DUE PROCESS
I. Intro – Due Process – 5th Amendment (federal gov’t cannot deprive anyone of due process of law) and 14th Amendment (requires same of the states)
A. Procedural vs. Substantive Due Process
1. Procedural – Procedures gov’t has to undertake before it can deprive you of life, liberty or property.
2. Substantive Due Process – not concerned w/ fairness of procedures/ Things that the government just can’t deprive people of, no matter how fair the procedures;
B. , Barron v. Mayor and City Council of Baltimore (8 L.Ed. 672 (1833)
1. FACTS: City made a deposit of sand in the harbor, Barron couldn’t operate his business. Claimed that city had violated 5th Amendment takings clause; violation of his right of due process.
1. HOLDING: BOR Amendments pertain only to national government unless the amendments says otherwise, not applicable to state or local government.
C. Civil War Amendments (13th, 14th, and 15th) –Due Process as applicable to the states
1. 13th – Abolishes Slavery in the U.S. or any place subject to its jurisdiction.
2. 14th – (3 years later)
a. Sec 1. – all persons born here are citizens of the country and of the state they reside; privileges & immunities, due process, equal protection.
b. Is the amendment that gave rise to due process as applicable to the states and gives the Equal Protection Clause?
3. 15th Amendment – guarantees the right vote regardless of race, color or previous condition of servitude. (not be denied by the US OR ANY STATE)
4. Importance: Each EXPANDED CONGRESS’ ENUMERATED POWERS. Changed the BOP between the national and state gov’t and provided constitutional basis for FEDERAL LEGISLATION UNDER THESE AMENDMENTS (i.e., Sec. 1983 claims)
D. Slaughter House Cases (1873) (Overruled Baron v. Baltimore)
1. FACTS: law creating a slaughterhouse monopoly. Butcher’s had to pay to slaughter cattle with this company. Claimed that state created monopoly violated their rights under the 13th and 14th Amendments.
2. HOLDING: No violation the amendments. (13th) – 13th was only the prohibition of slavery and involuntary servitude, must be interpreted in the context in which it was enacted. We know meant to end slavery of AA’s.
3. HOLDING: (14th) Privileges & Immunities – those that go with U.S. citizenship. Doesn’t protect privileges and immunities of state citizenship.
a. Reasoning: P’s claim fall outside of the scope of the 14th and 13th
b. Due Process claim doesn’t work either, because this isn’t “life liberty or property” – doesn’t fit to what they’re trying to protect under the DP clause.
c. Equal Protection? It’s only meant to extend to African Americans – have to interpret it as about race discrimination, NOTHING ELSE.
4. VERY NARROW INTERPRETATION – RELIES HEAVILY ON THE HISTORICAL CONTEXT.
a. Historical context tells drafter’s intent. B/c we know the historical context of the CW
– Individual rights v. states police power
II. RATIONAL BASIS SCRUTINY V. STRICT/HEIGHTENED SCRUTINY
A. RATIONAL BASIS – Law must be RATIONALLY RELATED to a legitimate governmental interest.
1. Applied today to socio economic and DP clause laws.
2. LOWEST LEVEL of scrutiny and default level of scrutiny, unless there is reason to apply some other form of scrutiny. Used for nearly everything.
B. STRICT/HEIGHTENED SCRUTINY
1. – rooted in Footnote 4 of the Carolene Products case and in rights not specifically enumerated in the Constitution. In certain instances, a less deferential standard of review than rational basis scrutiny will want to be used.
2. Must be NARROWLY TAILORED TO A COMPELLING GOVERNMENTAL INTEREST (not just rationally related or not just a legitimate government interest).
a. Strict scrutiny is a much higher burden/standard of proof
3. When a law might use strict scrutiny include when it:
Burdens the rights enumerated in the Bill of Rights – “There may be a narrower scope for operation for the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of
