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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 wonder about the oppression of individuals and groups by big business in the name of freedom of K.
o    Property and Contract Rights are not absolute
Ø West Coast Hotel Co. v. Parrish – Upholds minimum wage for woman. First holding of New Deal Court with a Justice that switches and new justices. “Additional and compelling consideration which recent economic conditions have brought to light.”
o     Court noting oppression in the market place. Gov’t has a responsibility to both sides and decides to leave things up to the legislative process. Insufficient wages hurt community.
Ø Griswold v. Connecticut – Right of married couples to use contraception. SC finds law unconstitutional. Written by Justice Douglas, focuses on individual rights and liberty. Wants results/consequences not judicial decisions. Right of privacy from Bill of Rights.   Even though you might be skeptical of natural rights this is what the framers wanted us to do. Right of privacy is implied. Govt out of the bedroom. “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
o    Criticism – Go directly after natural rights- tells us that this is a non-originalist-type provision (for finding an implied right in Const.) At this time natural rights is not popular in the courts, natural rights too indeterminate: the response to this argument (originalist) “9th Amendment says that people shall not be limited just to the rights alluded to in the Bill of Rights.”- Goldberg does raise this issue.
o    Douglas – Attempt to ground right of privacy on Bill of Rights itself. Constitution provides protection for marriage as an intimate association – this law intrudes on sacred institution.
o    Harland – Violates basic values implicit in the concept of order.
o    Black – Argument that this is just like Lochner.
o    Institutional: Rampant judicial activism replacing SC’s will for that of Connecticut people. 
o    Substantive Criticism – Response: Lochner is wrong because of what they found to be within the private sphere. Griswold court got that sphere right at the least.
o    Difference between Lochner and Griswold is the economic market place and marital relations and government intrusion into those spheres.
Ø Eisenstadt v. Baird – Use of contraceptives by unmarried persons prohibited. Married persons and unmarried person are treated differently. Focus on unmarried – using equal protection. Because married people have it single people must as well.
Ø Right of Privacy – Important personal decisions – Can be divided into two interests. Government should not interfere with: 
o    1. Interest in intimate associations.
o     2. Interest in making important personal decisions.
o    Common types – Contraception, education of children, etc.
o    Is there a compelling state interest involved in the decision being made? Rational basis with bite or intermediate scrutiny test will have compelling interest.
Ø Carey v. Population Services – Law prohibiting pharmacies from distributing contraceptives struck down.
o    Decisions regarding child bearing are personal and if these rights are questioned the strict scrutiny test (compelling state interest) should be used. (This case about who can distribute not use) and there must be no less restrictive available means. The right of privacy encompasses the right to make important personal decisions. 
Ø Roe v. Wade – Right of person to have an abortion. Focuses on Texas state law, crime except by medical advice to save the life of the mother. Court acts as if decision is made with a Constitutional ruler. They say that they are not using their own believes and values, but instead use history, tradition, and science of medicine. 
o    Notes that history will be used. Abortion used to be allowed before quickening “movement of the fetus”. Not until the mid 19th century did abortion become illegal. Court notes that it had been legal until that time and was consistent with tradition. Blackmum is using a non-originalist argument
o    Right of Privacy:
§   Fundamental Fairness Test
§   Based on Griswold – precedent established (Eisenstadt), procreation, childrearing has been invoked – abortion is another decision which falls into this right of privacy (intimate associations and making important personal decisions) Right of privacy includes a woman’s right to have an abortion.
o    Use Due Process Clause of 14th amendment, thus states cannot extend a law to prohibit abortion – used to show right of privacy: Right of privacy is substantive due process
§   Policy: Look at results of anti-abortion laws “specific and direct harm may be involved…distress, etc for all concerned from an unwanted child.”
§   Gives woman a right to choose an abortion
§   Compelling State Interests – argument
·          Fetus is a “person” – Constitutionally compelled to protect “persons”. Ct. says fetus doesn’t fit “person” description.
·          Protecting

uman life. The statue basically forces a woman to choose a more risky procedure.
2.        Has to do with undue burden standard. Puts an undue burden on the woman to choose a D&E procedure affecting the right to have an abortion at all. If it were only D&X procedures it is possible that there could have been a difficult result, but it affected D&E as well.
a.        How do State interests fit into this case? The State says that the law shows concern for life unborn and gives integrity to the medical profession. States interest is not enough to overcome 1 (there must always be an exception when the mother’s life is in danger).
b.        Issue 2 is hard to deal with under the undue burden test, it seems unclear? There will probably have to be some sort of balance interest. The court would need to ascertain how much State regulation affects a woman’s right to choose. How weighty are the State interests and how do they balance with a woman’s right to choose. It either does or doesn’t constitute and undue burden. Look at substantial obstacle as balancing language. The best answer is to recognize that undue burden and substantial obstacle is the balancing language that balances the woman’s interest against the government’s interest.
c.        If the state is asking to endanger the life of the pregnant woman than the protection of the unborn child is irrelevant.
