Structure of Constitution’s Protection of Civil Rights & Civil Liberties
I. Constitution, apart from Bill of Rights has few provision w/ individual liberties
a. Framers thought enumeration of rights wasn’t needed
b. Gov’t created w/ limited powers and listing would deny protection to unlisted
II. Application of Bill of Rights to the States
a. Several states, concerned about absence of enumeration of rights requested B of R to be added
b. Rejection Civil War – Barron (1833) – held protections in B of R not applicable against states applies to federal gov’t but not framer’s intention for it to apply to states- Never expressly overruled Made sense b/c of state constitutions
c. False Start Applying Bill of Rights to States
i. 13th and 14th A = reconstruction amendments – adopted after civil war
ii. 14th – “No state abridge privileges/immunities of citizens of U.S.”
1. isn’t the B of R the most basic privilege/immunities in U.S.
2. Reopened door for B of R arguments
d. Slaughter House Cases (1872) – first Sup/ct case to interpret 14th amend, J. Miller (5-4) – still in effect
i. White Butchers said it violated their right to practice their trade
1. Involuntary servitude, Deprivation of property w/o DP, No EP and
2. Abridged their privileges or immunities as citizens
ii. Held: State had exclusive right – police power this type of work would be done, laws of fed. Con only applicable to protect former slaves
iii. 13th was meant for extreme violations, i.e. segregation
iv. Refused the invitation to redistribute power away from States and to the federal gov’t
v. Narrowly construed the DPC, EPC, and P and I C of 14th A
1. Ct’s narrow interpretation of EP was upheld until the 20th C, i.e. gender, alienage.
2. P and I – ct said only for protect – Free access to seaports, Assert claims against gov’t, share office, engage in admit functions, and transact business with
3. Essentially wrote out of Constitution
a. Until Saenz v. Roe (1999) P/IC to invalidate state law
b. J. Miller in Slaughterhouse – can be citizen of any state by bona fide residence therein and have the same rights as citizens therein
c. Traveling is a constitutional right
d. State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.
e. Incorporation of Bill of Rights into Due Process Clause of the 14th Amendment
i. The Slaughter House case hindered using the P/I clause to apply the B of R
ii. Court began to use alternative approach – DPC of the 14th Amendment
iii. Twining v. New Jersey (1908)
1. Possible some of personal rights safeguarded in the 1st 8 Amend may also be used against st actions,
2. Fundamental rights
a. Denial of them would be a denial of DP, look at their nature
b. Look to England
c. Principle of liberty and justice which inheres in the very idea of a free gov’t
d. Not b/c rights are simply listed, but b/c they are of such a nature
III. Debate over Incorporation – which rights
a. Framer’s intent
b. Federalism –
i. Selective: frees states from application of bill of rights – rights of states and least restriction of them
ii. Total: federalism isn’t a justification for violation of B of R
c. Subjectivism –
i. Total: judges have too much discretion
ii. Selective: More judicial oversight of state and local actions means less democracy
d. Selective incorporation
i. Palko v. Conn (’37) – Cardozo- Is it a denial of life or liberty w/o DP of law?
ii. Adamson v. Cali (’47) – Must safeguard and promote the interest of liberty and human dignity – Must be mindful of state power of authority
IV. Current Law as to What’s Incorporated – Both sides won although 5 B of Rs have never been incorporated
a. Test: Duncan (1968) – White
b. Whether a right is among those fundamental principles of liberty and justice which lie @ the base of all our civil and political institutions?
i. Prevent gov’t oppression
ii. Safeguard
iii. Balance of power
c. Whether it is basic in our system of jurisprudence?
d. Whether it is a fundamental right, essential to a fair trial?
V. Genesis of Heightened Scrutiny of Laws Affecting Disempowered Groups & Fundamental Rights: Carolene Products (38)
a. Court lists areas which extremely deferential standards of review wouldn’t apply – more searching judicial inquiry
i. Restrictions on the Political process (voting, association, and free speech)
ii. Rights of discrete and insular minorities
1. Prejudice curtails operation of political processes relied upon to protect minorities
2. Haven’t been able to protect themselves (same as accused)
3. So small they are overlooked, historically oppressed
4. History of discrimination – less ability to protect themselves through the political process
Might be a suspect class if :
iii. When it adversely affects discrete and insular minorities – then judicial scrutiny is higher
iv. Laws involve line-drawing, but can’t be pointless, must have reason proof that line drawing is needed
v. Influence when the courts were faced w/ claims that aliens, women, and illegitimates– but only receive IS
Equal Protection
I. Introduction
a. Equal protection applies to the
i. Fed gov’t thru judicial interpretation of Due Process Clause of 5th Amend
ii. To states and local governments through the 14th Amend
iii. Both requirements are the same
b. The Equal Protection Clause – designed to impose upon the states a duty to prohibit legislative classifications and administrative behavior that discriminated against particular groups in the distribution of certain fundamental rights.
c. Drawing on United States v. Carolene Products, 304 U.S. 144 (1938), the suspect class strand of equal protection jurisprudence prohibits government discrimination against groups of people based on race, national origin, gender, alienage, illegitimacy and certain other criteria.
d. The fundamental rights strand of equal protection jurisprudence prohibits discrimination with respect to certain fundamental rights–primarily voting, travel, and access to the judicial process.
e. The impetus that shaped equal protection analysis was discrimination based on race, more specifically the legacy of constitutionalized slavery
f. Framework of EPC – 3 basic questions of Equal Protection
i. What is the Classification?
