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

Part I: Introduction: Constitutional Interpretation
1. Introduction
2. Constitutional Interpretation

IMPLIED FUNDAMENTAL RIGHTS – Where do these rights come from? How can Constitutional rights come into existence and what are they if not expressed?

Ø Speech and Religion are protected and expressed – how much freedom we have is disputable.
Ø Privacy is an implied right
Ø Natural Law – When there are not any clear pre-determinative answers we refer to natural law.
o Use when we are looking to impose natural constraints on the justices.
o Maybe originalist are right because we should stick with the original intent of the Framers so that a naturalist view of things can’t be used (may be meaningless anyway.
§ We end up turning to originalist sources b/c: 1. Text is unclear (i.e. due process). 2. Historical evidence of the Framer’s intent is ambiguous as well and can’t lead us to clear answers in most important cases anyway.
o Originalists – way that we have decided this way because the text demands it even if there is nothing substantive to what they are saying
o Non-originalists – It is not always clear from the text

Ø Calder v. Bull –

o Chase says that natural law helps us to interpret and find additional principles to point out rights should be protected. (Non-originalist is originalist + supplements)
§ Non-originalism –
§ Representation reinforcement – focus on the process of democracy. Channels of political change should always be open. Facilitate the representation of minorities.
o Justice Iredell – Go strictly to the written constitution, that is all the SC can look to, there should be no supplementing from natural law. (Originalist – look to text and intent of framers (also looks to additional sources))
§ Originalism is consistent with democracy. People will exercise civic virtue. Certain areas where democracy cannot go.
· There must be a clear definition of something beyond democratic reach that can be accessed only as needed. Text is not plain and clear.
· There is a fear that the countermajoritarian difficulty may again result. Intent of the framers is hard to find because they aren’t available. SC Justices are not elected and the democratic process is not fully embraced by policies that they may make.
· How can natural law be fully established (creates skepticism)
· Look at tradition and consensus.
· Does not lead to determinative answers in very important cases.

THE PRIVILEGES OR IMMUNITIES CLAUSE – No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Ø The Slaughter-House Cases – Plaintiffs, butchers of New Orleans, contended that a state statute (Louisiana) was unconstitutional in that it violated U.S. Const. amend. XIV and U.S. Const. amend. XIII. The statute was passed to protect the health of the city and forbade the slaughtering of animals for food within the city, giving a company the sole privilege of slaughtering animals. Plaintiffs also argued that the statute created a monopoly and deprived the butchers of the city the right to exercise their trade. The state court decided in favor of the company. On appeal, the Court affirmed the judgment, finding that the state had the exclusive right under its police power to determine the localities where slaughtering for the city could be conducted, and the laws of the federal Constitution did not apply. Additionally, the law only restricted the butchers as to where they could slaughter, but not from butchering, thus it did not restrain their trade.
Ø 1. Was this law passed for the public good? If yes upheld.
Ø 2. Was it passed for the promotion of partial or private interests.? If yes overturned
o Court says the privileges and immunity clause protects only rights associated with national citizenship and NOT state citizenship and if there is any right to choose and pursue a profession that would be a right of state citizenship and not national.
o There is a worry that the majority uses: We may take too much power away from the State if we do not affirm their ruling and laws.
o Dissent: This is a window to look through in providing natural rights. Non-originalist approach
o This case killed the privileges and immunities clause. Bill of Rights (14th Amendment “privileges and immunities” clause – No state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the US.) not binding on the States.

Incorporation Controversy – Barron v. May & City Council of Baltimore – Issue: Does the Bill of Rights apply to the States?
o Because they cannot use the Privileges and Immunities Clause the court starts turning to the 14th amendment into “no state shall deprive any person of life, liberty, or property without due process of law.”
o The Court found that the provision in the Fifth Amendment declaring that private property should not be taken for public use without just compensation was intended solely as a limitation on the exercise of power by the government of the United States and was not applicable to the state legislatures – people must look to their own state constitutions for just compensation when states proceed with a taking.

Ø Twining v. New Jersey – Jury received an instruction that they could draw an unfavorable inference against the D’s from their failure to testify. Right of self-incrimination is not an immutable right (or natural right). Court hesitant to apply BofR to States.
* If this would have been a federal case the jury instruction would have clearly violated the 5th amendment, b/c in a state action the 5th does not apply.

