Curtis – Con Law 1 – 2013
Background and Incorporation
14th – clauses: EP, SDP, PI
5th – clauses: takings, due process (1887 chicago Burlington early incorporation 14th)
SDP – (less textually explicit rights) dread scott, roe wade, griswald, bowers, Gonzales
Full Faith and Credit – state to state recognition
Skinner 1942 Sterilization EP fundamental right
Griswold 1965 birth control – married couples
Eisenstadt 1972 Birth control unmarried
Roe 1973 abortion. Burger court majority, SDP
More 1977 grandmother and grandson family
Bowers 1986 Oral sex, gays. SDP
Michael H. 1989 Biological father, adultery
Casey – 1992 abortion again, PP in Penn. Waiting period etc.
Glucksberg 1997 assisted suicide
Stenberg v. Carhart 2000 D&E intact
Lawrence 2003 Anal sex, gays
Gonzales v. Carhart 2007 intact D&E, SDP.
Meyer & Pierce 1923 (liberty)
(Lochner (1905) era, SDP liberty); Buck (1927) (no liberty or EP right)
Skinner (EP: classification affecting a FR; FREP)
Rochin (SDP right; against stomach pumping
Griswold (penumbras; FR) [relation to due process?]
Roe (1973)(SDP liberty: FR).
Eisenstadt (1972, EP RB[B] and SDP) [note EP, rational basis [w/ bite?]
Belle Terre (1974 no SDP right);
Moore (1977)[?] (SDP liberty);
Bowers, oral sex (1986, No FR; RB); (Cruzan 1990; liberty, balancing);
Casey (1992, SDP liberty, [RBB?], no reference to fundamental rights);
Glucksburg (1997) (no SDP right to assisted suicide);
Lawrence, anal sex (2003,SDP liberty; RB[B]);
Gonzales, intact D&E (2007), RB with less bite.
1. Constitution (definition)
a. Definition: The fundamental governing document in a culture.
b. Characteristics:
1. It is a blueprint to solve practical problems and create the foundational structure of our government.
2. A collection of fundamental understandings, customs, institutions, and laws that establish how our political power will be exercised in society.
3. The process of formation is a good analytical tool for interpreting the meaning and intent of the text at the time it was drafted.
2. Note: The Constitution we have today is the “second” constitution after the Articles of Confederation.
3. Sovereignty
a. Natural Law Conception (Hobbes/Locke): Everyone is born with the ability for self-government. In civilized society, each person gives up his or her right to the government in order to protect against anarchy.
b. It is political capital or political legitimacy.
4. Articles of Confederation (1781-1789)
a. Preamble: “Articles of Confederation and perpetual Union between the States of New Hampshire, Virginia, Georgia, North Carolina…”
b. Article I: “The stile of this confederacy shall be “The United States of America”
c. Article II: “ Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. Summary: State v. Popular Sovereignty
d. Article III: “The said States hereby severally enter into a firm league of friendship with each other, for their common defence…”
e. Article IV: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different State in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice…” Summary: Slavery in the South
f. Article XIII: “Every State shall abide… Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United State and be afterwards confirmed by the Legislatures of every State.”
1. Technically means that the US Constitution is illegal
g. Themes: State Sovereignty, No implied federal powers, Lack of national identity
h. Flaws: No direct tax; No federal troops; No federal courts; No President ; Equal vote for every state; No implied federal powers (Straight-jacket)
5. Comparison to the Constitution
a. Chain of Power
1. AOC: People – States – Federal Government
2. Constitution: People – Federal – States
b. Implied Power in Constitution
6. Constitutional Convention (1787)
a. Purpose: Assess and amend the shortcomings of the Articles of Confederation
b. Federalism v. Anti-Federalism
1. Federalism: distribution of power between the central authority and constituent units. Mode of political organization that unites separate states in a way that maintains their political and fundamental integrity
A. Zero-sum game: power or sovereignty cannot be expanded at the federal level without taking power away from the states
2. Note: Federalists supported a strong federal government, whereas the anti-federalist wanted to the keep state sovereignty intact.
7. US Constitution (1788-Present)
a. Article I (Legislature)
1. Section 8: Powers of Congress with “necessary and proper” clause
2. Section 9: Limits on Federal government
3. Section 10: Limits on State governments (should be in Article IV)
b. Article II (Executive): Creates a federal judiciary
c. Article III (Judiciary)
d. Article IV (Limits on the States)
1. Section 2 [1]: Privileges and Immunities
A. When people travel some state to state, one state cannot make a distinction between its own citizens and others regarding fundamental rights.
2. Section 2 [3]: Fugitive Slave Clause
A. A state ordinarily has the power of its own citizens; however, you cannot assert authority over a runaway slave.
e. Article VI (Supremacy Clause)
1. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
2. Where the federal government has power it will trump state power. e.g., Fed minimum wage trumps state.
f. Article VII (Ratification Clause)
1. Constitution takes effect 9 of 13 states to ratify. Amendments only needs ¾ of states to enact
8. Bill of Rights – First Ten Amendments (1791)
a. 1st: Freedom of Expression
b. 2nd: Right to bear arms
c. 3rd: Quartering troops
d. 4th: Criminal procedure—Search and Seizure (Probable Clause)
e. 5th: criminal procedure—Double Jeopardy/Self-Incrimination
f. 6th: criminal procedure—Speedy Trial
g. 7th: criminal procedure – Jury Trial
h. 8th: criminal procedure—Cruel and Unusual Punishment
i. 9th: Non-enumerated rights
1. Even though certain rights are enumerated, there are other rights that should be protected against government inclusion
j. 10th: Rights not set out or prohibited are reserved to the states
9. Constitutional Interpretation
a. “Three Legged Stool”
1. History; Text ; Reasoning (Personal Policy Preference)
b. Methods of Interpretation
1. (Intrinsic) Text: drafter’s perspective- word choice, punctuation choice, for the portion of the Constitution involved in the case.
A. What are the drafters trying to convey? WARNING: Language is vague, few words have a finite meaning.
2. (Intrinsic) Context: always linked to text: how do other parts of the Constitution illuminate the portion in the case.
A. Look at the text at issue and then look for any text in the document that addresses a similar issue. You must assume that the drafters are consistent throughout the whole text.
3. (Intrinsic) Structure: how does the document as a whole suggest the issue in the case should be resolved?
A. What KIND of government were the framers trying to construct?
B. Example: No explicit right to vote. In order to have representatives, the people must vote them in.
C. Example 2: Nowhere does the Constitution define states.
4. (Extrinsic) History;
A. The history becomes a big bone of contention because it often conflicts with the text.
B. Example: Right to Bear Arms.
5. (Extrinsic) Public Policy;
A. The worst kind of argument.
B. Policy should be left to legislatures, we vote representatives into office to reflect policy preferences.
C. Should not be used to override a statute. The judiciary of one political leaning should not use their own policy preference to overturn the statute enacted by a legislature of another political leaning.
10. Separation of Powers
a. Definition: the distribution of power within the branches of government (judicial, executive, legislative)
1. Legislative: promulgates policy via statutes
2. Executive: enforces and implements policy details
3. Judicial: interprets and adjudicates
11. General and Enumerate Power
a. Enumerated: power given specifically to the Federal government in Article I, Section 8
b. General: ability for the STATE governments to legislate in the interest of the people (established by state constitutions)
1. Police Powers
A. Ability to regulate the health, safety, welfare, and morality of the citizens
B. Given exclusively to the states
12. Individual Rights in the Constitution (Habeus Corpus)
a. Article I, §9: “The privilege of the Writ of Habeus Corpus shall not be suspended unless when in Cases of Rebellion or Invasion, the public Safety may require it.
1. Historically, Habeus Corpus was quite limited. Habeus Corpus is the right to petition the federal judiciary to review a state conviction or detention that it is in violation of your protected rights.
b. Article I, §9: “No Bill of Attainder or ex post facto law shall be passed.”
1. Definition of Bill of Attainder: a law that directs the punishment of a particular person.
2. Definition of Ex Post Facto Law: a law that criminal punishes conduct that was lawful when it was done.
c. Article I, §10: Limits the state governments from passing Bills of Attainder or ex post facto laws.
d. Article III, §2: Trials for crimes shall be held in the state in which they were committed.
e. Article III, §3: Places strict requirements for any prosecution of Treason; no prosecution of family members of those found guilty of Treason.
f. Article IV, §2: “The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the Several states.”
1. limits the ability of states to discriminate against out of state citizens
13. Legal Jurisprudence (Positivist, Naturalist, Realist)
a.
Difference between vague and ambiguous:
– Vague: expresses a range of meanings
– Ambiguous: can express direct opposite meanings
Positivism: Only codified law should governed not judicial decisions
1. Human beings have the natural ability to govern themselves
2. Statutes can only be enacted by the duly authorized governmental entity.
3. Prefer enumerated powers or rights
b. Natural Law: Human affairs should be governed by ethical principles that are part of the very nature of things and that can be observed by reason
1. Example: “We hold these truths to be self-evident, that all men are created equal.”
14. Epistemology: a branch of philosophy that investigates the origin, nature, methods, and limits of human knowledge. (Main Question: “How do we know what we know?”)
a. Idealism: the philosophical theory that ideas are the only reality (synonym: rationalism)
1. Example: Mathematics, theology
2. Linked to “Truth”
3. Do you make boxes and then go find something in nature and fit it into one of those boxes?
b. Empiricism: the doctrine that all knowledge is derived from sense experience
1. Examples: Scientific method, chemistry
2. Linked to “validity”
3. Do you go out to observe and then try to fit everything you find into boxes?
c. Natural law: the doctrine that human affairs should be governed by ethical principles that are part of the very nature of things and that can be understood by reason.
