CONSTITUTIONAL LAW I GILREATH SPRING 2011
INTRO: INTERPRETING THE CONSTITUTION
I. Types of Argument
A. When may the gov’t infringe on the Const law?
1) None of our rights are indefeasible
2) Sometimes outweighed by government interests
i) Have to balance govt. interests against Const rights for individuals
B. Originalism v. Non-originalism
1) Originalism: right to interpret the Const only the way it’s explicitly expressed in the text to divine the intention of the framers
i. If the Const is silent, legislative/action and majority rule should take its course.
ii. Rights should only evolve by amending the Constitution
a. Importance of the democratic process for the originalists
iii. Originalists often look at Original Intent and Original Meaning
a. Original Intent—Looking at what the framers meant—looking at debates of framers at Const Convention or various ratifying conventions and attempt to decide what the consensus view of the framers would be w/ regard to any given right
b. Original Meaning—Using dictionary to define meaning of 1789 and using that definition in 2011.
– Can produce archaic results
2) Non-originalism: the Court may and should protect rights that are not expressed in the text, even if the intention of framers isn’t clear
i. The Constitution as an organic and evolving document
a. Should be made meaningful for successive generations of Americans
b. “Liberty” is pregnant with a list of rights the Court can infer from the overall spirit of the Cons—even if not included in the BoR: unenumerated rights
– Ex: right to privacy gives us Roe v. Wade
C. Plessy v. Ferguson (1986)
i. Facts: Plessy was 7/8 white, yet was evicted from the railway car.
-Plessy refused to sit in the black railway car and was arrested for violating 1890 Louisiana statute that provided for segregated “separate but equal” railroad accommodations.
ii. Set-up by railways and AA’s to see what SC would do in light of post-war amens
13th A- banned slavery
14th A- AA citizenship clause, due process clause, equal protection clause
15th A- gives former male slaves the right to vote
iii. Holding: SC (Justice Brown) decided that a Louisiana law mandating separate but equal accommodations for blacks and whites on intrastate railroads was constitutional and did not deny AA’s EP
a. This decision provided the legal foundation to justify many other actions by state and local governments to socially separate blacks and whites.
b. Purpose of the 14th A was to enforce equality of 2 races before the law
– Separate buy equal is enough
– Object of the law was not to enforce social comingling of 2 races
iv. Harlan’s Dissent: Separate but equal is not equal.
a. This is a way of keeping AAs away from whites, not from keeping both races away from each other.
v. Plessy remains the law for over 50 years.
D. Brown v. Board of Education (1954)
i. Facts: Q of whether separate but equal schools for AA and whites are actually equal
ii. Holding: Warren- implied right in Const not to be subject of racial and hostile persecution.
a. Violation of the EPC of the 14th A
b. Even if facilities are actually equal, separating black children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
UNIT 1- DUE PROCESS OF LAW AND FUNDAMENTAL RIGHTS
“No person shall be…deprived of life, liberty, or property, without due process of law.” 5th A
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Section 1, 14th A
I. Federal Constitutional Rights as Restraints on State Governments in the Antebellum Era
A. Intro: Substantive Due Process (SDP)
i. At a minimum, the govt must have a rational basis for infringing rights protected as “substantive due process” rights (we call this rational basis scrutiny)
ii. Some rights are so important the governments must show a “compelling” (strict scrutiny) interest before infringing these rights
§ Can be no more than necessary
iii. So what rights get strict scrutiny?
§ Fundamental Rights
ú Some enumerated, largely in 8th A.
ú Some are unenumerated, like right to privacy, abortion, etc.
ú Court confers them from the overall spirit or context of the Constitution
iv. In the mid-19th c., the court begins to take action to ensure that the states do not infringe upon the rights guaranteed in the Constitution.
§ The story of how we get individual rights at the state level begins as a federalism question, with Barron
B. Barron v. Mayor and City Council of Baltimore (1833)
i. Facts: The P, Barona wharf owner, sued the D, the city of Baltimore, for taking his property without compensation in violation of the Takings Clause of the 5th A of the Const.
ii. H/R: The 5th A does not apply to local and state gov’t, only to fed gov’t.
i. Framers intent/original intent arg
ii. Each state formulated their own Cons, so the A’s did not apply to them
iii. Had the people of the states desired to restrict the power of state gov’t, they had the power to do so when they ratified their state const
C. 9th A: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
§ Not invoked to rectify Baron’s problems
§ Now, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.
