14th Amendment Hawley Spring 2014
Introduction
The Fourteenth Amendment Today
Perry v. Brown
· Facts
o Same sex marriage case out of California following the adoption of Proposition 8
· Parts of 14th that can be argued as protecting gay marriage
o Equal Protection Clause & Due Process Clause
· Arguments against right to gay marriage
o No fundamental right to marriage in general means no substantive due process
o Everyone is still guaranteed right to opposite sex marriage
· Holding
o No rational basis
o Took away a right that previously existed & there was no rational basis to do so & only did so to single out & penalize on basis of sexual orientation
o Did NOT hold that it is a violation of 14th amendment to define marriage as between man & woman
· Dissent
o Smith says rational basis is “optimal parenting” and fundamental & historical purposes of marriage – long standing interest in parenting, not directly but indirectly referring to state’s long standing tradition of passing morals legislation
o Oscannlain – says that they are overruling the will of CA voters based on an incorrect reading of Romer – constitution doesn’t directly speak to this issue and so the will of people should standing
Adopting the 14th Amendment
Dred Scott
· Written by Taney
· Issues
o Is there diversity jurisdiction à Is he a citizen?
o Can Congress prohibit slavery in the territories?
o Is Missouri bound to follow Illinois or Wisconsin law?
· Is there diversity J?
o No diversity J in federal court because DS isn’t a state citizen
o Cannot be a state citizen without first being a national citizen – slaves could never be US citizen under the constitution
o Taney defines national citizenship as those who are a member of the body politic or descended from someone in the body politic…aka white people & Native Americans
o Taney’s claim is that persons of African descent were not parties to the compact of the United States & since they weren’t parties to original compact they can never be national citizens
o Taney’s claim is Congress can not naturalize Dred Scott by an act of Congress because they CAN NEVER be national citizens
o Taney’s holding guts diversity jurisdiction because diversity J is supposed to depend on citizenship in the states not national citizenship
· May Congress prohibit slavery in the state?
o Shouldn’t have been ruled on since he had just ruled no jurisdiction
o Missouri Compromise declared invalid, Congress doesn’t have power to prohibit slavery in the territories
o Taney’s reasoning here is that when territories are admitted & Congress governs them, Congress can’t govern them unconstitutional – i.e. can’t says “Well in Missouri you can’t set up a church” or “In Missouri you don’t have free speech” – all of the constitutional restraints apply to governing the territories
o Clauses of constitution recognized property rights of slave owners & therefore can’t outlaw the rights of slave owners – seems to insinuate that slavery is a constitutional property right
o There’s a substantive component to your right to property – some interests that are so fundamental that they cannot be taken away by the government regardless of the process you receive – essentially Taney is saying slave holding is like a fundamental right, to take it away from them would be to treat them like they’re under colonist rule power – on this basis he strikes down entire Missouri Compromise
· Is Missouri bound to follow IL or WI law?
o No they are not
· Is he wrong as matter of law
o There is no body of law that says African-Americans aren’t national citizens
o Multiple states allowed free blacks to vote, sue & be sued, etc.
o Southern states had tried to restrict citizenship to white people under Articles & it was voted down – Taney ignored this party of history as well
o Almost all of his arguments have a surface appearance of plausibility but once you push further his arguments aren’t even in good faith – it’s either he wasn’t acting in good faith or he was just a very bad lawyer
Phillip Bobbit, Constitutional Fate
· Sets out modalities of constitutional interpretation
· Six Modalities – 1) Historical Argument; 2) Textualism; 3) Doctrinal Argument; 4) Prudential Argument; 5) Structural Argument; and 6) Ethical
· Historical Argument
o We are bound to follow the constitution, implicit claim about what law is, there is a contract between the people & the government
o This is internal to the idea and principle of law – the law means what it means at the time it was written otherwise it really isn’t law
o Taney’s principle method of determining African-Americans were not national citizen
o Problems
§ The constitution wasn’t really an agreement between all of the people, how do prioritize between the historical understanding between varying groups of actors
§ What sources to view (Taney used drafts, colonial law, social norms, other state constitutions, etc.) – there’s often conflicts between these sources, which sources do you use?
· Textualism
o Takes plan & contemporaneous meaning of the text & words
o Looks to letter of the law – not what did drafters mean BUT what did the drafters actually write
o Scalia is a textualist with historical integration
· Doctrinal Argument
o Loosely called the “rule of law”
o Depends on two clear distinctions
§ Legislative Policymaking must be distinguished from judicial rule-applying
§ Judicial rule-applying must be a reasoned process of deriving the appropriate rules and of following them in deciding a practical controversy b/twn adverse parties, w/out regard to any fact not relevant to the rules
o Taking past and applying it to the present
o Rule application to present problems
o Realist critique – a judge will rule however he wants to & just finds a modality that will fit in with their reasoning & so judges are really just making up the rules as they go along
§ In some ways, these modalities are a response to this critique
o This looks much more flexible and open-minded – if judge follows a reasoned, principled process even though he/she will announce a new rule it can still be neutral
· Prudential Argument
o Looks to balance the equities in any given case
o Brandeis chief proponent of this – Brandeis Brief – give court huge amount of factual data to show the court what will happen if they rule a certain way, intent is to get the court to understand the real world effect of a decision
o Prudential argument is constitutional argument actuated by political & economic circumstances surrounding the decision
o In times of national emergency, even the plainest of constitutional limitations can be ignored
o Ashwander Doctrine
§ If the court can decide on non constitutional grounds then it should do so
§ Prudentialists don’t want to lock decisions into place & when you decide on constitutional grounds you lock things into place
o CJ Roberts has emerged as strong prudentialist
· Structural Argument
o Based on inferences on relationships between federal & state governments in constitution
o Prinz was a structural argument case
o Second half of NFIB case – it would offend state sovereignty if they were binding
o Most of recent S. Ct. decisions are structuralist
· Ethical Arguments
o Area of law that is left out of other modality reasoning
o Focuses – Is it natural law? Is this right or wrong?
