Constitutional Law II Outline

Individual rights-5th and 14th amendments Due Process
 
Due Process – 5th Amendment (federal gov’t cannot deprive anyone of due process of law) and 14th Amendment (requires same of the states)
o   Procedural v. Substantive DP.
Procedural-Procedures gov’t has to undertake before it can deprive you of life, liberty or property.  Focus on process afforded by government before right deprived
Issue is whether process itself satisfies the Constitution
Substantive DP-not concerned w/ fairness of procedures. Things that the government just can’t deprive people of, no matter how fair the procedures; Focus on nature of right being deprived (Gov’t murders free citizen) Issue is whether government justifies the rights of citizen
 
o   Barron v. Mayor and City Council of Baltimore (1833)
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.
HOLDING: Bill of Rights Amendments pertain only to national government unless the amendments says otherwise, they are not applicable to state or local government.  
Amendments were drafted and approved by the representatives from the individual states; nothing in the language makes them applicable to the states, so the court felt it was powerless to make it so. 
o    Civil War Amendments-13th, 14th, and 15th-DP in relation to the states
13th – Abolishes Slavery in the U.S. or any place subject to its jurisdiction.
14th – (3 years later)
Sec 1. – all persons born here are citizens of the country and of the state they reside; privileges & immunities, due process, equal protection.
Is the amendment that gave rise to due process as applicable to the states and gives the Equal Protection Clause?
15th Amendment – guarantees the right vote regardless of race, color or previous condition of servitude. (not to be denied by the US OR ANY STATE)
Importance: Each EXPANDED CONGRESS’ ENUMERATED POWERS. Changed the Burden of Proof between the national and state gov’t and provided constitutional basis for FEDERAL LEGISLATION UNDER THESE AMENDMENTS (i.e., Sec. 1983 claims)
 
o    Slaughter House Cases (1873) (Overruled by Baron v. Baltimore)
§ 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.
HOLDING: Does the law violate the 13th amendment? 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 the 13th amendment was meant to end slavery of AA’s.
HOLDING: Does the law violate the privileges and immunities clause of the 14th amendment? (14th) Privileges & Immunities – those that go with U.S. citizenship. No, Doesn’t protect privileges and immunities of state citizenship.
Reasoning: P’s claim fall outside of the scope of the 14th and 13th. These amendments only protects privileges and immunities of the U.S. citizenship (going to the seat of gov’t, seek its protection, using seaports, peaceable assembly etc)
Does the law violate the Due Process Clause of the 14th amendment? NO, 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.
Does the law violate the Equal Protection Clause of the 14th amendment? It’s only meant to extend to African Americans – have to interpret it as about race discrimination, not owners of slaughterhouses from slaughterhouse monopolies.  
VERY NARROW INTERPRETATION – RELIES HEAVILY ON THE HISTORICAL CONTEXT.
Historical context tells drafter’s intent. B/c we know the historical context of the Civil War and slavery, we know of what they were thinking.
Justice Bradley –We assume the drafters chose the language not mentioning race on purpose –intended them to go BEYOND specific protections of just the historical context. 
o   Saenz v. Roe (1999) (limiting maximum welfare benefits to newly arrived residents) Three components to protected “right to travel”
Citizen of one state can leave and enter another state
Citizen has a right to be treated as a welcome visitor rather than an unfriendly alien while temporarily present in the second state
Citizens who choose to become permanent residents of the second state have a right to be treated like other citizens of that state
Congressional approval of durational residency requirements does not save the residency requirements from being unconstitutional
 
o   Substantive Due Process and Economic Regulation
Governmental deprivations prohibited by the due process clause regardless of procedural due process protections
Found in both 5th and 14th Amendments
How the Court views property has a lot to do with how the court views due process
·         Calder v. Bull (1798) – beginning of a willingness to entertain arguments based on natural law. Written constitution is not the initial source of fundamental rights, but a re-affirmation of a social compact preserving preexisting fundamental rights
·         Mugler v. Kansas (1887) – court announced that it was “prepared to examine the substantive reasonableness of state legislation;” not every statute enacted ostensibly for the promotion of public morals, health, or safety would be accepted as a legitimate exertion of state police powers
 
