Constitutional Law I
FISHER
Winter 2016
WEEK 1
DUE PROCESS
5th Amendment – applies to protect the people from the federal government and federal power.
• ‘No person shall … be deprived of … life, liberty, or property, without due process of law.’ It is not a prohibition, it is a process
14th Amendment – adopted to protect people from state government and state power.
• ‘No state shall make or enforce a 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; nor deny to any person within its jurisdiction the equal protection of the laws.’
Procedural Due Process – • Requires government to use the appropriate procedure for depriving life, liberty, or property. Limits government action by requiring the government to provide notice to and an opportunity to be heard by a person prior to the deprivation of his or her liberty or property rights.
Substantive Due Process – • imposes limits on the substance of governmental action and regulation – probes whether the government has an adequate reason for depriving a person of life, liberty, or property. (i.e. question is whether there is a sufficient justification for the deprivation of life, liberty, or property.
• 3 phases in the historical development of the law with regard to due process •
(I) First Century (1787-1890) – very little attention paid to individual rights.
(II) Lochner Era (1890-1930) – focus on economic and property rights.
(III) Fundamental Rights Era (1930-Present) – privacy and personal liberty.
McDonald v. City of Chicago – provides glimpse of the essence of this course: substantive due process vs. privileges or immunities. Chicago’s amendment was to limit the ability to have handguns for self-defense purposes and somebody challenges that. 2nd amendment is brought up, intended to protect the people from the federal government. But in this case, it was not the federal government that was enacting this, it was Chicago; a branch of state government. The question becomes: can you assert the 2nd amendment right against the state? The first argument made by the petitioner is yes the 2nd amendment applies against the states based upon the privileges and immunities clause. Petitioner is asking the court to look at the Slaughterhouse case because it was wrong. The majority did not accept this argument. It has been settle law for so long. Court does not reconsider privileges and immunities; no basis for making these important rights applicable against the state. Does not mean case is over; there is another avenue the court finds here to make the 2nd amendment applicable against the states – the Due Process clause in section 1 of the 14th amendment. The point is that in this case, the court points out that over a period of time, all these rights have been found to be applicable against the states – not by the privileges and immunities clause – but by the 14th amendment Due Process clause. Dissent says no we are not limited to that; the test is not just that; it is much more and it is our responsibility to identify these rights. Court concludes that these fundamental important become applicable through the 14th amendment and the Due Process clause of the 14th amendment against the states.
• These enumerated rights and some unenumerated (implied) rights in the U.S. Constitution are applicable against the states and the vehicle is the 5th amendment Due Process clause.
• The protection that citizens have against the federal government and the first 10 amendments are held over to make sure that the same enumerated rights are protected against the states in the 14th amendments. You use the 14th amendment to protect people from the same things the first 10 amendments from the federal government.
• The 5th amendment was passed to protect people from the federal government which is why it is not directly applicable against the states.
Lochner v. New York – N.Y statutes that was limiting/forbidding bakers to work more than 10 hours. State law was going to protect the bakers. Reason for law was for the protection of the health, safety, and welfare (police power, which states have), that they do not get overworked. The employers thought it was okay if they worked more hours. Companies say they do not have to work here. The court says there is a right to contract. This is economic liberty. On the basis of that the court says that this economic liberty trumps the police power protection. The court says that there is no legitimate police power protection here. This economic liberty prevails. The economic liberty to contract between employer and employee as protected by the 14th amendment, which would be through the due process clause. This is applying the federal constitution against the state through the due process clause. The court makes it clear that they are no substituting their judgment for that of the legislature.
Nebbia v. New York – N.Y. established law that set a maximum the price at which milk can be sold (can’t sell milk for more than this amount). They were trying to set maximum and minimum prices. There was a store that was selling milk lower than the minimum price that was permitted in the statute. The statute is allowed to continue. The court talks about disrupting a state statute saying that the state legislature prevails. “No it is not up to us to second guess what the state is doing; our job is to find whether the statute meets certain requirements and if it is not arbitrary; if it is passed for a legitimate police-power purpose and it is rational, that is up to the state. We will defer to the state.” – this is opposite of Lochner. The court determines whether a law conforms with due process, the court says that it is the elected branch that makes the law and we are merely determine whether they are authorize to act and whether they have any real or substantial relation to the object sought object sought to be attained. So if they have a legitimate police power objective and the law relevant for that, we are not going to get in the way —> complete overhaul, different from Lochner. Due Process means only that law not be “unreasonable, arbitrary, or capricious” and that means have “real and substantial relation” to the end state seeks to achieve.
