Con Law II
Semitsu, Spring 2011
Part I: Constitutional Decisionmaking; Legal Theories of Interpretation
13th Amendment:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
14th Amendment:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[Equal Protection Clause]
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[Substantive Due Process Clause]
15th Amendment:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Equal Protection Claim
Substantive Due Process Claim
Why does she get candy and I don’t?
Why can’t I have candy?
Equality ® EPC
Liberty ® SDP
Discrimination based on a class ® EPC
Denial of a fundamental right ® SDP
Laws treat groups differently
Laws treat everyone the same
Chapter 1: A Prologue on Constitutional History
Prigg v. PA (U.S. 1842): States are bound by the original constitutional deal regarding slavery.
· Facts: During the year of 1832, a black woman named Margaret Morgan moved to Pennsylvania from Maryland, where she had once been a slave to a man named John Ashmore. In Maryland, she had lived in virtual freedom but had never been formally emancipated. Ashmore’s heirs eventually decided to claim her as a slave and hired slave catcher Edward Prig to recover her. On April 1, 1837, Edward Prig led an assault and abduction on Morgan in York County, Pennsylvania. They took Morgan to Maryland, intending to sell her as a slave (her children, one of whom was born a free citizen in Pennsylvania, were also captured and were sold). Prig was convicted under a Penn law and appealed the conviction based on theory that Penn law is unconstitutional [Constitution, Article IV § 2[3] allows a slave owner to reclaim a fugitive slave from a free state].
o Penn law was designed to prevent bounty hunters from stealing free person or emancipated slaves from kidnapping these people and returning them to the south
o Law said that if they were going to take the slaves away, they couldn’t use force (some level of due process, more heavily regulated)
· Issue: Are PA’s restrictions on recovering fugitive slaves constitutional or valid in light of the fugitive slave clause or the federal fugitive slave statute?
· Holding: The Court enforced the fugitive slave clause and prevented Northern states from protecting escaped slaves.
o The Fugitive Slave Clause “manifestly contemplates the existence of a positive, unqualified right” of reclamation.
o The Constitution prohibited states from interfering with the return of fugitive slaves. The Court said that the fugitive slave clause “was so vital…that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed.”
o “…The owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave.” Likewise, the Court also held that states could punish those who harbored fugitive slaves.
· After Prig, slavery is no longer a creature of state law – This whole compromise that has been set up is essentially destroyed
Dred Scott v. Sanford (U.S. 1857): the S. Ct. declared the Missouri Compromise unconstitutional and broadly held that slaves were property, not citizens
· Facts: Dred Scott, a slave owned in Missouri (a slave state) by John Emerson, was taken into Illinois, a free state. After Emerson died, his estate was administered by John Sanford, a resident of New York. Scott sued Sandford in federal court, basing jurisdiction on diversity of citizenship, and claimed that his resident in Illinois made him a free person.
o His owner knowingly brought Dred Scott into a free state and knew that this effectively freed him
· Issue: Does the Court have jurisdiction? (Is Dred Scott able to sue in federal court?)
o “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all of the rights, and privileges, and immunities, guarantied by that instrument to the citizen?”
· Holding:
o The Court held that slaves were property, not citizens, and thus could not invoke federal court diversity of citizenship jurisdiction. (“We think they are not, and that they are not included, and were not intended to be included, under the words ‘citizens’ in the Constitution”)
o The Court further declared the Missouri Compromise unconstitutional.
§ The Supreme Court ruled that Congress could not grant citizenship to slaves or their descendants; this would be a taking of property from slave owners without due process or just compensation.
§ The Court concluded: “[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution …[I]t is the opinion of the court that the act of Congress which prohibited a citizen
o “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
o “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States …” (referring to the Chinese)
Missouri ex rel. Gaines v. Canada (U.S. 1938)
· The S. Ct. held that it was unconstitutional for Missouri to refuse to admit blacks to its law school, but instead to pay for blacks to attend out-of-state law schools.
· The Court explained that the “basic consideration is not as to what sort of opportunities other States provide, … but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color.” In response, Missouri did not admit blacks to its law school, but instead created a new law school for blacks.
Sipuel v. Board of Regents (U.S. 1948): declaring unconstitutional Oklahoma’s refusal to provide legal education for blacks while maintaining a law school available only to whites. The state again responded by creating a law school only for blacks, and the Supreme Court denied further relief. (Fisher v. Hurst)
Sweatt v. Painter (U.S. 1950): The S. Ct. for the first time ordered that a white university admit a black student.
· Facts: The University of Texas Law School had denied Heman Sweatt admission on the ground that he could attend the recently created Prairie View Law School. Although the Court was urged to reconsider Plessy v. Ferguson, it refused and instead found that the schools were obviously not equal.
o U of T had 16 full-time faculty members and substantial facilities; Prairie View opened in 1947 with no full-time faculty and no library, though by the time the Court decided the case there were 5 full-time professors and a small library.
“It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and prestige…, would claim that the opportunities afforded him for legal education were unequal to those held open to petitioner. ‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’”