 TEST: Substantive due process –**** Is a particular interest encompassed by a particular constitutional right? And than the issue is what level of scrutiny should be applied. If an infringed constitutional right or an interest encompassed by a constitutional right than use a heightened level of scrutiny (or undue burden). IF we do not have an infringed constitutional right than the Court uses rational basis review.****
Other Privacy Interest
·          Right of privacy does involve more than abortion*****
Ø Moore v. City of Cleveland – Limits occupancy to certain companions and relatives. City was trying to limit who could live together. Only people that belong to a family can live together and then they define the definition of family. Ordinance violated the substantive due process of the individuals and the protected right of privacy. The plurality of the court focused on the family coherence issues.
o    Personal choice should be protected by courts.
o      1. Interest in personal decisions and
o      2. Interest in right of intimate associations. Court protects the family and says that is something they have always done.
Ø Zablocki v. Redhail – Anyone under an order to pay child support cannot get married unless provide proof you are paying child support.
o    Important personal decision and interest in intimate associations (both)
o    State can force people to pay child support but it cannot restrict from getting married as leverage. Essentially it works out to be a form of manipulation.
o    The law was struck down because it violated protected privacy rights.
Ø Roberts v. US Jaycees –  “among other things therefore they (particular relationships or associations) seclusion from others…freedom of association…” at two ends of the spectrum of intimate associations marriage and business associations but many fall in between and may or may not be afforded protection. Closer to marriage the more likely protection will be afforded and the closer to business the less likely it will be afforded.
Ø Intimate/Marriage Association◄_____________________________►Business Association
Sodomy Cases
Ø Bowers v. Hardwick – Arrested for committing sodomy in his own home.
o    Are Gays and Lesbians a suspect class (Romer and Evans). Equal protection is still the issue.              Right of privacy:
o     1. Interest in making decisions &
o     2. Interest in intimate associations.
o    Dismiss all precedents. All precedents that seem to bear on this issue the court dismisses as irrelevant.
o    2. Obviously the decision to engage in homosexual sodomy is an important personal decision, which is being infringed by the state action, so the next step is to use strict scrutiny; state must justify its actions only if needed for a compelling state interest. (Courts are limiting the undue burden only in abortion), now must apply strict scrutiny; what are the state interests and does the regulation achieve the compelling state interest?
o    Majority says this argument is beside the point and dismisses the 1. Precedent cases as irrelevant to homosexual sodomy. 2. What we need to look at is the tradition of prohibiting homosexual sodomy, and the fact that it was inside is irrelevant. 3. We are talking morality and the state democratic majority has the right to enforce moral preferences.
o    =Romer v. Evans had very little precedential value b/c the law failed rational basis, but in the future you will not be so lucky
o     Do not bear a similarity, do not bear on homosexual sodomy. Fact that it was in the home is irrelevant. Tradition supports banning homosexuality. Morality supports banning this type of behavior. Democratic majority can enforce morality preferences.
o    To argue against the law, you would argue that the protected right to privacy has been violated.
o    Argue the continuum that was decided in Roberts. After identifying the liberties at stake, which is protected privacy rights, and then the state has to show a compelling interest in regulating this liberty by applying the strict scrutiny test.
o    Strict scrutiny- whether morality is a legitimate state interest; means end nexus test- it won’t fit because would the state have legislated sodomy in between a heterosexual couple.
o    The right of privacy will be strengthened when you talk about the idea of police bursting into someone’s home and bedroom to police homosexual activities.
Ø Lawrence v. Texas – Court focus on whether adult actions within their own home violates substantive due process rights. Police enter home and observe homosexual acts and arrest accordingly.
o    Should the court overrule Bowers v. Hardwick. Bowers got it wrong. Bowers failed to appreciate the liberties involved (more specifically the substantive due process protects). Court says that it fits in interest of intimate association category. The Bowers court failed to appreciate the liberty and dignity at stake.
o    Two groups emerging w/in the courts as to how tradition is viewed.   (Scalia) One says that based on tradition due process only protects a very narrow and limiting only protects deeply rooted traditions Tradition is the beginning and the end-tradition does not change v. the other view that says the attitude toward gays has changed over time. The Lawrence court is examining historical evidence just as justice Black did in Roe v Wade when he went back to Romans times…here the court is saying that the history of prohibition against homosexual sodomy are 70’s era vintage. Tradition may be the beginning but not the end!
o    The Lawrence court is saying that we ought not legislate morality
o    Find tradition highly constraining or limiting. This is a lot more ambiguous than the Bower court suggests.
o    Tradition may be starting point, but not the ending point. Rigid, fixed, clear. Should not impute moral values, and others on minorities. Two key points
Ø  1. What is the appropriate level of scrutiny? Texas law furthers no legitimate state interest (legitimate means rational basis review), usually once the courts said there was a right of privacy the court has generally used strict scrutiny. 
Ø 2. General notion of protecting liberty. Pub/Private dichotomy.
o    “Scalia: State laws against bigamy ……” In Bowers we say the state can legislate morality if you say we cannot legislate morality what does this do to our ability to legislate against prostitution etc, this is not the end of morality it is just taking us down a slippery slope.
o    The Lawrence court response is that this law does not involve minors, persons that might be injured by the act; it does not involve prostitution…no legitimate state interest.
Ø Two points: