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Constitutional Law II
University of Wyoming School of Law
Feldman, Stephen M.

Professor Feldman – Constitutional Law II – Spring 2009
I. Constitutional Interpretation—the tools of constitutional argument
            A. Originalism: interpret the constitution by looking only to the text of the document and if there is ambiguity, go to the intent of the framers to understand the meaning of the constitution. Most originalists would say that the text has a plain clear meaning. They seek to protect the constitution. 
            B. Non-Originalism: interpret the constitution by looking at the text, but most often the text is unclear. There are inherent ambiguities in the text and the intent of the framers so we need to supplement them with other sources of meaning and value in order to fully appreciate the meaning of the constitution. 
                        1. Similarities and differences between Originalism and Non-Originalism:
a. Similarities: both say look at text of constitution; both go beyond the text, originalists go beyond the text to the intent of the framers but the Non-originalists go farther
                                    b. Differences: Originalists say that the meaning of the text is clear
II. Due Process: Substantive
–Going back to Lochner era it generally referred to the protection of economic liberties (freedom to contract). Finding the protection of substantive liberties in the due process clause.
–Modern times substantive due process includes the right to privacy and death cases
A. Analytical FrameworkàWhat to do in substantive due process cases:
1. Basically there are two lines of substantive due process cases that must be gone through (see hypo for substantive due process analysis, it was to do with death)
i. One line gives us a narrow interpretation of substantive due process—rights confined to fundamental interests that are clearly recognized within American traditions
aa. An extremely limited conception that might render substantive due process meaningless b/c if such a right were so well entrenched and deeply rooted in American tradition that the court would recognize it, then the odds are high that the legislature would not infringe upon it. 
1. The court is really reaffirming tradition and the cultural and societal status quo—where tradition is something that has an inherit rightness
                                                            a. A highly politically conservative approach
                                                2. Examples: majority opinion in Glutzberg and Bower v. Hardwick
bb. If there is no infringement then the court uses rational basis review—traditional rubber stamp
ii. Second line gives us a broader more flexible definition of substantive due process. The framework is relatively unclear but it says that substantive due process protects against arbitrary govtal actions. 
aa. Souter would say we need to distinguish between executive actions (shock the conscience standard, look for administrative officer acting like police officers or just about any govtal official acting) or legislative action (go back to right to privacy standard and whether the govtal action infringes on one of the two interests and if it does than strict scrutiny is triggered)
1. If we forget about this distinction—then you evaluate any govtal action under this line of cases and whether the action infringes one of the two right to privacy protected interests
a. If the legislative action does infringe one of the two interests then apply strict scrutiny. 
b. If the legislative action does not infringe one of the two interest then apply rational basis.
i. Also undue burden can be extended to right to privacy cases
c. Examples: Lewis and Souter’s concurrence in Glutzberg, perhaps Roe and Planned Parenthood
B. History: Incorporation of the Bill of Rights into the Due Process Clause of the 14th à Whether the Bill of Rights should apply against state and local govts
                        1. Barron v. Mayor&City of Baltimore held bill of rights doesn’t apply to state & local govt,1833
                        2. Slaughterhouse: held the privileges and immunities clause does not incorporate the bill of rights to apply to state or local govts. 
a. This provision was most likely mechanism for incorporation b/c it seemed to incorporate substantive guarantees against state & local govts, BUT Slaughterhouse eliminates that possibility
3. Twinning v. NJ: issue was whether a law that allows self incrimination violates the 14th either by abridging the privileges of the citizens of the US or by depriving persons of their life, liberty or property w/o due process. C
a. Court held they do not incorporate the self incrimination clause in the 5th b/c this was not an immutable principle of justice.
4. Gitlow v. NY—court held that 1st amendment protection of free speech applies to the states through its incorporation into the due process clause of the 14th
5. Palko v. Conn—general approach to identify WHEN to incorporate a guarantee and concept of ordered liberty– Fundamental Fairness Approach: would it be possible for a fundamentally fair system of justice to exist w/o the disputed right or liberty?  
6. Adamson v. Cali—best known for Justice Black’s dissent arguing for the Doctrine of Total Incorporation. The framer’s of the 14th intended the Due Process Clause to incorporate all of the guarantees of the bill of rights against state and local govts.  
