Constitutional Law II—Carpenter, Fall 2014
I. The Bill of Rights, Incorporation, and Privileges or Immunities
a. Bill of Rights: The first ten amendments to the Constitution, all adopted in 1791, are commonly called the Bill of Rights. Their principal purpose is to protect the individual against various sorts of interference by the federal government. SCOTUS decided fairly early that the guarantees of the BOR were not directly binding upon state governments.
i. Barron v. Mayor and City Council of Baltimore (1833): A wharf owner sued the City for ruining the use of his wharf, arguing that the City’s actions violated the Fifth Amendment’s prohibition on takings without just compensation.
1. Analysis: Had the Framers of the BOR intended them to be limitations on the powers of the state governments, they would have expressed that intention in plain and intelligible language. Marshall reasoned that: (1) intent was to govern federal government not the states; (2) the difference in language between § § 9 and 10 (“No State”) of Article I distinguishes state and federal government; (3) History at the framing indicated fear of federal government, not the states.
a. Consequence: The courts weren’t able to exercise significant control over the substance of state legislation, or procedures of state law. In this case, the city was able to divert a stream in a way that ruined Barron’s wharf; the Takings Clause of the 5th amendment was inapplicable to state government. Federalism triumphed at this time over ensuring that BOR were followed by the states.
ii. Dred Scott v. Sandford (1857): Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution.
1. Analysis: Under Articles III and IV, argued Taney, no one but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all.
a. Consequences: The decision is considered one of the biggest failures of SCOTUS. In Marbury, Marshall responded to a seemingly insoluble political dilemma by invalidating an act of Congress. Taney in Dred Scott attempted to resolve the nation’s persistent controversy over slavery by invalidating an act of Congress and declared the issue beyond the reach of the political branches. Led to Lincoln’s election, and Congress overriding the case with the creation of the 13th, 14th, and 15th amendments.
i. Dissent: I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of person who were citizens of the U.S. at the time of its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws.
b. Post-Civil War Amendments: The relative lack of constitutional restrictions on relations between state governments and individuals was drastically changed by the enactment of the three Civil War Amendments, the 13th, 14th, and 15th . Each of these three was enacted for the purpose of barring discrimination by states against individuals, especially blacks.
i. Thirteenth Amendment: Outlawed slavery (constitutional sanction to Emancipation Proc).
ii. Fourteenth Amendment: § 1: “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.” (constitutional sanction to Civil Rights Act)
iii. Fifteenth Amendment: Voting
c. The “Incorporation” of the BOR Through the Due Process Clause: Shortly after the 14th amendment was enacted, SCOTUS seems to have implicitly rejected the notion that that Amendment automatically made applicable to the State all of the BOR guarantees (which had previously been binding only on the federal government). But exactly what effect the 14th amendment had on the state’s obligation to honor the BOR remained quite unsettled until well into the 20th century.
i. “Selective incorporation” or “fundamental rights” view: The selective incorporation approach denies that the entire BOR is made applicable to the state via the 14th amendment. Instead, the term “liberty” as used in that amendment is to be interpreted by judges without regard to the BOR. Only those aspects of liberty that are in some sense “fundamental” are protected by the 14th amendment against state interference. For this reason, the selective incorporation approach is sometimes called the “fundamental rights” approach.
1.
Privileges and Immunities: Butchers believed they had a privilege to operate their own business under the 14th amendment.
Slaughter-House Cases (1873): A Louisiana law that granted a monopoly for one corporation to maintain slaughterhouses in and around New Orleans is challenged by out-of-work butchers as a violation of the 13th and 14th (privileges and immunities clause) amendments.
a.
State v. U.S. citizen: State privileges and immunities are not protected by your federal privileges and immunities, so 14th amendment (privileges and immunities) cannot be used.
Analysis: Narrow reading of privileges and immunities clause negates potential to incorporate bill of rights to state legislatures. Federal 14th amendment not meant to regulate state-citizen relationship like privileges and immunities clause of art IV (between states). The 14th amendment references “privileges and immunities of citizens of the United States.” Privileges and immunities for “citizens of a state” (art IV) and “citizens of the United States” (14th) are different. Art IV privileges and immunities are domain of states (states protect civil liberties), 14th amendment did not transfer protection of civil rights from states to federal government. The 14th amendment only protects few which “owe their existence to federal government.”
i. Dissent: 14th does not confer new privileges of immunities or enumerate any, so refers to “natural and inalienable rights which belong to all citizens”
1. Consequences: The cases removed privileges and immunities clause as a vehicle to incorporate bill of rights to states, so now the Court looks to Due Process Clause.
2.
Privileges and Immunities: There is a firmly embedded right to travel. State was infringing on a federal privilege and immunity.
Saenz v. Roe (1999): The Supreme Court struck down, as a violation of the Privileges and Immunities Clause, California’s law which allowed for only partial payments of welfare benefits to newly arrived residents, while paying long-term residents full-benefits.
a. Analysis: First, the right to travel is firmly embedded in
etation of the term liberty, as used in the Due Process Clause. For instance, if a given state regulation is found to be an undue interference with a private person’s “freedom of contract,” or with his “right of privacy,” the regulation is stricken as a taking of “liberty” without due process of law.
b. Substantive Due Process: The doctrine relying on the 14th amendment to invalidate a substantive state regulation is commonly called the substantive due process doctrine.
i. Economic Liberties (and Natural Law): The natural law tradition, drawing on English antecedents, views a written constitution as merely reaffirming preexisting fundamental rights—such as life, liberty, and property— that are entitled to protection whether or not they are explicitly stated in the basic document. It was only a short step to the view that if
The rise of substantive due process on the road to Lochner!
a legislature enacted a law which restricted these “natural rights,” the statute was a deprivation of “liberty” and/or “property” without due process of law.
1. Calder v. Bull (1798): Mr. and Mrs. Caleb Bull, the stated beneficiaries of the will of Norman Morrison, were denied an inheritance by a Connecticut probate court.
a. Chase: Advocated the “natural law” theory. Legislature not “omnipotent” even if not expressly restrained in Constitution. “An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”)
b. Iredell: Pushed back and questioned if there is natural law, courts are in no better position than legislature to determine what it is.
i.
State regulation (police power) was permissible, but sets-up State cannot take property without due process of law.
Consequence: Natural law lends itself to Lochner-era thinking, where rights are not explicitly stated in Due Process Clause but still exist.
2. Munn v. Illinois (1877): Illinois regulated grain warehouse and elevator rates by establishing maximum rates for their use.
a. Analysis: The Court took a broad view of the state's police power. He argued that the states may regulate the use of private property “when such regulation becomes necessary for the public good.” Waite resurrected an ancient legal doctrine to support his view: “When property is affected with a public interest, it ceases to be juris privati only.”
3.
Allgeyer v. Louisiana is the first case invalidated by substantive due process!
Allgeyer v. Louisiana (1897): A Louisiana statute prohibited foreign (out-of-state) insurance corporations from conducting business in Louisiana without maintaining at least one place of business and an authorized agent in the State. Louisiana implemented the statute as an exercise of its police powers, intending to protect its citizens from deceitful insurance companies. Allgeyer and Company violated this statute by purchasing insurance from a firm based in the State of New York which did not meet the requirements of the Louisiana law.
