Con Law II
5th + 14th Amend
Procedural Due Process Substantive Due Process
Notice + Opportunity Liberty Interest
To Respond “Fundamental Right”
E.g. Privacy
Due Process-
14th Equal Protection
Classification Schemes – suspect classes e.g. race, ethnicity
If you are a plaintiff you want to elevate the level of scrutiny to convince the court of a fundamental right or suspect class schemes,
3 Levels of Scrutiny
1) Rational basis- government has a legitimate concern e.g. Low level economic liberty interest
2) Immediate Scrutiny-substantial, great interest it does not have to be compelling. Easier for the state to win.
3) Strict Scrutiny- When a fundamental right or suspect class is involved. Burden shifts to the government. They have to show there is a compelling gov. interest. (Dormant Commerce Clause)
PDP
a. Before gov take action to abridge our liberties we need Notice + Opportunity to respond. Ex. Trying to revoke a driver license. Gov has to tell you they are taking it away.
b. The greater the hurt the more due process you get. (Adversial proceedings.)
SDP
c. implicit in our notion of conduct of ordered liberty.
d. P is asking crt to substitute the act of the legislature… courts are reluctant to do
that but will if gov. is regulating a “Fundamental right strand of equal protection.
FYI
a.Baron v Mayor and city counsel of Baltimore-First 10 amendments apply to the fedgov.
b. Right to bear arms are not incorporated against the states.
c. First part of the 14th is a result of Dred Scott-slaves had to have DP
Slaughter House cases
d. 13th Amendment-codified the emancipation Proclamation and makes it clear that slavery will not be allowed. Butchers can’t make an argument on 13th.
e. 14th – Privileges and immunities clause… equalize the playing field for the slaves. Butcher can’t benefit they are no former slaves. Crt. Draws Daly and apply (P and I)
to national citizenship. Not state citizenship, here in the case its employment interest. This is a state citizenship.
The Lochner Era
State are doing to much to interfere with right to contract. Prior 1936-narrow scope of the commerce clause. (Allgeyer v. Louisiana)
Lochner v. New York (1905
Crts- say the NY Legislature is in the interest of the people (SDP) struck down the NY law.
Rule of law
Nebbia
Fundamental rt. To contract is dropped down to a low test. This is a rational basis test.
Nebbia challenged unconstitutional DP.
West Coast Hotel v. Parrish
US v. Caroline Products
a. If a gov. abridge our rights= strict scrutiny.
b. In the 40’s- 60’s crt accepting a broader view of commerce clause and given state more deference.
The rule of law-
court will apply the rational basis does not exist.
Williamson
SDP went into hibernation for 30 yrs and then resurrected.
Fundamental Rights Strand of Equal Protection
Skinner-
Skinner argues that this violates prohibition (F. Rgt.)
Crt add both F. Rgt classification
After Nebbia SDP has a neg. Connotation and come up with the term Fund. Rts Strand of EP
Griswold v. Connecticut-
-then we have a right to receive information. 3rd-prohibition of soldiers. (We have a zone privacy in our home) 4th Amendment-Freedom from unreasonable searches and seizures. 9th Amendment is the catchall . to make that enumerated right was not a exhaustive list and did not preclude other rights.
-married couples can receive info on contraceptives gov. cannot deny this intrusion. There is a zone of privacy. This is a fundamental right that we all have.
Rule of law-
Penumberal emumeration- combination of 3rd 4th 5th and 9th.
Concurring judge comfortable just resting on the 9th amendment.
Maj. 7-2 Rt. To privacy
It is rear that gov, can withstand a strict scrutiny.
Gov normally wins a rational basis application.
9th A- provides that enumeration of any rights contained therein are not to be construed as denying or disparaging other rights retained by the people.
Fundamental Rights- Abortion
Tri-mester Framework
Mother health………………
1st 2nd 3rd
Conception viability Potential life Birth
Roe v. Wade- Roe a single women wished to have pregnancy terminated by a abortion. Challenge to state laws making it a crime to procure an abortion except by medical advice to save the life of a mother.
Rule –
Blackmon said ladies had a right to abortion. He uses the trimester framework in which the point off viability is important.
Two Compelling Interests
Threshold Issue: Is the fetus a Human?
Is there a fundamental right? A women right to privacy. Griswold establishes a personal zone of privacy.
Court here recognizes the woman fundamental right to choose whether to terminate her pregnancy.
Conception- 1st trimester- right to choose is absolute unlimited. Government cannot interfere because there is no compelling Gov. Interest.
2nd trimester- compelling interest towards the child. Have stronger power toward the end of the second trimester
Compelling at the point of viability
28 weeks (7 months)
State can regulate it heavy unless th
otential of human life
the right of privacy found in the 14th amendment’s concept of personal liberty and restrictions upon state action is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The right to mental privacy, although, not explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation which sweeps unnecessarily broad.right to privacy flows from 1st amendment
chicken thief. OK statute thief will be sterilized. His attn. says it’s improper. This is an equal protection case, its it a classification scheme issue chicken thieves vs. non chicken thieves. Not SDP.- crt said its not there job to substitute as long as state have good reason to do so. In cases challenging the constitutionality of legislation affecting ordinary commercial transactions, the supreme- Carolene Products was attempting to have the “Filled Milk Act.”state articulate 3 Levels of Scrutiny. – 1937 prior to Lochner sustained state statute for women’s min. wage pre cursory to Nebbia.- NY passed a law provision for setting of max and min milk prices.- To be fair, reasonable, and appropriate use of a state’s police power, an act must have a direct relation, as a means to an end, to appropriate and legitimate state objectives.) – NY statute is 10 day or 60 hr wk constitutional or interferes with individual liberties. A right to contract boosted to a fundamental right.- interpreting for first time the 13th and 14th Amendment.
Substantive limitations on gov. on what kind of reg. they can pass in how it affects our liberties.
“Liberty Interests” Fundamental Rights
1) Enumerated- specifically spelled out in the Constitution ex. Freedom of religion, speech, press
2) Unenumerated not specially spelled out. Ex. Abortion, privacy, marriage.
clause in the 5th and 14th amendment to USC providing that no person shall be deprived of life liberty, or property, w/o due process of the law.
