Overreading v. under reading the constitution
Is this a facial or as-applied challenge, could both be made?
How are you going to get the benefit of the court at each step, in determining the scrutiny level, framing the right, defining the classification, applying the scrutiny level – every step of the decision tree can be a chance for your side to win
Due Process, Privileges & Immunities, and the Incorporation Controversy
· Privileges and immunities clause – No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
· Initially no incorporation per Barron v. Baltimore– this was before the 14th amendment and about takings clause applying to states
· Ct. says it’s obvious b/c the Constitution as a whole applies generally to the fed. Gov’t., when it applies to the states it specifies that in text.
· Textual, structural arguments – also say that this is bolstered by original understanding that the Const., B of R, was about the fed. Gov’t. unless specified
· Then came Slaughterhouse Cases – the first cases to look at the 14th privileges and immunities clause under the 14th amendment
· Ct. says: Amendment, in terms of historical understanding, fundamentally about slavery – does NOT create new set of “national citizen” rights to invoke against states. That would reorder the national/state relationship.
· Text/structure: distinguishes 14th am. P&I clause from art. 4 … latter is about P&I of “state” citizens, former about P&I by virtue of being a citizen of the U.S. if latter were as broad as former
· It does not fundamentally reorder the relationship between federal courts/govt. and states
· Counter arguments to this reasoning
o I doesn’t this make P & I clause superfluous?
o Historically, Civil War WAS about fundamental reordering of state/fed. relationships.
§ Aftermath partly about notion that states can violate liberty just as can the fed. gov’t.
o Also counter to textual point is simply that the clauses are indeed very broad and intuitively significant.
§ Plus, existence of precedent re. Art. IV p & I clause most intuitively should carry over to meaning of 14th Am. P & I clause.
· Then came Palko – incorporating through DUE PROCESS clause rather than P&I – begins selective incorporation
· P & I effectively a dead letter after Slaughterhouse
· The very idea that life/liberty can’t be taken away w/o due process, there is an implied concept of fundamental fairness in DP clause
o So the questions becomes: What is fundamental/essential to fairness?
o What does fundamental fairness demand – does it demand incorporation of a particular right?
· Cardozo: what is essential to “ordered liberty,” – takes a somewhat searching approach
o “whether a fair and enlightened system of justice . . . is impossible without” the right at issue
· Roots this question in “traditions and conscience of our people” – what the western world sees as fundamental
o Where to look for this – state constitutions, historical statements of founders, maybe even bill of rights itself, English tradition, natural law
· Subsequent approaches to Incorporation
· Adamson v. CA (1947): Majority followed Justice Cardozo’s approach to incorporation to find 5th Amendment self-incrimination principle inapplicable to states in proceeding at issue.
o Black dissent: Full incorporation is required by all prongs of the 14th Am., s 1. Relies on history;
§ Cites dangers when federal judges engage in what he deems subjective philosophizing about what rights are fundamental.
· Ongoing debate on two levels btwn justices, part. Frankfurter v. Black on what 14th amend means (1) as a matter of text AND (2) with regard to judicial activism
· Duncan v. LA 1968: Incorporation of 6th Amendment right to jury trial for crimes subject to imprisonment of a certain length?
o Majority, J. White:
§ Yes, right is incorporated. Effectively says essential to liberty b/c helps deter arbitrary decision-making, etc.
§ Says this is the view of American tradition as evidenced by U.S. Const., state constitutional protections
o Harlan, dissenting:
§ Essentially takes a narrower view of the ordered liberty / tradition rationale, says that it is possible to have a fair trial w/o a jury trial, that many western examples exist.
· Heller Arguments with regard to Incorporation of 2nd amendment
o Scalia: focuses on operative clause, says straightforward text = individual right, says prefacing clause just sheds light on reason for codifying the right – if people have arms they can have them at the ready when state militias called into service
o Stevens: basically says J. Scalia ignores the military context in the text and the history – was about state militia needs at the time
o Pro Incorporation
§ If individual right, makes sense to apply against the states
§ Can draw on J. Scalia’s historical analysis – “essential to liberty?”: yes, gun is ultimate backstop protection if all else fails
o Anti-Incorporation
§ Last ditch effort protection, not ESSENTIAL.
§ Not essential to ordered liberty b/c cannot possibly be a very robust right in light of the obvious many strong state interests to curtail it. [THOUGH THIS QUESTION GETS EVEN MORE TO THE QUESTION OF THE RIGHT’S DEFINITION, WHETHER IT’S INCORPORATED OR NOT]
§ Historical / traditions argument – might draw on materials (laws existing at time 2nd amendment drafted and ratified, state constitutions, etc.) to argue that there is not sufficient national, historical consensus on the right
· Where this leaves us with un-enumerated rights
·
te – this is a policy debate rather than a constitutional dictate.
· Nebbia v. NY – Court upholds limitation on state milk price law
· Right – economic liberty, but court says that it is NOT fundamental right – should get some level of review but not to the level of today’s strict scrutiny
· ENDS – health
· MEANS – reasonable enough to see connection btwn pricing, farmer stability, and public health with regard to milk production
o Court – reasonable minds might disagree, but that’s OK since this doesn’t call for strict scrutiny
· Hypo of how to strike down this legislation under Lochner
o Liberty/right – freedom to contract (contract for prices between customers and retailers),
o Ends – public health, safety, protecting the milk supply (by protecting ability for farmers to get a good price)
§ Could argue Protectionism for farmers intrinsically illegitimate
o Means – Fit with public health is questionable, just makes it harder for public to buy milk, could ultimately hurt public safety
· Williamson v. Lee Optical – Law prohibiting opticians from fitting lenses w/o prescription from optometrist/opthamoligist
· Court – ENDS could be public health, which is a legitimate end
· MEANS – reasonable on a number of bases – such as it will encourage people to get more eye exams since they have to get one for prescription – sometimes prescriptions with special instructions are needed for certain frames
o Court – basically applies rational basis – NOT whether there WAS a rational basis, BUT COULD there conceivably have been one
§ RATIONAL BASIS – Law Passes muster if ANY legitimate interest (ENDS) COULD EXIST that is rationally related to the MEANS employed –
§ RATIONAL BASIS – Is the law rationally related to some conceivable (brainstormed) legitimate state interest?
· Non-arbitrariness principle – It is part of due process principles that can’t arbitrarily create laws – this is how they can protect rights from a mere due process clause
· Why have rational basis at all? – Court basically saying at a minimum CANNOT be ARBITRARY
· Types of arbitrariness
o Law purports to be justified legitimately (such as a health measure), BUT can’t measure up even to rational basis review
