Constitutional Law II Outline

Definitions
·          Procedural Due Process – includes an individual’s right to be adequately notified of charges or proceedings, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction. In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of procedural rights under the Bill of Rights, most of which have been incorporated under the Fourteenth Amendment to the States. Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of “life, liberty, or property” without a fair opportunity to affect the judgment or result.
·          Substantive Due Process – Modern substantive due process doctrine protects rights such as the right to privacy, under which rights of private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade) fall, as well as most of the substantive protections of the Bill of Rights. However, what are seen as failures to protect enough of our basic liberties, and what are seen as past abuses and present excesses of this doctrine, continue to spur debate over its use.
·          1st Amendment – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridge the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the government for redress of grievances.
·          5th Amendment – No person shall be subject to……nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
·          14th Amendment – No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US. 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.
·          9th Amendment – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Explain Please)
·          We talk of fundamental rights and protected liberty interests. Think of a liberty interest as something you may do without interference by, or sanction from, the state. I have a liberty interest in watching football on Saturday afternoons. That liberty interest is constitutionally protected; the degree of protection depends on whether that liberty interest is also a fundamental right (in that example, not likely, especially if my wife has other plans for me!). As we discussed in class, liberty interests are contrasted with things that are not protected by the Constitution. You have no protected liberty interest in punching someone else in the nose. You are free to punch someone in the nose, but you must be willing to accept the consequences. The state will interfere with that conduct, or punish you for it (absent sufficient justification or excuse). I agree with you that the term “protected right” is redundant; so we should think of it, in constitutional terms, as fundamental rights versus liberty interests that are protected by the Constitution.
 
1.        14th Amendment – passed as part of the reconstruction era after the civil war.
A.       Prior to passage and ratification, our political system was bottom heavy – when protection of civil liberties, that task belonged to the states not the federal government. Remedy was to go complain at the state level.
B.       The 14th inverted that system. The Federal government said they don’t trust the states anymore.
C.       Main Concept
1.        Fundamental rights or substantive due process doctrine is the jurisprudential successor to the Lochner era’s economic substantive due process.
a)       Lochner focus was on economic rights – protect contract and property
(1)     Likely to strike down laws on wages, hours.
b)       Today, the focus is on non-economic or personal rights – protect privacy and autonomy
2.        Today is the Fundamental Rights Doctrine
a)       Right to Privacy – personal autonomy.
D.       3 Historical Phases
1.        1787 to 1890’s – very little attention paid to individual rights. 
a)       There was no call to the SCt, it was left to the states.
2.        Lochner Era (1890 to 1930)
a)       Focus on economic and property rights
b)       Widely discredited and do not tell a judge they are Lochnerising. This is akin to telling them they are making law and it is not their job.
3.        Fundamental Rights Era (1930’s to Present)
a)       Successor to economic due process
E.       Slaughterhouse Cases (1873)
1.        Privileges or Immunities
a)       This clause in the 14th Amendment only protects the Privileges and Immunities that are given to citizens of the United States. Court said there is nothing much else here.
2.        Due Process: No real substantive component
a)       Court said it is all about process and procedure that is used, but there is no substantive part to the due process clause. There are no rights exsting under the due process clause that we can protect.
3.        Equal Protection Clause
a)       Court said it was to protect the slaves and nothing more. We doubt that equal protection will ever be used to do anything more.
4.        Net Outcome – strangle the P and I clause. It was rendered a nullity, and has largely remained one ever since.
5.        How are we going to get these rights protected? Put them in the due process clause. This was the only place we can find to put un-enumerated rights. It should have been put in the P & I clause but never was.
6.        This case is still good law as relates to P & I but not the other ones.
F.       The Rise of Substantive Due Process
1.        Post Slaughter house the spectrum was not in favor of regulating civil rights – Things began to change
a)       Mulger v Kansas (1887) – saying law enacted pursuant to police power doesn’t make it so. Courts will inquire whether law has real or substantial relation to police power.
b)       Allgeyer v Kansas (1897) – the right to contract wins over police power
2.        Lochner v New York – 1905 (Bakers Case)
a)       14th – right to make a contract in relation to his business is part of the individual liberty protected by the 14th amendment.
b)       No reasonable ground for interfering with right of baker to determine hours of labor
c)       No reasonable foundation for law as means to protect public health or health of bakers.
d)       Contract, employment, bakers is not in the 14th amendment.
e)       There is nothing about being a baker that is so hazardous, unhealthy that the state has a right to stick there nose in it. The interference with the rights of the individual is not saved form condemnation by the claim that it passed in the exercise of police power.
f)         Lochner embodies the principal of Lazie Faire. Court was of the opinion that the government should be hands off.
