enforceable by law. There is nothing in the constitution to prevent it.
8. Muller v. Oregon (S.Ct., 1908, pg. 374)
Holding: State legislation may constitutionally pass a law limiting a woman’s work hours.
Facts: OR passed a law prohibiting women from working more than 10 hours/day in factory or laundry. Reasoning:
• Woman’s body structure disadvantaged; the law should protect her or she may be unhealthy.
• Women are unique in their offspring bearing, and that is a subject of public interest, so govt. has a strong interest in using its police power to limit her work day.
• Woman has always been dependent upon a man.
o This could be interpreted as arg. for equalizing the sexes, or
o May be that she doesn’t have to work as much because she has an alternative source of income
Key Points:
• Illustrates how even during Lochner era, some economic regulations upheld.
• Paternalism impermissible except for regulating women and children
9. Adkins v. Children’s Hospital (1923) (overruled!)
Held: D.C. law prescribing minimum wages for women violated due process.
Reasoning: Justice Sutherland noted the change in society between 1908 and 1923, namely passage of the 19th amendment, and that the civil inferiority of women was thus almost at a “vanishing point”.
• Therefore, liberty of contract could not be subjected to a “naked, arbitrary exercise” over women any more than men. Same limits.
Holmes’ dissent:
• Finds it hypocritical that the same people who argue that you can’t regulate wages can regulate hours.
• It will take more than the 19th amendment to demonstrate that there are not still differences between men and women. Legislation may take that into account.
10. Nebbia v. New York (S.Ct, 1934, Justice Roberts, pg. )
Holding: Upheld under rational basis test. “The guarantee of due process demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the object sought to be obtained … If the laws passed have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.”
Facts: NY passed a law est. a milk control board with power to fix min and max prices charged as stores. Nebbia sold milk at 7.5 cents when board was requiring 9 cents per quart.
Reasoning:
• Milk as vital product to economy;
• Right to contract, while a private right, is not absolute.
• Fundamental is public interest in regulation
o Guarantee of due process demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means shall have a real and substantial relation to the object sought.
o Rule: A state is free to adopt whatever economic policy may be reasonably deemed to promote public welfare and enforce by legislation for that purpose.
o Courts may not make such a policy or override legislature when it makes rational law.
o However, tries to make the phrase “public interest” sound narrow (btm. 375).
• Note: Majority fails to explain how this policy will increase farm revenue- what is the basis? Dissent (McReynolds, Van Devanter, Sutherland, Butler)
• They either reject rational basis test or attack it head-on
• Concludes state interferes arbitrarily with protected right to contract under long-accepted standards; takes away liberty of consumers to afford a necessity of life.
Significance of Case:
• Indicates greater willingness by court to tolerate economic regulation generally;
• Explicitly recognizes might be harm to general public in exercise of individual contract rights
o May produce greater harm to others;
o Quote (pg. 375): “Govt. cannot exist if the citizen may at will use his property to the detriment of his fellows … equally fundamental with the private right is that of the public to regulate it in the common interest.”
• However, court later retreated from Nebbia a little in Morehead (1936) by invalidating a women’s wage law. Does Nebbia abandon Lochner?
• Formally, it does not overrule it and you must still have a means-ends connection. However, very different outcome.
• Lockner attack on this case: price control is an indirect way to protect health, so it’s a tenuous relationship and no express rational basis. Price controls only create an over-supply of milk in long-term.
• Lockner defense: Prof: quite difficult. Majority doesn’t even respond to the dissent’s attacks on the rational relationship.