Economic Substantive Due Process
– deprivations prohibited by the DP Clause regardless of how fair the state’s procedures are that relate to economic rights. 
Economic rights and powers permeate the constitution. Congress’ enumerated powers have a lot to do with private property (Commerce Clauses, regulate bankruptcy, etc.)
Takings disallowed without just compensation. Property rights and economic liberty play a key role
o   Lochner v. New York (later overruled by the court, recognized )
§ FACTS: NY state law limits the hours of bakery employees – Lochner convicted for allowing employees hours to exceed the state law.
§ ISSUE: What rights is being deprive by gov’t? Right of contranct
Is government justification sufficient to satisfy DP? Is the right absolute? Or can gov’t infringe? What level of justification reuired for gov’t infringement?
HOLDING: Lochner was deprived of liberty and/or property and the state law (NY) was a violation of Due Process under 14th Amendment.
REASONING: “Freedom of Contract” àThe majority viewed the right at issue as a liberty right, which is how the court connected it to the DP clause. à The Concept of “Liberty” infers the freedom of contract, which was the right of Lochner’s that was violated here. DP clauses’ protection of liberty protects a variety of liberty interests, and one of those is the freedom to contract.  Does the right of freedom is absolute right protected from the Gov’ts interference? Nowhere is this right expressly enumerated in the constitution. 
Lochner doesn’t have an absolute right to contract – some gov’t regulation will be allowed under the constitution, but the State CANInfringe on that freedom to contract ONLY FOR LEGITIMATE STATE PURPOSES
What would be a possible legitimate state purpose?
Health of the workers/bakers-majority isn’t persuaded; if you can limit bakers’ hours, the slippery slope argument suggests that any occupation can be regulated in terms of hours. 
Protection of the public-this argument is arbitrary; whether the bread is wholesome is not dependent on how long the bakers work.
The state’s police power IS NOT ABSOLUTE –Even when state is exercising the Police powers, it cannot deprive w/out DP.
Means-ends test is applied (means is the law and the ends is the health of the citizens
Redistribution of bargaining power might justify legislation
There is no evidence that the bakers had disparate bargaining power. 
Paternalism might justify the legislation-court found no contention that bakers weren’t able to protect their own interests. 
Competing State interests (state police power v. individual right to contract) is resolved by determining whether the exercise of police power is necessary and reasonable
§ Potential criticisms Lochner (how the court misconstrued the Constitution)
Court didn’t construe liberty correctly (should have viewed liberty to mean only freedom from physical restraint)
Due Process clause only entitles individuals to fair procedures
“Freedom to contract” is not included in liberty
The state was justified in overriding the freedom of contract by regulating bakers’ hours
To protect workers’ health
To make equal the bargaining strength of employers and employees
To protect residents, even paternalistically
It should not be the role of the Court to second-guess the states (the state legislature is in the best position to decide)
 
§ Two types of criticism of Lochner
1.      Interpretation of word ‘liberty’ – narrowly, freedom from physical constraint / Should liberty encompass other rights?
2.      Interpretation of “due process of law” – narrowly, right to process rather than right against unjustified deprivation / Should “due process” entitle us to more than certain procedures prior to deprivation?
 
Institutional – Court shouldn’t indulge in this type of judicial activism
Court is finding unenumerated rights in the Constitution … impermissibly stretching the Due Process clause to fit this situation
Counterargument – Constitutional law is unclear (see the Necessary and Proper clause) … if it was always straightforward, we would have answered all of the questions already
Substantive – no problem with the Court deciding this issue, but it decided this case the wrong way (should have upheld the law as a justified state statute)
Criticizes the decision, not the idea of substantive due process
 
 
Standards of Review(Rational Basis/Strict Scrutiny)
 
o   Rational Basis Scrutiny-The Lochner Court used this. This is the means-end approach Law must be rationally related to a legitimate government interest. 
The law (means) must be rationally related to a legitimate gov’t interest (end)
Applied today to socio economic and DP clause laws. LOWEST LEVEL of scrutiny and default level of scrutiny, unless there is reason to apply some other form of scrutiny. Used for nearly everything.
 
o   Strict/Heightened Scrutiny-– 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.
Must be NARROWLY TAILORED TO A COMPELLING GOVERNMENTAL INTEREST (not just rationally related or not just a legitimate government interest).
Strict scrutiny is a much higher burden/standard of proof
3 scenarios when a law might use strict scrutiny:
When legislation on its face appears to be w/in a specific constitutional prohibition such as the bill of rights. (ex of gun control) 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 the Constitution, such as those of the first ten Amendments which are deemed equally specific when held to be embraced within the 14th….”
Where the law infringes upon a specific guarantee of an individual right, rational basis isn’t enough – before we’d allow a state law to infringe upon a specific right embodied in the Bill of Rights.
When legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation. Example of restricting citizens rights to vote. Burdens the right to vote/participate in the political process. “It is unnecessary to consider now whether legislation which restrict those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation, is to be subject to a more exacting judicial scrutiny under the general prohibitions of the 14th Amendment than are most other types of legislation…”
If the states passed a law saying that some people couldn’t vote – Justice Stone said that we need to look at laws that restrict the political process more closely
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