                                    a. Courts continued to apply selective incorporation, Fundamental Fairness Approach
7. Duncan v. Lousiana: court scraps the fundamental fairness approach to be more practical and incorporated the right to trial by jury is protected against state action by the 14th
a. The court says we should ask “whether the disputed procedure or right in the context of the actual cj process is important to individual liberty”. 
b. The question that arises though once you realize the substantive component to the Due process clause is does that substantive component extend to parts not expressly enumerated in the Bill of Rights? This is where we get into the question of implied constitutional rights this is where we get into the interpretive theories:
i. Originalism: if we acknowledge the substantive component it must be limited to expressly enumerated rights and we can’t go beyond that
ii. Non-Originalism theories
                        8. Provisions of the Bill of Rights NOT incorporated b/c haven’t been ruled on:
                        a. The second amendment right to bear arms
                        b. The third amendment right not to have soldier’s quartered in a person’s home
                        c. The fifth amendment right to a grand jury indictment in criminal cases
                        d. The seventh amendment right to a jury trial in civil cases
                        e. The eighth amendment prohibition of excessive fines
9. Lochner v. NY—court invalidated a law which stated that bakers could only work a certain number of hours. The law infringes on liberty of contract and protection of the due process clause—this is a substantive due process decision.
a. Lochner Era: a narrow, restrictive approach to Congress’s commerce power, invalidating economic regulations, labor relations, welfare law, etc. Became problem in the depression and lead to Roosevelt’s court packing plan (after Nebbia) and Robert’s “Switch in time that saved nine”
i. The court looked at purposes behind law then the means/ends nexus (is law closely tied to the ends or purposes of the law so there is a close enough fit)
aa. Purpose prong: is the purpose of the law constitutionally permissible; looks at purposes and goals behind the law
                                                      bb. Means/Ends nexus: does the law fit close enough to that goal
                                          ii. Two criticisms of Lochner (also in context of privacy rights)
aa. Institutional Criticisms: Holmes reformulated his reputation in making this argument in his dissent—we should have left this to the legislature. It is not clear whether this law is for the common good, or how close of fit there is; court should have deferred to the legislature, this was and example of conservative judicial activism. He argued that the court was acting in a counter-majoritarian fashion, substituting their judgment for the decisions of the elected representatives—against democracy.                                        
bb. Substantive Criticisms: What does due process mean? Narrowest notion of due process to more expansive notions, this is getting broader
1. Due Process protects processes: says there is no such thing as substantive due process; it’s a mistake to interpret due process as having a substantive component. 
2. If Due Process Clause were interpreted to involve some substantive rights, it should be li

interest or purpose.
            C. The Right to an Abortion
1. Roe v. Wade: 1973 challenge to a TX state anti-abortion law which made it a crime to have an abortion except for the purpose of saving the life of the mother
                                    a. Court uses a Non-Originalist approach focusing on medicine and medical history
b. The heart of the decision is the right to privacy: a woman’s interest in choosing whether or not to have an abortion is protected within the right of privacy
i. Can be characterized as the right to make important personal decisions OR the right to intimate associations
c. The court applies strict scrutiny. They are saying we have a constitutional right, a protected interest where the govt is infringing but there may be circumstances where it is justifiable. It is a balancing test skewed strongly against the govt—show us that the govt has strong enough interest to outweigh the infringement of that interest, that is what the strict scrutiny test is. 
i. Purpose Prong: govt has to identify certain purposes and why they are compelling.  If compelling, then the court looks at the:
ii. Means/Ends Nexus: govt has to explain its purposes and court has to decide whether the state law is necessary to achieve these compelling purposes
                                                aa. State claims they have 3 compelling purposes:
                                                            1. Protection of the fetus as a “person”
                                                            2. Protection of the health of the pregnant woman
                                                                        3. Protection of potential human life: The state’s interest at becomes compelling at the point of Viability. 
2. The next two cases allow govt to make obstacles not to facilitate woman’s choice on abortion:
a. Maher v. Roe: held state regulation granting Medicaid benefits for childbirth but not for abortions was constitutional
i. The court deflates the constitutional right to privacy and says the right protects the woman from “unduly burdensome interference” with her freedom to decide whether to terminate her pregnancy. This is the language used in evaluating state regulation of abortion
b. Harris v. McRae: court upholds Hyde amendment modifying Medicaid and not allowing it to be used in abortions as constitutional. 
3. Planned Parenthood v. Casey: upheld central holding of Roe v. Wade that there is a constitutional right to choose to have an abortion,but overruled the trimester decision. Court takes “reasoned judgment” approach to disengage from Lochner articulates a new standard: Undue Burden Test. Court applies the test to the five restrictions and upholds four. It strikes the fourth regarding married women having to sign a form
                                    a. Rationales:
                                                i. Uniqueness of act of abortion
                                                ii. Stare decisis (four factors to consider in determining whether to overrule):
                                                            aa. Workability of legal doctrine
                                                            bb. How will overruling effect those relying on this decision
                                                            cc. Has the framework changed around that legal doctrine
                                                            dd. Have facts changed to undermine opinion and leave holding wrong