Constitutional Law I Outline

CONSTITUTIONAL LAW I, GILREATH, SPRING 2016

TOPIC 1 – Federal Constitutional Rights as Restraints on State Governments in the Antebellum Era

RULE: The bill of rights does not apply to state governments

Barron v. Mayor and City Council of Baltimore, 1833: The Due Process of the 5th amendment only applies to the federal gov.
City working on street close to wharf, deposited sand and gravel in the area, making it useless. P says he is owed compensation because of 5th amendment. Nope, 5th amendment is only for national gov, each state governs itself

Privileges and Immunities Clause: citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states
(more- enacted because of slavery, etc.)

TOPIC 2 – Federal Constitutional Rights as Restraints on State Governments after the Civil War

• Incorporation and the Privileges or Immunities Clause

RULE: Privileges and Immunities Clause of the 14th amendment limits the US government, not state governments (guts P&I clause) (states decide which rights of their citizens to protect)

Slaughterhouse Cases, 1873: New Orleans passes law requiring butchers to slaughter their animals in a slaughterhouse outside the city for a fee. P argues this violates privileges and immunities clause of 14th amendment
Police power- private interests are subservient to the general interests of the community

13th and 14th amendment enacted solely for protection of former slaves (EP only meant to protect black people, DPC doesn’t protect freedom to work a trade)
This decision “slaughtered” P & I clause, made courts go to substantive due process instead

Twinning Test- Right should apply to state gov. if, historically, the right is fundamental to principle of liberty and justice.

TEST: whether, in light of historical practice, the right seems to be a fundamental principle of liberty and justice which inheres the very idea of free government
This starts debate between total incorporation (whole bill of rights applies, nothing more) and partial incorporation (have to decide if each right applies to states)

This opens door to additional rights protected under DPC

Criminal prosecution, Ds gave bank investors false info. Ds did not testify and the prosecutor used that to prove their guilt. Ds claim 5th amendment (no self incrimination) protected them, also 14th amendment (deprivation of life, liberty or property without due process). Bill of rights does not apply here
Cases using Twinning Test:

Meyer v. Nebraska, 1923: Court recognizes protection from state action on a free speech issue as a matter of due process. DP voided conviction of a teacher who taught a foreign language to a child below 8th grade
Gitlow v. NY; Near v. Minnesota; Stromberg v. CA: Courts rule that free speech/freedom of press limits states under 14th amendment

• Incorporation and Protection of Enumerated Substantive Rights under the Due Process Clause

Palko Test: 1937. Right upheld against state intrusion if it is fundamental to the scheme of justice. Palko Test is less historical than Twinning Test.

TEST: selective incorporation test- is the right of the very essence of the scheme of ordered liberty? Fundamental.
Federal double jeopardy standard (5th amendment) does not limit states (they can make their own rules about it)

This decision makes selective incorporation of bill of rights the rule

Rights incorporated after Palko:

Free exercise of religion limits states. Cantwell v. Connecticut: 1940; Everson v. Board of Education: 1947
Federal privilege against self-incrimination does NOT apply to states (5th amendment). Adamson v. CA, 1947: D convicted because of a failure to take the stand.
4th amendment limits states. Mapp v. Ohio, 1961
6th amendment limits states. Gideon v. Wainright, 1963. Pointer v. Texas, 1965 (confrontation clause- cross exam initiation). Klopfer v. NC, 1967 (right to a speedy trial).
Privilege against compelled self-incrimination applies to states. Overturns Adamson. Malloy v. Hogan, 1964
Compulsory process for obtaining witnesses applies to states through 14th amendment: Washington v. Texas, 1967.
Penumbra Approach:

Griswold v. Connecticut: 1965, Right of married couples to use birth control devices found in penumbra of BoR

Duncan Test: Modern test for whether a right should limit states

TEST: whether right is rooted in nation’s history and tradition. To determine if it is, look if other states are doing it
Duncan driving, saw his cousins fighting with other boys. Pulled over, shoved an elbow. Battery conviction, claims that 14th amendment guarantees a jury.
Right to a jury is among the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions

Rights that have not been incorporated against states today:

3rd amendment- gov. can’t quarter soldiers in your home without your consent (doesn’t happen today)
5th amendment- guarantee to grant jury indictment in a criminal trial
6th amendment- guarantee of unanimous jury verdict
7th amendment- right to jury trial in civil cases
8th amendment- excessive fine

TOPIC 3 –Protecting Unenumerated Substantive Rights Through Due Process

• Reviewing government action impacting unenumerated rights – the early era

JUDICIAL OVERREACHING- LOCHNER ERA (heightened scrutiny for everything)

Lochner v. New York, 1905: State Court applies strict scrutiny to everything, even if not a fundamental right

State passes a statute saying how many hours bakers can work. Court says this is unconstitutional, violates right to K
Laisez-faire attitude

Great Depression happens, Teddy Roosevelt and Woodrow Wilson favor gov. regulation of economy (demise of heightened scrutiny for everything)

Say when legislature passes a bill, it should be valid unless its violation of the constitution can be proven beyond a reasonable doubt. Otherwise courts are basically acting as a super legislature

RULE: 14th amendment, liberty included non-economic rights too (substantive, fundamental rights) (still a lochner era decision?)

Meyer v. Nebraska: 1923, a teacher teaches German to a student, in violation of state statute. Court says state statute is unconstitutional (violates 14th amendment), violates right to contract and raise children how you want.

Here, heightened scrutiny for a non-enumerated right

RULE: If the state can produce a rational reason for its legislation, then the court will accept it as constitutional (if not insane then ok)

West Coast Hotel v. Parish: 1935, minimum wage laws tested for constitutionality. In Lochner-era, states not permitted to regulate wages. Here, minimum wage law upheld because there is a rational basis for the law.

RULE: rational basis for determining if laws are constitutional- if it is debatable, it is not the court’s place to say (unless fundamental right)

US v. Carolene Products: 1938, Court upheld a federal prohibition on the interstate shipment of filled (oil) milk because whether this is a good law is debatable, and there is a rational reason for it. So decision should be made by Congress, not Courts.

RULE: If economic law has a rational basis, court should not question it. Rational basis

Williamson v. Lee Optical: 1955, Statute makes it unlawful for persons who are not licensed optometrists or ophthalmologists to fit glasses to a face

• The Revival of Unenumerated Rights Protections – family autonomy rights

RULE: DPC protects the interest of families to live together as fundamental. Heightened scrutiny (combination of Twining and Palko)

Moore v. City of Ease Cleveland: 1977, City housing ordinance limits occupancy of a dwelling unit to members of a single family. Moore’s family did not fit into this category. Moore received a notice of violation form the city, refused to have young boy leave house, criminally prosecuted.

Heightened scrutiny. Fundamental right to make choices regarding marriage and family rights

RULE: the DPC protects not just interests denominated as liberty or fundamental, but interests traditionally protected in our society.

Michael H. v. Gerald D: 1989, dispute between biological father and marital non-biological father to see child. Our values protect the marital family.

• Reviewing government action impacting unenumerated reproductive autonomy rights

Buck v. Bell, 1927: forced sterilization of the infirm or insane is constitutional (likened to forced vaccinations for public health- DPC doesn’t protect against)

“Three generations of imbeciles is enough”

Lochner Era, but rational basis used

This is overturned by Skinner v. OK, which said that procreation is a fundamental right, needs strict scrutiny

RULE: There is a right to privacy within the penumbra of the 1st amendment

Griswold v. CT, 1965: D arre