Ø Palko v. Connecticut 1937– Free exercise clause, press, etc. applies against the States. Was it possible for a fundamentally fair system of justice to exist without these right? (Hypothetical Approach). Start to expressly incorporate provisions of the Bill of Rights. However, 5th and 6th do not – jury trial, privilege against self incrimination, double jeopardy were not incorporated into 14th Amendment. Tried to come up with an approach as to when to incorporate “Fundamental Fairness” asked whether it would be possible for a fundamentally fair system of justice to exist without the disputed right or liberty.

Ø Adamson v. California, 1947
o Justice Black has a unique approach (minority) – “total incorporation” based on the clear reading of the framers intent. Justice Black claims that the 14th Amendment Due Process Clause totally incorporates the Bill of Rights. Every provision in the Bill of Rights applies against the states through the 14th Amendment. Black is concerned that the majority’s approach is too subjective…allowing the Justices too much discretion

Ø Duncan v. Louisiana (Warren Court) – Is the disputed right or procedure fundamental in our current system of freedom and laws? (Practical Approach instead of the fundamental fairness approach – less hypothetical and more concrete approach)
o Court decides many of the criminal procedures previously rejected should be incorporated. Rt to jury trial is fundamental to American scheme of justice.
o The question became…can the Due Process Clause offer protection for other implied substantive rights, in addition to implicit substantive rights.

Ø Eventually (by the end of the 60’s) the entirety of the Bill of Rights is accepted even though they were examined individually and accepted piecemeal. Once selectively adopted, the State and Government are held to the same standard.

Due Process: Substantive and Procedural

Substantive Rights – Court moves beyond process to substantive rights under the 14 Amend.

Ø Lochner Era 1880’s to 1937 – Based on the Court’s Substantive Constitutional Protection of Property and Contract rights. Conflict between New Deal and Lochner Court becomes a problem. L. Court struck down 200 economic regulations under the due process clause (violations of economic due process). Feldman says that the Lochner decisions were inconsistent because other economic regulations were upheld. You look at this as Republican Democarcy what was the common good (conflict between legislature and court). New deal comes along and legislative attempts to stimulate the economy are struck down. Post-Lochner held that the Lochner Era was evil apparition for the next seventy years.

Ø Lochner v. New York – NY statute passed law providing that bakery workers not work more than 60 hours a week or more than ten hours in any one day. Industrial Revolution effects that bring in immigrants having a surplus of labor in the big cities supported by big business. means ends nexus
o Court has to determine if this law will be determined as a labor law.
o If the law is only interested in partial private interest it violates freedom of contract.
o The court majority says that bakers do not work in unhealthy circumstances and therefore fails the means ends nexus. (IT MUST DIRECTLY RELATE TO THE GOAL OF PROTECTING PUBLIC HEALTH OR SAFTEY AND MUST HAVE AN APPROPRIATE AND LEGITIMATE END.)
o Infringes on due process freedom of contract. Was the means ends nexus a reasonable fit?
o Terms of permissible goals, if it was protecting laborers, it was not a reasonable law b/c it infringes on freedom of contract.
o The law could also be viewed as focused on health of employees – they say that that is a permissible goal but applying the means ends nexus test it doesn’t fit substantially.
o Criticism – 1. Institutional – Due process refers to procedure. The court goes wrong by finding substantive right in due process claim (liberty to contract). The court is guilty of judicial activism (personal preferences/values) because this is not addressed by the Constitution. Holmes makes this in his dissent: Court is extending itself beyond its bounds –the point is that it is the role of the legislature to determine the substantive goals of society. Countermajoritarian difficulty again.
o Criticism- 2. Substantive – Question as to what due process mean?
§ 1. due process means process or procedures, court goes wrong by finding substantive content in the due process clause by finding liberty of K a substantive right, they should only find a guarantee of Gov’t procedures or processes and not interpret any substantive rights that are not expressly stated.
§ 2. If due process clause in fact protects some substantive rights beyond process or procedure of state or gov action: it is limited to protecting those rights spelled out in the bill of rights (close limitation. Otherwise the court is just making it up). When court finds an implied right, liberty of K (not in BoR), it substantively goes beyond the due process clause.
§ 3. Due process protects substantive rights and bill of rights and maybe other implied rights but it does not protect liberty of K.
§ 4. Due process does protect substantive protections of rights and even right to contract, but in this case the state adequately justified its interference with liberty of contract.
o Pro-Lochner Critics: The government must not cross the line between doing something for the public good with private needs and economic autonomy of individuals. Court must police the boundary between the public sphere and the private sphere. Government can only interfere for the common good and stay in its sphere.
§ Another criticism is that someone should police the government. Thus, it is the courts job to police the boundaries between the two spheres. The boundary is not pre-existing. Keeping government out maximizes our freedoms.
§ Context is important – individual liberty (stay home and not work) is sometimes increased by governmental action even though sometimes the government’s intervention is unnecessary or unwarranted
§ Critics say that this is not a pre-existing realm between property and contract if enforced by government and if that is the case why can’t government interfere with what happens in the private sphere. What is wrong with the legislature adjusting the relation between public and private?
§ Critics say that the Supreme Court shouldn’t be the policeman – the argument is that the legislature should be up to this task.
§ Another criticism: Private sphere is not a realm of individual liberty.

