Constitutional Law II
Prof. Schwarzchild
University of San Diego
Spring 2012
The bill of rights 339-354
· Individual rights before the civil war
o Notes
§ Originally, the BOR applied only to the federal gov.
o Barron v.Baltimore 105LL
§ Facts:
ú P argues that D’s street construction (which deposited silt and made his wharf inaccessible) was a taking without just compensation (5th)
§ Issue: Does the BOR accord citizens protection from “state” government acts? No.
§ Held:
ú Had the framers intended that the BOR should apply to the states, they would have expressed it.
· Note: court could have found otherwise b/c the BOR provisions are cast in general terms except the first (which specifically applies only to Congress)
ú Any limits on state powers found only in state constitutions.
ú Court has no jurisdiction
· Post Civil war amendments
o After civil war, the 13th(forbids.slavery), 14th, and 15th(prohibits restrictions on right to vote based on race) amendments added.
o Slaughter-house cases 106LL (narrow interpretation of the amendments)
§ P’s (butchers) challenged state law granting a state corporation a monopoly in butchering industry. P’s only means of practicing their trade was to pay fees to the state corporation and work at the corporation’s plant.
§ Held:
ú No involuntary servitude claim (no historical basis)
ú Only those privileges and immunities of the United States citizens are protected by the 14th
· All states must do is grant equal rights to its own citizens and citizens of other states within its jurisdiction
ú No deprivation of property (under 5th)(non ability to butcher/right to job)
o Saenz v.Roe 108LL )(state welfare; limitation of benefits)
§ California limited welfare benefits for the first 12 mo. Of a new citizen’s residency in the state, to the level received by the individual in his previous state of residence
§ Court held law invalid.
§ The right to travel includes:
ú The right to enter and leave another state
ú The right to be treated as a welcome visitor; and
ú The right to elect to become a permanent resident and to be treated like other citizens of the new state (privilege and immunities clause applies)
· The right to travel includes the citizen’s right to be treated equally in the new state of residence
§ The state’s legitimate interest (in saving $) does not justify discrimination
o Note: Saenz is consistent with Slaughter (where states must grant equal rights to its own citizens)
Incorporation 354-361
· Incorporation of the bill of rights through the due process clause
o Old Approach (Palko/Adamson)
§ Selective incorporation; incorporation only if the right is necessary for liberty and justice to exist
o Duncan v.Louisiana. 112LL (trial by jury)
§ Here, the P (a D in the criminal case which he argues against) was not given a trial by jury, when he was convicted of a crime punishable by up to 2 years in prison.
§ Court finds this a violation of the due process clause.
§ The right of trial by jury in “serious criminal cases” qualifies for protection under the due process clause against violation by the states
§ The authorized penalty is of major relevance in determining “seriousness” of the crime (2 years indicates a serious offense here)
§ The 6th amendment guarantee of a right to jury trial is hereby incorporated through the 14th to apply to the state criminal cases and within due process protection.
Substantive Due Process – Rise 362-375, 414 (Meyer)
· Note: the basic issue underlying the substantive due process cases is whether the Court may properly protect rights not specifically mentioned by the Constitution simply by declaring them “fundamental rights”
· Economic Liberties
o Lochner v. New York 115LL
§ Lochner convicted of permitting a bakery employee to work for him for more than the statutory max of 60 hours/week.
§ He challenges the law as a violation of the liberty to contract protected by the 14th.
§ Issue: May a state generally prohibit private agreements to work more than a specified number of hours? No.
§ Held:
ú The general right to contract in business is clearly part of the individual liberty protecte
Griswold v.Connecticut 130LL
o D’s supplied information and medical advice to married person on the use of contraceptives. The state law criminalized all contraceptive use and D’s were convicted of accessories to the crime. They appeal.
o Issue: Does a constitutional right of privacy exist that prohibits states from making use of contraceptives by a married couple a crime? Yes.
o Held:
§ The BOR has penumbras, or peripheral rights, which make the specific rights more secure.
§ A right of privacy has been noted in earlier cases, and ought to especially protect the marriage relationship.
§ Statute is overbroad and void.
o Note from EO:
§ Good part of the rationale seemed to have to do with the privacy implications of proof in prosecutions
ú Notions of privacy in marriage relationship
§ Criticisms of the “penumbra” theory
ú When the constitution sought to protect private rights it specified them; the fact that it explicitly protects some elements of privacy, but not others, suggests that it did not mean to protect those not mentioned
ú The penumbra theory seems to be equally applicable to many property rights (which wouldn’t be upheld for same justifications as economic regulation)
· Contraception
o Post Griswold (Eisenstadt v. Baird):
§ Equal protection was used to strike down contraceptive laws which prevented unmarried couples from using;
ú Whatever the rights of the individual to access contraceptives may be, the rights must be the same for the married and unmarried alike
ú Right of privacy = right of individual to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child