o Pneumbras plus argument – we supply the tune but the next line is written by us – we determine the rest
o This isn’t morality, it is “conventional morality” – what rights are implied in the ethos/shared values as a people (and our shared values will change over time & that’s okay)
o Problem – interpretation of constitutional ethos is open to various readings
Early Interpretations
The End of the Privileges and Immunities
Civil Rights Act of 1866
· Attempt to enforce 13th Amendment & go further than that
· Act was controversial in the various views of what “civil rights or immunities” actually means
o Civil Rights – make and enforce Ks, own property, etc.
o Political Right – hold office, vote, participate on juries
· Second controversy – did 13th amendment authorize the passage of such a bill? 13th was seemingly just about the abolition of slavery (said Congress shall have authority to pass legislation to enforce the 13th)
· Big problem created – slaves no longer counted as 3/5 so South’s population increases dramatically & so their representation could substantially increase right away & they could come to control Congress – Radical Rs that had just won the war thought they were in a race against clock before South returned to Congress & they wouldn’t be able to pass any meaningful legislation
o Initially Rs refused to reseat the returning delegates
o This is why they are in haste to get 14th passed & why they make it a precondition for readm
to Rhode Island as it does to Alabama – is it overbroad
o 14th Am. Only Reaches State Actors
§ Hook for this language – “No STATE shall…”
§ Distinction b/twn civil rights & social rights – civil rights are rights against the gov’t (i.e. right to serve on jury, right to buy/sell land, right to own property) – individual can’t deny you those things, individuals can assault you or try to prevent you from going to courts but those are torts (wrongs against you)
§ If an individual tries to deprive you of civil rights then there’s separate remedies (i.e. tort) to prevent or enforce that
§ But is this really completely private activities – dissent point this out – gov’t entanglement into several of these activities, is the activity state sanctioned if they do not prevent the actions? All of the entities at question here are common carriers – license to serve the public generally
· Case begs the question – who are state actors?
· Dissent
o 14th Am. bestows rights onto citizens regardless of race – gives citizenship to all regardless of race & gives them equal rights & therefore Congress has the right to legislate to guarantee that the right to citizenship is real and meaningful
· Shelly v. Kramer
o Judiciary enforcing a K makes it a state action – the K itself is not state action but when the judiciary enforces the K it is a state action
Katzenbach v. Morgan
· Concerned Voting Rights Act of 1965 – NY had statute that said must be able to read & write English (literacy test) – Voting Rights Act says if you’re a Puerto Rican who successfully passed 6th grade you can vote
· Question – Can Congress use its 14th §5 power to prohibit certain state action before state action is declared as unconstitutional
· This case allowed Congress to legislate & declare unconstitutional a state law before the judiciary had a chance to rule on it – does the power to enforce maybe also include the power to interpret
· Brennan – Power of the Congress under §5 is a grant of power that is the equivalent of the necessary & proper clause – Congress can define, fill in, interpret what §1 means
· Problem here – Laasiter decision held that English literature tests like this are constitutional – so can Congress go ahead and legislate in advance even though the law they are “correcting” is not unconstitutional?
· Brennan is unclear which rationale he’s resting on – is he saying Congress allowed to sweep in & prohibit constitutionally permissible action in order to prevent later 14th amendment violations or is the rationale a necessary & proper one where Congress has the right to define §1 and ask for a rationale basis review
· Boerne case brings in sharp relief the question of what if judiciary takes different view than Congress
City of Boerne v. Flores
· Local zoning authorities denied church a building permit – was challenged under Religious Freedom Restoration Act of 1993
· RFRA was enacted in direct response to the Court’s decision in Employment Division, Dept. of Human Resources of Ore v. Smith, 494 U.S. 872 (1990)
o Gov. employments had been fired for ingesting peyote which they did as part of Native American Religion (was a sacrament) – S. Ct. said that if a statute is facially neutral (not intended to discriminate) & generally applicable (doesn’t carve out certain groups) then doesn’t matter if it substantially burdens free exercise of religion
o This was 14th Amendment cause it applied to all levels of government – it could have just applied this to federal governments just fine – Congress can only reach the states & local governments with its laws if it can point to some authority in the constitution