NEW DEAL ERA – New legislation that the conservative court is striking down. Court packing plan to increase justices up to 15 so that there would be more votes replacing the conservative votes. Court rubber-stamps all the socialist crap that Roosevelt spewed.
Ø -Assumptions behind Lochner decision: public/private dichotomy: public/Gov’t v. private/economic rights- individuals interact at arms length, making Ks, etc.
Ø -Lochner court believes:
o 1. private sphere comes first and pre-exists Gov’t, preexisting natural entity that needs to be protected. Government has to keep out of private sphere activities.
o 2. Who is to do the boundary policing?: The court, we will ensure the Gov’t will not cross this boundary. The bakers and employees negotiate at arms length and we should not interfere.
Ø -Criticisms:
o 1.The private sphere is not natural and preexisting. It is legally and socially constructed, exists b/c the Gov’t has created it. Ex: property rights etc are rights because the government stands behind these claims, and if not they would not exist. This type of regulation (as in Lochner) is only an adjustment of the current rights by the state.
o 2. The court should not do the policing (institutional aspect of criticism): court should not be policing this boundary b/c there is no boundary but the courts are creating it or you can say even though the boundary is not naturally preexisting there is a legally and socially constructed dichotomy where we do not want the Gov’t interfering. Who is going to take the actions to define this interaction? It should not be the court it should be the legislature as they were trying to do.
o 3. The usual conceptualization of the private sphere was premised on the land of freedom and autonomy. Individual liberty is maximized when just left alone, but when the Gov’t interferes this freedom is impinged. Is this true: Do we maximize liberty with only non-Gov’t actors? The answer is no, and this is seen with the coming of big business. Big business employed recent immigrants and took advantage of the situation so the Gov’t had to step in and regulate. Individual liberties are actually increased by governmental actors particularly where there is a gross disparity of power b/t the two parties.

Ø **This is where the continually shifting line comes in thru the democratic process. If the courts determine the line it will be set and will fail to shift as needed. Courts role is to decide whether the laws are for the common good or for partial or private interest.

Ø Nebbia v. New York (1935) – Decline of Lochner standard. Restrictions on the price of milk. Court upheld the law.
o Court determines that they will not protect the private good, but will consider overwhelming public interests.
o Court begins to w