1. How is gov’t distinguishing among people?
2. 2 Alternative ways of proving the existence of a classification
a. Exists on the face of the law
i. Very terms draws a distinction
ii. i.e. only 16 & older can have a driver’s license
b. Facially neutral, but has discriminatory impact/effect
i. Must prove discriminatory purpose behind law
ii. Impact alone is not enough to prove a racial or gender classification
iii. Only people over 5’10 can be police – women?
ii. What is the appropriate level of scrutiny?
1. Strict scrutiny – race, national origin, sometimes aliens
a. Gov’t has burden to prove
i. Necessary to achieve compelling gov’t purpose and
ii. Can’t achieve purpose w/ any less discriminatory alternative
b. Virtually always fatal
2. Intermediate – gender, non-marital children
a. Gov’t has burden to prove
i. Upheld if means used has a substantial relationship to the end being sought
ii. Objective must be “important”
3. Rational basis test – minimum level of scrutiny
a. Challenger has the burden
b. Upheld if
i. rationally related to a legitimate gov’t purpose
ii. Rational way to accomplish the end
iii. Something the gov’t legitimately can do
c. Rarely laws fail this, ct gives extreme deferential to gov’t b/c legislature better to decide best course of action for their people. Unfair laws are allowed b/c of a conceivable legit purpose, Frequently helps those w/ political clout, Almost complete deference!, There is no consistency
d. Need to uphold deference to respect states rights
4. Level used is based on
a. Immutable characteristics – unfair to penalize a person for something he did not choose / change
b. Ability of group to protect itself through the political process
c. History of discrimination
5. Criticism of the tiers suggested a
a. sliding scale & consider these
i. Constitutional importance
ii. Social importance
iii. And the basis of law
b. Sometimes these tiers aren’t even followed b/c the ct uses more bite then it says
iii. Does the gov’t action meet the level of scrutiny?
1. Court evaluates law’s end and its mean
2. Means to end relationship evaluated by inclusiveness:
a. Under –
i. doesn’t apply to individuals who are similar to those whom the law applies
ii. Raise the concern that either
1. gov’t enacted law that targets particular politically powerless grp
2. Exempts those w/ political clout
iii. Can be substantially under b/c gov’t may take 1 step @ time, all laws can be under
b. Over –
i. unnecessarily applies to those who need not be included in order for the gov’t to achieve its purpo
acial hostility
b. Reinforces the belief from history that individuals should be judged by the color of their skin
c. Endorses race based reasoning and the conception of a Nation divided into racial blocs, contributing to racial hostility and conflict
d. Proving existence of race or national origin classification
i. On face of law – law in its very terms, draws distinction among people based on those characteristics – 3 types:
1. Disadvantage minorities – Uses races as basis for a burden
a. Palmore v. Sidoti –state’s denial of custody to mom b/c she married black man = unconstitutional
i. Ct said Constitution can’t control prejudices but can’t tolerate them – Private biases outside reach of law, law can’t give them effect
ii. Effects of prejudice can’t justify racial classification
b. But see: Korematsu v. U.S. upheld classification burdening minorities:
i. Based on national security – might aid Jap army, even though no evidence needed, race alone enough
ii. No way to screen individuals who were a threat – J. Black
iii. Under and over inclusive –
1. Didn’t exclude white Germans
2. Over – excluded ALL Japanese
iv. Ex. Of ct’s deference to military, esp in war time – even if that is when they job is most important due to war hysteria
2. Burdening whites AND minorities – Loving v. VA (’67) –
a. State law outlawing white’s from marrying outside white race declared unconstitutional
b. “Equal application” not enough to remove 14th Amend protection
c. No legitimate overriding purpose which justified classification – resulting injury not main concern, rather State’s power behind the classification
i. Just discrimination
ii. Other races could marry outside their race
d. Restricted fundamental right to freedom to marry
i. violated EPC
ii. violated DPC -basic civil rights of man, fundamental to existence & survival.
3. Requiring separation of races
a. Reconstruction – after Civil War, S. under military rule till 1880’2
i. Congress enacted may laws to protect civil rights
ii. Civil Rights Act of 1875 held unconstitutional
iii. Held 14th only applies to gov’t action NOT private conduct
b. Plessy v. Ferguson(1896) – validated separate but equal
i. Plessy 7/8th black & refused to leave RR cart – separate but equal stamped colored races w/badge of inferiority
ii. Separate but equal same as Congress’ separation in DC schools and no stamp and if you feel that way, it is only b/c you choose to put that upon it
iii. Reasoned this was use of police power –
1. Good faith for public peace, not to oppress –
2. View to promote the public’s comfort
iv. Harlan dissent:
1. Everyone knows origin of statute – to exclude colored ppl, not vice versa
2. Constitution is colorblind, neither knows or tolerates classes among citizens
3. Destiny of the two races races linked
c. Attack on “separate but equal” – 1938-54