1. “We hold these truths to be self-evident…”
2. Whether they are observed or not, they exist.
3. Believed by the Framers of the Constitution.
15. Barron v. City of Baltimore (1833)
a. Facts: Plaintiff’s wharf was damaged by the City of Baltimore. He argued that he was deprived of his property without just compensation in violation of the 5th Amendment.
b. Issue: Does the 5th Amendment apply to the states?
c. Rule: The protection of individual liberties in the Bill of Rights applies only to the Federal government, not to state or local governments. Never been expressly overruled.
d. Reasons:
1. The Constitution established and ordained the Federal government
2. Had the framers intended for the Bill of Rights to apply to the states, “they would have declared this purpose in plain and intelligible language.”
3. “The limitations on power, if expressed in general terms, are naturally, and we think, necessarily applicable to the government created by the instrument.”
4. Each state establishes its own Constitution to provide limitations on its particular government.
5. Pointed to other sections of the Constitution to show that if the Framers wanted to, they could have applied them to the state.
6. Historically, the amendments were seen to shield against the abuse of Federal power, not state power.
e. Counter-argument:
1. Some of the provisions in the Bill of Rights do not limit themselves only to the federal government—“Nor shall private property be taken for public use, without just compensation.”
16. Dred Scott Timeline
a. 1787: drafting of Constitution: Art. I, s. 2 [3], Art. I, s. 9, Art. IV, s. 2 [3].
b. Two Compromises:
1. Article 1, Section 2: 3/5 clause
2. Article 1, Section 9: Congress will able to abolish international slave trade
3. Article IV, Section 2: Fugitive slave laws
c. The original Constitution tacitly recognizes the slavery (structural reco
“privileges and immunities” not spelled out in the B of R.
2. Hale:
A. Theory: Textual
B. Intent: Opposed the 14th Amendment.
C. Reasoning:
i. The 14th Amendment was a departure from the federal system to meddle in state jurisdictional powers.
ii. The language of the amendment was vague.
iii. The Amendments do not grant any power; they are not matters upon which legislation may be made. Opposed to the part of the 14th amendment that gives them the power to legislate.
3. Howard:
A. Theory: Textual. Alludes to Natural Law.
B. Intent: To guarantee the right in the Bill of Rights and other “privileges and immunities” against state infringement.
C. Reasoning: The original Constitution does not afford any protection against State infringement on civil rights.
i. The language of the amendment affords all of these rights and gives Congress the necessary power to enforce them.
ii. Disables the State from depriving any person (citizen or non-citizen) of the rights guaranteed by the Constitution.
D. Meaning: Uses Corfield v. Coryell to help define “P & I,” but states that they cannot be defined. He also thinks that the Bill of Rights should be added.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
22. 15th Amendment (1870)
23. Privileges and Immunities
a. Referenced twice in the Constitution (Article IV, Section & 14th Amendment)
b. It is the place where one would naturally look in order to extend the Bill of Rights protection to the states.
c. Destroyed by Slaughter-House
d. Rooted in Natural Law
24. Corfield v. Coryell (1823)
a. Dicta: Privileges and Immunities are rights “which are, in their nature fundamental; which belong, of right, to the citizens of all free governments.” “The enjoyment of life and liberty and pursue and obtain happiness and safety.”
1. “More tedious than difficult to enumerate.” “Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeus corpus; to institute and maintain actions of any kind in the court of the state; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileged deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.”
25. Slaughter-House Cases
a. Facts: Louisiana legislature passed a statute requiring city butchers to use a new, state of the art, central slaughterhouse located well away from downtown neighborhoods. It was open to all butchers upon payment of a fee, but slaughterers could not slaughter anywhere else. Increased competition because now blacks who could not afford to come into the business were able to. It took monopoly away from the whites and gave it to the government. [People were pissed about integration efforts.]
b. Issue: Did the Louisiana statute violate the privileges and immunities clause of the 14th Amendment? Did the P & I clause protect the citizens of the United States from State deprivation of rights?
c. Holding: The statute does not violate the P & I clause of the 14th Amendment.
d. Reasoning:
1. [History] 13th and 15th solely enacted to protect former slaves and protect solely to protect African Americans. 14th enacted to give Congress the means make states
2. [History] Held that the equal protection clause only meant to protect blacks.
3. [Textual] Distinguished “citizens of the states” and “citizens of the United States;” Amendment speaks only to the privileges and immunities of citizens of the United States, and does not speak of those citizens of the several States.
4. [Textual] The word citizen of the state should have been left out when it was “so carefully used, and used in the contradistinction to the citizens of the United States, in the very sentence it precedes”
5. [Contextual] In a few places, the Constitution textually restricts the state; except for those restrictions, state legislatures have the power to define P & I for their citizens.
6. [General] Rejected the application of the due process clause to protect a right to practice one’s trade.
7. [Contextual] Privileges and immunities clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.
8. [Contextual] Interpreting the amendment to allow Supreme Court to review all legislation would constitute this court as the perpetual censor upon all legislation of the States.
9. [History] At the time the Bill of Rights was adopted, the people/delegates feared the federal government.
10. [General] Did not undertake to define P & I, but simply stated that it did not protect the rights the plaintiffs claimed