cases – clearly choice to have abortion is personal choice that must be respected. Social implications must be considered, i.e. the woman is not in isolation, her decision will affect others. 2. Stare Decisis – general principal discussed why precedence should or should not be decided. 4 factor test
o Viability is still the dividing line, after viability the states interest outweighs the woman’s right. Even b/f viability the states can regulate abortions. With viability there is a problem, b/c it can vary with medical technology.
o Court rejects the trimester framework for evaluating state action: increases the states interest in protecting potential human life.
o Trimester framework may be irrelevant due to the fact that viability may vary within the timeframe due to greater medical advancements. Allows state to impact upon the second trimester to a greater degree.
o Other differences: court rejects the Strict Scrutiny test, state no longer needs a compelling state interest, now the undue burden test. If state law imposes an undue burden on a woman’s right to choose, that violates due process and is unconstitutional.
o Undue Burden Test (Substantial Obstacle Test) “Not all burdens on the right to decide will be undue…..” An undue burden exists if the purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion b/f the fetus attains viability.
1. A regulation that incidentally increases the cost of abortion is not an undue burden. (can be the states action or the results of a states actions causing the burden) Problem: will this standard be introduce to different types of cases?
2. Regulation that in various way states a courts (value) preference do not necessarily create a substantial obstacle (i.e. we prefer pregnancy over abortion). (p. 857 last full paragraph)
o Undue burden is somewhere below strict scrutiny, how far below, we don’t know. There have been many cases trying to find where the line is. What becomes clear is that it is less than strict scrutiny and therefore more deferential to State legislatures.
o What constitutes a substantial obstacle or undue burden: regulation that incidentally increased the cost of abortion is not an undue burden or substantial obstacle.
o Regulations that in various ways express a state’s preference that a child is carried to term does not necessarily create a substantial obstacle. 857: “Some guiding principles should emerge….” Trying to give more recognition to those opposed to abortion while still trying to uphold Roe. State can try to discourage getting abortions, but where is the line, when is there an undue burden?
Ø State Regulations
1. Women seeking abortion must give informed consent
2. Woman must have information 24 hours before abortion.
3. For a minor there must be the informed consent of one of her parents (judicial bypass available if can’t get parents consent)
4. Requires that a married women must sign a statement noting that she has informed her husband (Struck Down)
5. Reporting requirements upon any facilities that perform abortions.
Ø Court’s Reasoning – Only 4 is struck down even though 2 is shown to be particularly burdensome to poor women.
1. Still a constitutional right to choose before viability.
2. NEW TEST: Undue burden or substantial obstacle test. (replacing compelling state interest test)
3. How does the Undue Burden test apply? It’s less than strict scrutiny. Means that regulations that may have been struck down under Roe, would survive under Casey. In Casey, the only regulations that was considered undue burden was (spousal notification requirement) the married woman’s notification to her husband. Why? Because some women may have some fear of reprisal…etc
Rationale: Uniqueness of abortion and Stare decisis
Ø Court focuses on personal/private autonomy allowing individuals to decide on these types of decisions.
Ø Woman making this decision is not in isolation, but rather society and her decision does affect others.
Ø Court identifies four factors affecting stare decisis (whether earlier decision is overturned)
i. 1. Has the holding or rule of the prior case been found to be unworkable in reality? (As in National League of Cities)
ii. 2. Is the holding of the prior case relied upon frequently? Right to choose and equality. Would great inequity be found because of people’s reliance – special hardship if court were to overrule.
iii. 3. Is the doctrinal framework of the rule and its framework based on rules that are not properly focused? (Doctrinal anachronism, framework of rules establishing have crumbled, no longer fits)
iv. 4. Has the factual perception changed so much since the decision that there no longer seems any factual basis for the ruling?
Ø Applying to Roe they decide they should not overrule. Suggest a link between a right to choose and equality. Equal protection does not give each child a right to equal funding, but does give a right to a minimum of funding.
Ø Court’s overturning of Lochner distinguished: We know this is a volatile question, but we will not decide by Constitutional Objectivity. Explicitly basing the decision on substantive due process. We are deciding this based on reasoned judgment. Judicial reasoning that is not merely arbitrary and not mechanically objective. Rely on fourth factor of whether the facts have changed.
Ø Lochner deserved to be overruled by 1937 because by that time the depression was over and it was wrong based on its facts – unregulated marketplace was determined to be untrue.
Ø If we overturn Roe would look as if we were overruling based simply on our personal beliefs. We look injudicious as if there was buckling under political pressure.
i. We will look bad if we do that, the Courts power would be undermined and legitimacy questioned as it is based on public perception.
ii. Interpretations: We are deciding on personal preference and are worried about everyone watching or we would prefer to overrule, but feel compelled to uphold.