Con Law II
Schindler
Choper 10th ed.
Michaelmas 2008
09/05/2008:
Dred Scott, 1857
· Scott, a slave, was brought by his master to free land, Wisconsin and Illinois where they lived, Scott married and had a family while there before moving back to Missouri where he was sold. Scott then sued claiming that because he was in a free state domiciled for some time was now a free man.
· Court ruled that Scott was not a citizen at all, but that he was property. Thus, the court claims that they did not have jurisdiction. Court went on to state that the Missouri compromise was also unconstitutional because citizens have the fundamental right to possess property. Thus, by depriving people of their slaves w/o due process of law is unconstitutional.
Post War Problem
· Problem Response
· Slaves are property Thirteenth Amendment
· South imposes “Black Codes” Civil rights act of 1866 (all individuals
(Freedmen cannot contract, etc.) born in the USA are citizens; all citizens
Have the right to contract, own land etc.
· But…Under Dred Scott, AA’s are not citizens
Under our constitution. And congress cannot XIV Amendment
Rewrite the Constitution (Marbury)
· But, the privileges and immunities of citizenship XV Amendment
Does not include the right to vote (ie women)
The Penultimate Question:
1. What is really protected by Equal protection and What is Liberty? (Restated: What kind of state laws can be struck down as being violative of these two provisions?)
· The Options:
-Option one: All of the Bill of Rights and nothing more
-Option two: Some of the Bill of Rights and some “unenumerated” rights
-Option three: All of the Bill of rights and some “unenumerated” rights.
-Option four: No such thing as SDP and EP only requires “equality” (Prevent all free speech or all speech).
· What standard of scrutiny?
-Any law that violates is void ab initio
-rational basis etc.
-Strict scrutiny
-Something in between.
Take Home Points
· The Bill of Righst is Selectively incorporated under XIV
· Most have been incorporated (Unanimous juries and Grand Juries being the major exceptions)
· But, XIV is broader than just the Bill of Rights (As evidenced by Griswold)
· Jot-for-jot is generally the rule, except in the size of juries and unanimity. (Any logic here?)
Carolene Products: Answering the Standard of Review Question
1. There may be narrower scope for operation of the presumption of constitutionality when:
-Law appears to effect the first 8 amendments
-Law restricts “political processes” that would otherwise act a “check” on undesirable litigation
-Law impacts a “discrete and insular” minority
2. Consider: Federal law that requires placement of Ten Commandments in courts
3. Query: What is so special about these three categories? Process based? Substance based?
(Note to self: What DP when DP is prevented)
How do we define the right?
-Narrow—Michael H.
-Broadly
Whats the Hook for creating?
– Ninth Am.
– Defining liberty—14th am.
– Emanating penumbras
– Natural Law
– LIBERTY—DEFINING IT
What sources can we consider
– Bill of rights? Some? All?
– History
– Other countries
– State law
–
ed consent, 24 hr. waiting period etc.
· A law is unconstitutional as an undue burden on a woman’s right to an abortion b/f fetal viability if the law places a substantial obstacle in the path of a woman seeking to exercise her right.
1. Roe stands for proposition that women can obtain an abortion prior to viability w/o undue interference from state—this is a misstatement of Roe
2. Second recast: Roe allows state to ban after viability if the law contains exceptions for pregnancies that endanger a woman’s life or health. This is no longer good law ie Gonzalez.
3. State has a legitimate interest in protecting the women and the health (but not the life?) of a fetus that may become a child (Query—what is the logic that you can prote4ct one’s health but not one’s life?) Aren’t these compelling state interests?
Laws that prohibit abortion fall 100% on women; thus there is the possibility of an equal protection violation.
“Intensely divisive decisions should get special treatment and only reversed if most people would agree that the precedent was wrongly decided.
1. Unworkable
2. Reliance
3. Factual or legal basis has changed.
· From Casey…standard of review is now “undue balance” b/c states interests are now greater than we thought.
· In the first six months, a state law is illegal only if it places an undue burden on women.
· Undue Burden = purpose or effect is to place a substantial obstacle in the path of a woman’s choice.
