Constitutional Law II
Carpenter
Fall 2015
I. The Bill of Rights, the Post-Civil War Amendments, and Incorporation
Bill of Rights
Not in originally drafted 1787 Constitution
Lack of enumerated individual rights drew criticism from Anti-Federalists.
Federalists: no reason to include protections for rights fed gov't had no right to intrude upon. Limited fed powers. E.g. no A1S8 power to establish national church.
Including individual rights protections would imply fed gov't has many more rights than explicitly laid out.
Madison promised to get first Congress to address rights.
Tend to think of BoR as individual rights
But also protecting states from federal intrusion–could be called States' Bill of Rights–more localism than libertarianism.
Congress cannot establish religion, but nothing about states
Local militias protected
Only amendment endorsed by every state was 10th Amend–states repositories of all powers not granted to fed
Specific proposal by Madison to protect rights against states was defeated
Pre-Civil War, SCOTUS only used BoR once to decide a case–Dred Scott
MO Compromise had denied slave-owners rights to their property without due process under 5th Amend.
Barron v. Mayor and City Council of Baltimore, 1833 (p349)
Marshall
Facts
Barron's wharf rendered unusable from silt resulting from city construction.
Sued on 5th Amendment takings ground
Issues
Whether BoR constrains states
Holdings
No
Rules
Default rule = Amendments don't apply to states
Analysis
A1S9-10 demarcates restrictions against states. Therefore frame Amendments as not applying to states unless explicit.
City's diversion of stream deprived Barron of property right.
Argued taking without just compensation contra 5th Amend.
Marshall: no claim against states because BoR only applies to fed
State can deny individual's rights
Textual claim: 5th Amend protects against takings for “public use”, no exclusion of states
But doesn't explicitly restrain the states either.
Difference of default rule
Marshall: A1S9-10 as justification for default rule–Framers delineated limitations on states in articles but not in BoR.
Why choose one default rule over another (when text is ambiguous)?
Constitution sets up structure of fed gov't, so default rule should be that it only applies to fed. If fed wants to restrict the states, it has ways to. Structural argument.
Look at history:
Interpretation prevailed until Civil War.
By the Civil War, it became apparent that state gov'ts represented greatest threat to fundamental rights.
Especially state actions of the South in relation to slavery.
Extremely repressive laws propping up slavery: suppression of anti-slavery speech and preachers, dragnets of suspected escaped slaves, savage punishments, basically violated every right in BoR.
14th Amendment enacted to right pre-Civil War concerns by restricting powers of the states directly.
Authors saw 14th Amend as overruling Barron, Dred Scott.
Slaughter-House Cases, 1873 (p351)
Miller
Facts
NOLA established state monopoly on slaughterhouses.
Butchers suing under 14th Amend
Issues
Whether butchers' right to exercise their trade protected against state by 14th Amend
Holdings
No
Rules
Analysis
Privileges and immunities: if different under state than fed, then those of a state are protected by the state.
Fear of too much judicial/congressional intervention
Dissent
Field: 14th Amend would be mere surplusage if no different from A4S2
A group of butchers challenge monopoly by state.
Claiming butchers being prevented from practicing their trade, 14th Amend claims
Court rejects
Privileges or Immunities (14th Amendment S1)
Substantive protection for privileges and immunities–including right to ply a trade?
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
A4S2: citizens of each state entitled to P&I of citizens of several states. Different bundle of P&I?
Court's fear: too much judicial activism and intrusion upon states.
But Civil War and 14th Amend refuted idea that states should have all sorts of authority to intrude upon individual right
nconstrained judges pose great threat to democracy.
Critique: some great evils not foreclosed by text (slavery)
Fine in late 18th Century when fed gov't powers limited. But as powers expanded in 19th Century, many unenumerated powers–balance with unenumerated rights?
Lochner v. New York, 1905 (p379)
Peckham
Facts
Lochner convicted under NY labor law limiting work day.
Issues
Whether 14th Amendment protects employer's right to contract with employee
Holdings
Yes
Rules
Reasonableness standard for use of police power that infringes on personal liberty?
Analysis
Calls legislative purpose and findings bogus; no deference.
Decides law was passed from other motives.
Dissents
Harlan: Court may merely look at ends-means, not wisdom of policy.
Holmes: Court trying to write laissez faire into constitution
How do we get to Court striking down minimum wage laws?
Many judges received education during Civil War. Freedom of contract strongly associated with abolitionism, in fact was part of critique itself. Restrictions on labor in their view prevented a person from exercising his freedom to work as he saw fit.
Laissez faire economic theory at its height around Lochner: gov't provides certain public goods, regulating monopolies, but no appropriate role in regulating private sector generally or redistributing wealth. Social Darwinism–Herbert Spencer: those sufficiently complete live, and those that aren’t die, and it is well that they should.
Critics: market is a product of gov't action–tort, contract, property law. “This man-made world of ours.” – FDR. Man could change it to make it more fair, just, etc.
Justifications for NY Law
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