3.        Nebbia v New York (milk selling case) – 1934
a)       Court had found a variety of price regulation laws violated substantive due process
b)       Justice Roberts Signaled the end – He switched sides
(1)     States right to regulate in the public interest is equally fundamental to the individual right to freedom of contract
(2)     Due process means only that law not be “unreasonable, arbitrary or capricious” and that means have “real and substantial relation” to the end the state seeks to achieve.
(3)     Coming more back to center
c)       This is the beginning of the end of Lochner.
d)       Textual argument: due process clause doesn’t mention sales, prices, business, contracts
(1)     No more protecting unenumerated rights?
e)       Competence argument: courts are “without authority either to declare [economic] policy, or, when it is declared…to override it.”
2.        Modern Substantive Due Process
A.       US v Carolene Products (1938) – Filled Milk Case
1.        Justice Stone says that from now on economic and social regulations are entitled to a presumption of constitutionality and must be upheld if supported by any rational basis.
2.        Where existence of a rational basis for legislation is challenged, it is the challenger’s burden to show that there are no set of facts either known or which we might be able to reasonably assume.
a)       almost an impossible burden to overcome.
3.        Ordinary, social and economic regulations.
4.        So much for liberty of contract and protected right to engage in trade, business or occupation, and working conditions as you see fit – is a movement away from protecting these things.
B.       MODEL To Analyze – Rational Basis Test
1.        economic and social regulations are entitled to a presumption of constitutionality and must be upheld if supported by any rational basis to a legitimate state interest
2.        99.9% of the time the regulation will survive constitutional review.
3.        If the court hypothesizes a set of facts that can support the regulation, it will be upheld. Challenger has the burden to show that there are not There are no set of facts that are known or reasonably be assumed.
4.        Burden of Proof – it lies on the challenger at all times
5.        Over inclusive and under inclusive are insufficient to strike down under rational basis review.
C.       Carolene Products Footnote 4 (Year 1938)
1.        Opened a new door to protect interests and values by way of due process. 3 categories that might enjoy protection.
a)       Legislation that “textually” is within a specific prohibition such as found in the Bill of Rights
(1)     We will look more closely.
b)       Legislation that restricts political process
(1)     Gets special scrutiny
(2)     If your interests are being burdened your first line of resource is the political process
(3)     If a state law impairs the political process, it may inter…..
(4)     Cases dealing with voting rights and freedom of expression and political association. 
c)       Laws that impair the ability of “discrete (identifiable) and insular (as a whole) minorities”
(1)     Racial, national and religious minorities are prime candidates for protection
2.        Court says we are out of substantive due process when it comes to ordinary economic and social regulations. Rational Basis is the standard. Are courts out of substantive due process business? No they just swapped it for personal rights business
D.       Williamson v Lee Optical – Eyeglasses case
1.        Stands for proposition that ordinary social or economic legislation will not be scrutinized
2.        Court plays “what if” game.
a)       The court thinks that is what the legislature might have been thinking, and this is good enough for them.
3.        Stands for proposition that ordinary social or economic legislation will not be scrutinized.
4.        The law need not be in every respect logically consistent with its aims to be constitutional.
5.        We cannot say the law has no rational relation to a legitimate end – to make it unconstitutional.
3.        Fundamental Rights
A.       Certain Rights, or Fundamental Rights may be textual (enumerated) or non-textual (our concern is here)
B.       General Rule
1.        Any regulation that substantially impairs exercise of a fundamental right will be strictly scrutinized by the courts, and will be upheld only if narrowly tailored (least restrictive means) to meet a compelling government interest.
2.        Unlike Rational Basis. If a law is subject to SS the state bears burden that it has a compelling interest and has used the least restrictive means.
3.        If no fundamental right is involved, regulation will be upheld if it bears a rational relationship to a legitimate state interest.
a)       Health, safety, welfare, morals, Saving Money, reducing burdens of government.
b)       State Wins – Rational Relationship
c)       State Loses – Compelling interest, SS. 
(1)     St