CONSTITUTIONAL LAW II
MORRISON
SPRING 2012
I. Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
· Absence of individual liberties in the constitution attributed to framers thinking that enumeration of rights was unnecessary b/c constitution created a government with limited powers.
o Only what government can’t DO – NOT listed as to what they must do
o Intentional incompleteness of constitution, therefore, does not deny protection just because those Individual rights were not listed.
o Constitution deals mainly with Federal and State Rights – NOT individual rights
· State Action Doctrine: Application of constitutional rights to private entities. Basic tenet of doctrine is that such rights only apply to the government; private entities and individuals are not required to comply with the constitution.
o 14th Amendment:
o To protect basic rights from State interference AND
o “privileges and immunities of US citizens are chiefly defined in the first 8 amendments to the constitution.
o BUT the historical claim that P and I clause was meant to apply the Bill of Rights to the states is very much disputed.
§ CON: P and I clause incorporated Amendments I to VIII has no recognition in the practice of congress or the action of state legislatures b/c constitutional conventions, or courts, congress would not have attempted such a thing, the country would not have stood for it, and the legislatures would not have passed it.
§ PRO: On the other hand, provisions of Bill of Rights are the basic P and I possessed by all citizens [Settled in Slaughterhouse Cases below]
o Cases:
o Barron v. Baltimore
§ Does bill of rights apply to state and local governments.
§ Issue: Does the takings clause of the 5th Amendment apply to the city of Baltimore when it ruined an individual citizen’s wharf property by diverting water and creating shallow basin not traversable by boats?
§ Plaintiff: 5th Amendment applies b/c it inhibits the taking of private property for public use without just compensation. Applies when state and local governments are involved.
§ Court: 5th must be understood as restraining the power of the general government, NOT as applicable to the states.
· Amendements demanded security against the apprehended encroachments of the general government – NOT local government.
· Amendments have no language to suggest application to the states
· Intended soley as a limitation on the exercise of power by the US government – not legislation of states.
§ Comments: Barron made sense because faith in State constitutions and shared understanding that Bill of Rights was meant to apply only to the federal government.
i. States were allowed, and the court agreed to be continued to operate as such, to protect its own citizens.
§ Class
· Concept of 2 types of citizenships that were limiting [state v. fed]
· Bill of Rights applied initially only to the Federal government
· Slaughterhouse Cases
§ Facts and Issue: Louisiana legislature passed law that gave monopoly, required Cattle Company allow any person to slaughter animals in the slaughterhouse for fixed fee. Several butchers brought suit arguing that the state law impermissibly violated their right to privacy of trade and invoked provisions of constitutional amendments: restriction created involuntary servitude; deprived them of their property without due process of law; denied them equal protection of laws.
§ 13th Amendment: rejects argument that creates involuntary servitude
· because it would be a stretch to call restricted work in one slaughterhouse as slavery.
§ 14th Amendment : Only citizen of the US (not citizens of States) are placed by 14th amendment under protection – State citizens are not intended to have additional protections. Passed to protect rights of slaves as national citizens.
· Limiting or restricting legislative power of the states would constitute a perpetual censor upon all legislation of the States on behalf of Fed. Government. Too far-reaching, pervasive, and serious and great departure from US founding principles.
· No such results were intended by congress in passing amendments.
· Sourced from article IV of constitution and nondiscrimination of citizens
§ Due Process: Defendant’s law deprives plaintiff’s of property without due process.
· Court rejects right to protect one’s trade
i. [later this is overturned and now comes to apply to safeguard rights to marry, custody of one’s children, abortion, contraceptive use]
§ Equal Protection: Clause was only meant to protect blacks – court predicts can never be applied elsewhere. Rejected by the court b/c about slavery not about butchers.
§ Dissent:
· If inhibition, as majority holds, of this law does not implicate the privileges and immunities clause then the passing of the amendment was completely unnecessary.
§ Saenz v. Roe = Court uses P and I Clause to invalidate state law for essentially the first time
· Issue: Is right of newly arrived citizen entitled to same privileges and immunities enjoyed by other citizens of the same state [case dealt with welfare law passed by the state that capped the length new residents could receive benefits]
· Court
i. Clause protects right to travel – unequal treatment b/c it is a constitutional right to travel infringes citizens right to travel
ii. New citizens have two political capacities: (a) state and (b) federal
iii. State argues
4th amendment and the Court’s 1908 decision earlier in Twining
§ Duncan v. Louisana
· Do the 6th [right to travel] and 14th amendments guarantee the right to jury trial in state prosecutions where sentences as long as two years may be imposed?
· Court noted the right to a jury trial for criminal offenses is a deeply enshrined value in both the British and American legal traditions. Meets the test of being “deeply rooted in this Nation’s history and tradition.” Right to a jury trial in criminal cases is within the 14th Amendment, and therefore is applicable to the states.
· Court examined whether an offense subject to two years imprisonment is a “serious offense.” Majority noted that at the time of ratification, crimes punishable by more than six months imprisonment were typically subject to jury trial. Furthermore, both federal law and forty-nine states recognized that a crime carrying a sentence of over one year necessitated a jury trial. Court found that the Louisiana law was out of sync with both the historical and current standards of the justice system and was therefore ruled unconstitutional
i. Note: era of expanded individual rights
In DC v. Heller – SCOTUS held 2nd amendment NOT limited to protecting right to have firearms for militia service BUT does protect right individual’s right to have guns for self protection in the home.
McDonald v. Chicago – 2nd Amendment applies to state and local governments AND incorporation via Due Process Clause accomplishes this. THOMAS would have used Priv. Immunity Clause.
· Holding: 2nd Amendment is fully applicable to the states
· ISSUE: whether 2nd amendment is incorporated under due process
o Is it fundamental to OUR liberty
o Deeply rooted in country’s history and tradition?
· Chicago argues:
o Laws are constitutional b/c 2nd Amendment does not apply to the states AND
§ That rights apply to the State ONLY IF that right is indispensable of ANY civilized legal system
§ Since there are civilized countries that ban private possession, due process does not prevent such measures.
o Law has left them vulnerable to criminals
§ Stats of city show murder rate has actually increased since ban was enacted
