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Constitutional Law II
Villanova University School of Law
Walsh, Kevin

I. The Evolution of Constitutional Law

1. The Founding Era

a. The Origins of the Bill of Rights

Anti-Federalist Complaints About the Lack of a Bill of Rights

The Anti Federalists complain that the new constitution is defective because it does not protect individual rights.

Centinel I, Independent Gazetteer

Samuel Bryant of Pennsylvania on the absence of a Bill of Rights from the Constitution, supports it:
Bryant has a problem with the fact that the PA constitution assures PA freemen freedom from unwarranted searches and seizures, freedom of speech and of the press, while the US Constitution does not. Moreover he points out the fact that the SCOTUS has appellate jurisdiction to both law and fact, which is a novelty in jurisprudence. All this, Bryant says, amounts to a tyranical aristocracy in the Federal Government.

Federalist Objections to a Bill of Rights

The Federalists support the Constitution even without the Bill of Rights.
James Wilson on the same subject, opposes Bill of Rights:
The Federal Government is a government of enumerated rights, and whatever is not granted to it is reserved for the states, and it is unnecessary to enumerate them b/c it’s a government of limited powers, and it’s dangerous because if they’re listed then rights are left out and unenumerated rights have a lower status. Therefore, just because no specific protections are made for such things like the freedom of the press or speech, so long as states protect them under their constitutions, there is no reason to fear that the federal government will impinge upon them because it has on power to do so. A constitution cannot include all powers and rights because there’s no space and you can’t think of all of them, which is why they are reserved to the state.

James Iredell argues the same points as Wilson, adding:
Not only is there no space to enumerate all rights, but a dangerous perception may be created suggesting that only those enumerated rights are granted to the people and none other.

The Anti-Federalist Reply

Robert Yates, in support of the Bill:
States incorporate the protection of the Bill in their constitutions because, supposedly, with the state, what is not reserved is granted, while with the Fed, what is reserved is not granted is reserved. However, this reasoning does not work because the Fed has just as much power to arrest someone and move them around the country as the state does, and everything else related to the criminal process. Basically he’s saying that freedom of the press and so on are not implied.

James Madison Delivers on the Promise of a Bill of Rights

Madison, in favor of bill of rights:
Madison advises that rights should be sprinkled within the constitution itself, not by adding a separate bill of rights. His argument is that the structural placement of the grant of powers to the branches of government imply that all rights that were present in the states before the Constitution was adopted are retained by the states.

Enumerated rights vs. unenumerated rights

The argument is that laying out the structure of government and the method of enforcing laws is more important than enumerating rights on paper because enumerated rights are useless without enforcement. The Soviet constitution said you are allowed to criticize the government, but it was a useless right because it wasn’t enforced and you weren’t allowed to do it. Here, you can question executive action, you can sue your own government, etc.

b. The Alien and Sedition Acts

The Alien Act gave the president the power to detain individuals who are considered government enemies.
The Sedition Act served to quash criticism of the government, and people could go to jail for very little because it was broadly worded.

c. The Virginia Resolutions

The Constitution matters outside of courts. In England, the Constitution is unwritten, and it constrains only the Crown. Here, it constrains all branches of government. Americans need broad powers to criticize their government, and the Anti-Federalists feel there is not enough power to criticize the government.

2. The Reconstruction Era

a. The Thirteenth and Fourteenth Amendments

Limiting the Privileges or Immunities Clause

The Thirteenth Amendment abolished slavery and Jim Crow laws like the specific crime of black on white rape, special enforcement of involuntary servitude contracts, and vagrancy laws that kicked out black people, as well as the 3/5ths provisions that avoided overrepresentation of southern states in Congress.
Under Barron v Baltimore, the Bill of Rights only applies against the federal government.
The Bill of Rights uses “no state shall,” which is language from Barron in order to directly overturn it and apply due process to states.
Due process and equal protection clauses have a broader reach than the privileges and immunities clause. Privileges and immunities are for citizens of the US. The due process and equal protection clauses apply to any person, not just to citizens.

The Slaughter-House Cases
LA’s legislature passed an act that established a monopoly over all slaughterhouses in New Orleans, and gave it to a company. All butchers in New Orleans had to do their slaughtering at this one location after they paid a fee. Petitioners lose on all counts.
[OVERTURNED] The 14th amendment establishes two types of citizenships, national citizenship with its own set of rights, and state citizenship with a separate set of rights, and the privileges and immunities clause only applies against the federal government.
These rights include the right to land at national ports, protection on the high seas, petition the federal government, and so on. The claims in this case are under state citizenship and do not fall under the privileges and immunities clause. This is a bizzare concept because the Civil War was not fought for the right to land at national ports, it was fought to cast off oppression by any government.
The 14th amendment was meant to overturn Dredd Scott, which asserted that any person of African descent, whether free or not, was not and could never be a US citizen.
Here, no African slaves were involved, only LA butchers, so they can’t claim rights under the fourteenth amendment.

[DISSENT, CURRENT CONTROLLING LAW, NOW DONE THROUGH DUE PROCESS CLAUSE] The 14th amendment protects citizens from their state legislatures through the privileges and immunities clause, which is defined in Civil Rights Act as the right to “make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.”

The right to one’s own labor is one of the most funamental rights possessed, as mentioned in Smith’s Wealth of Nations.

Bradwell p 281
Married woman wanted to become a lawyer but couldn’t b/c laws of coventure made her contracts void.
[OVERTURNED RULE] The privileges and immunities clause pro

e turn of the century.

vi. Facially Neutral Laws

These are laws that are neutral on their face but in these two cases are discriminatory in the way they are applied.

Yick Wo
City of San Francisco passed legislation banning laundries in wooden buildings without permits. Two thirds of laundries were ran by Chinese persons, and all but one of them who applied for permits were denied.
A law that is facially neutral can be challenged when it is discriminatory in its application.
While the statute here is not discriminatory on its face since it regulates safety, it is discriminatory in application because supervisors do not give any reason for denying Chinese laundry operators licenses to do their job other than because it is their will. They apply the law with an “evil eye.” Note, however, that the facts must be egregious, and the state must give no reason for their discrimination. This case is out there in the spectrum.
Also, the fourteenth amendment applies here because it does not limit itself to protecting only citizens because it says “all persons.”

vii. The “separate but equal” doctrine

Plessy
LA passed a segregation law separating whites from blacks on passenger train cars. Plessy wanted to be seated in a white coach, claiming he is white (1/8 black 7/8 white).
[OVERTURNED] While the 14th amendment was meant to give equal political rights to whites and blacks, it was not meant to give equal social standing to the two races.
The court bought the state’s justification that the law was in place for the public good because it established “usages, customs and traditions of the people.” This establishes how weak state reasoning has to be for a law to be upheld. “No reason not to” is not good enough, but any other justification works.
HARLAN dissent:
There is no caste system in the US, and one race cannot subjugate the other.
These statutes are designed to stamp inferiority on the black race, which is counter to the intent of the 14th amendment.
Government has to be color blind in making certain decision even if it means inquiring into the real purpose of a statute.
When does a court go “behind the statute” of a facially neutral law and into the intent in application? In Plessy, Harlan went behind the statute, in Yick Wo the court did not. [My opinion: look at the facts of the case, and at the totality of the circumstances.]

3. The Progressive Era Court
a. The First Amendment

Schenk
Soldiers began mailing pamphlets urging other soldiers to assert their rights and oppose the draft. The military prevented the transmission of those pamphlets through the Espionage Act.
A person may not falsely shout “fire” in a crowded theater, or utter any other words that have the effect of force. If words create a clear and present danger, Congress has a right to prevent that speech.