II. Federal Constitutional Rights as Restraints on State Governments after the Civil War
A. Incorporation and the Privileges or Immunities Clause (P&I)
i. Privileges and Immunities Clause of the 14th A.: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
§ 1) right to travel to the national capital
§ 2) access to seaports
§ 3) access to federal courts/offices in any state
§ 4) right to protection on high seas and diplomatic aid
§ 5) assembly/petition/habeas corpus
§ 6) use of navigable interstate waterways
§ 7) right to “transfer” of state citizenship
§ 8) rights secured by 13th and 15th amens.
§ 9) right to due process
ii. Slaughterhouse Cases (1873)
§ Facts: LA 1869 law created a state corporation with exclusive power to slaughter livestock
o Independent butchers not included in the monopoly claimed that the law deprived them of their right to “exercise their trade” and challenged it under the 13th and 14th A’s.
§ H/R: The 13th and 14th A’s do not guarantee def protection of individual rights of all citizens of the U.S. against discrimination by their own state gov’ts
o States have proper police power to limit slaughterhouse operations for the health and safety of their residents.
o The 13th, 14th (and 15th) A’s were ratified to counteract evils of discrim’n against former slaves
§ Meant to guarantee fed privileges, not state privileges
o The P&I Clause did not create add’l rights—merely required states to apply its laws equally to non-state residents as well as state res.
§ Not in
self-incrimination is not incorporated into the DPC of the 14th A
ú The court held that freedom from testimonial compulsion is neither a right of national citizenship, nor a personal privilege or immunity secured by the Federal Constitution as one of the rights of man listed in the BoR.
ú Freedom from compelled testimony is not an inherent element in the right to a fair trial.
iii. The Incorporation Debate and Warren Court
§ Heated argument between Frankfurter and Black over Selective v. Total Incorporation
ú Frankfurter: debated has existed for over 70 years and selective incorporation should be the norm.
ú Black: Original intent behind 14th A was as a whole to reverse Baron and incorporate all of the BoR against states.
· Why should judges be able to decide if someone’s right is fundamental or not
ú Black’s view is dissent in Adamson, but the SC has essentially gotten around to incorporating all of the BoR against the States.
iv. Duncan v. Louisiana (1968)
§ Facts: The Appellant, Gary Duncan was convicted of simple battery, a misdemeanor, in a Louisiana district court. Under Louisiana law, jury trials are not granted in misdemeanor cases. The Appellant claimed the state’s denial of trial by jury violated the Const.
§ H/R: The Const. was violated when Appellant’s demand for a jury trial was refused.
ú The 14th A of the Const guarantees a right of trial by jury in all criminal cases.
ú Trial by jury in criminal cases is fundamental to the American scheme of justice because it works to prevent governmental oppression.
ú Right of trial by jury in serious criminal cases works as a defense against arbitrary law enforcement and qualifies for protection under the Due Process clause of the Fourteenth Amendment of the constitution.
ú Black (concurring): selective incorporation process has virtue of having already worked to incorporate BoR against the states (but still prefers total incorporation).
v. Note re Black: would use P&I clause to overrule Slaughterhouse
§ In history of SC, only gets 2 justices to agree with him
· Douglas (concurring in Duncan)
· Clarence Thomas: came to a head recently in McDonald v. Chicago (2010)
-Thomas’s concurring opinion: “I agree w/ the Court that the 14 A. makes the right to keep and bear arms set forth in the 2 A. ‘fully applicable to the States.’…[B]ut I cannot agree that it is enforceable against the States through a clause that speaks only to ‘process.’ Instead, the right to keep and bear arms… applies to the States through the 14 A.’s P& I Clause.”
· Not a single justice on SC wrote to disagree with Thomas
· Possible revival of P&I clause?
vi. 7th A and Incorporation?
§ 7th A- right to jury trial in certain civil cases
§ Unlikely SC will incorporate 7th A against States—Court has been pretty adamant about not doing so
vii. No SC decision re 3rd A (quartering of soldier’s in one’s home)
x. Selective Incorporation opens up a host of possibilities unpalatable to Originalists
§ Allows for unenumerated rights to become Constitutionally guaranteed
ú Right to privacy (to buy birth control), for ex.
§ SDP rights that exist nowhere in the Cons
ú Eventually gives us Roe v. Wade