LEVELS OF COURT SCRUTINY
• RATIONAL BASIS REVIEW – when a law does not impact a fundamental right.
– Challenger has burden of proof:
1. no conceivable legitimate objective for the legislation OR
2. that the means chosen for achievement of the objective are just unreasonable and arbitrary.
– The attributes of rational basis review it is a review that a very favorable and deferential to the government. It is presumed valid. The government almost always wins because it is not testing the objective that the government is trying to achieve here, whether it is any conceivable legitimate objective. Even a hypothetical one that the court invents as part of the opinion, that is enough for the government to win. The court is essentially saying “we don’t make the rules”; the legislature is elected to make the rule and we are going to give them the benefit of the doubt. The only reason we are going to get in the way is if they do not have any possible objective that is legitimate or that ht means that they have chosen are unreasonable and arbitrary.
• STRICT SCRUTINY – when a right is found to be fundamental.
– Here, the government has the burden of proof. The government has to prove that the legislation seeks to achieve a compelling government interest AND even if it is a compelling interest, this legislation is n
te required informed consent (informing the husband) in a 24 waiting period. There was not a clear majority opinion here. 3 justices that wrote a joint opinion. The right to choose an abortion is not a fundamental right. Holding: woman has a right to choose to have an abortion before viability and to obtain it without undue burden from the state — before viability the state’s interests are not strong enough to support a prohibition on abortion or the imposition of a substantial obstacle to her right to choose. Majority agreed that the critical issue is viability, thus effectively abandoning trimester framework.
• State has every right to regulate unless it results in an undue burden on the women’s right to choose before viability.
• Upholds idea that a women has a right to choose an abortion before viability.
• Continued from Roe with the idea that a state cannot prohibit but can regulate abortion.
• It changed the calculus, pushed out trimester approach, and the fundamental right approach and established the undue burden approach – a regulation may not result in an undue burden on a woman’s right to choose.
• Undue burden – a regulation may not have the effect of creating an undue burden on a woman’s right to choose an abortion before viability.
– only had the signature of 3 justices.
– this remains the rule.
• In many respects people say that Roe v. Wade is the case and we are living under Roe. This is only partially true because we are only living under Roe with regard only to the ruling that a woman has a right to choose before viability. To have an understanding on the abortion question, read Casey.
Stenberg v. Carhart (2000) & Gonzales v. Carhart (2007)
In terms of interpreting ‘undue burden’. A Nebraska law prohibited partial birth abortion (fetus is actually partially delivered as a living set of cells and then the life is terminated). Court held that the statute was unconstitutional because it created a definition of partial birth abortion that was not clear enough so that a doctor would know whether they were violating the statute. The court did not like this. There was a similar issue in terms of whether the procedure of partial birth abortion was important to protect the health of the mother — is it more risky not to do the abortion or more risky to do it? The court said we are not sure and so we are going to resolve this in favor of the mother. Congress passes a federal statute that prohibits the kind of partial birth abortion that Nebraska was attempting to prohibit. The statute made it clear for the doctors, they would have to intentionally violate the law. The court in the 2nd case (federal statute case) said we do not know whether performing this is going to be sufficiently safe or unsafe but in the federal statute case, the court says we are going to resolve this in favor of the child and not allow this procedure. The federal statute is upheld.
Standard changed – now it must be an undue burden on a large fraction of women. It is not just one or two women, a regulation is only going to be impermissible if it creates an undue burden on a large fraction of women.
VIABILITY Issue:
Roe – about 7 months: 3rd trimester, but may occur earlier, “even at 24 weeks”
Webster – trimester approach from Roe: too rigid.
Casey – rejects the trimester framework
