CON LAW II OUTLINE
I. ART IV, § 2: PRIVILEGES & IMMUNITIES CLAUSE
1)Citizens of each state can claim the privileges [fundamental rights] of citizens of the several states.
a)The states bestow these privileges, not nat’l gov. USSC defines them (fundy and/or non-fundy).
b)Ultimately,state v. fed’l government argument
i)If defined by fed’l gov, we carry those privileges with us wherever we go.
2)Corfield: PA residents did NOT have privilege to rake oysters in NJ. (source of privilege: NJ law)
a)Held:Fundamental right to work; no fundamental right to rake oysters
i)Oysters are a unique NJ property
b)Historically important dictum: Justice WASHINGTON: life, liberty, property, pursuit of happiness, have commensurate taxes, vote
c)Held: P shouldn’t have been suing for trespass. (Justice’s backup position)
3)Baldwin: no privilege for non-residents to hunt elk for same cost as Montana residents (source: MT law).
a)Elk hunting by nonresidents in Montana is a recreation and a sport
b)Dissent (BRENNAN): alternative interpretation of Art. IV § 2.
i)Privilege ≠ fundamental rights. Should be ANY right.
ii)Thinks purpose of Art. IV, § 2 is todiscourage discrimination (here, based on non-residency).
(1)Must have justification.
4)Piper: the right to work (practice law) is a fundamental right.
a)Rat: More important than shrimping; lawyers aren’t like oysters (not state property)
i)Non-commercial role; officer of the court; enforce laws
ii)See Doe v. Bolton, pg 17 ls.
(1)GA abortion statute limited abortions to only GA residents
(2)Held: obtaining an abortion (or medical care) is a fundamental right under Art. 4 § 2.
(a)GA residents have access to medical care; so should non-residents
(3)Companion case to Roe v. Wade (but there = right to privacy)
b)Piper important because it reinforces and broadens Doe v. Bolton:
i)You can provide non-residents w/ medical services.
ii)P&I clause applies to commercial and non-commercial rights.
c)State does not have justification for infringing non-absolute right
i)For justification:
(1)Substantial reason forinfringement (here: proximity to NH) = OKAY
(2)Substantial relationship between the means and the end
(a)Narrowly tailored (“least restrictive means”) = NO. Many other ways around this problem.
ii)Strict Scrutiny (REHNQUIST’s issue/problem w/ the case)
II. POST-CIVIL WAR AMENDMENTS: “FUNDAMENTAL” RIGHTS & THE INCORP. DISPUTE
- 13A: banning slavery (for everyone)
- Civil Rights Act of 1866 (to counteract Black Codes): lots of rights (see p 25 ls), but only for equality on basis of race
- President argued that this was not appropriate legislation, then…
- 14A: no state shall make law that abridges privileges… we all enjoy (P&I Clause; DP Clause; EP Clause)
- Purpose: to make CR Act of 1866 enforceable
- Aimed at Black Codes: to give basis to USSC to reverse the Black Codes
- No absolute rights in 14A (DP and PI clauses)
5)Slaughter-House Cases: LA law creating corp. to centralize all slaughterhouses in New Orleans = CONST
a)Court is asked to give construction to the 13th and 14th Amendments (PI Clause)
b)But Ps are here re: monopoly and right to work!
i)Right to work: Art. IV, § 2 (see NH lawyer case) – in original CONST
ii)Privileges can be fundamental or non-fundamental
(1)Here, MILLER seems to think they are fundamental. Consistent w/ Art. IV § 2.
(2)But protections intended only to adhere to white people, not blacks
c)Holding:
i)14A protects only "privileges or immunities" conferred by U.S. but not by state citizenship
d)Dissent (FIELDS): finds right to work. Privileges are fundamental common rights. p. 345.
i)Must be justification for the discrimination (p. 345 bottom)
(1)Here, public health and safety.
e)Dissent (BRADLEY): privilege of U.S. is a fundamental right.
6)Bradwell v. State: Illinois law re: no women lawyers = CONST
a)Holding: As w/ Slaughterhouse, no fundamental right to work as a lawyer in Illinois
b)BRADLEY: there is a fundamental right to work in Art. IV § 2
i)But, here, state has justification to abridge this privilege
(1)Men are better suited for law than women. Women should be wives and mothers.
7)Saenz v. Roe: CA law requiring year of residency before getting full welfare benefits UNCONST
a)P says violates right to travel in P&I clause (citing Slaughterhouse Cases)
b)Holding: STEVENS:There is fundamental right to travel.
c)Dissent:THOMAS: distinction between (negative) liberties and positive legal rights.
i)Negative liberty: gives you freedom; you can tell State to butt out of your rights. Natural law.
(1)Steven’s majority framed it as negative liberty – right to travel.
ii)Positive legal rights: statutory in nature; give us real, tangible benefits. Gift to you from state. You consent to be governed by the state, and it gives you something back. Ex: right to welfare benefits.
(1)Here, P asking for something you can’t get from the CONST.
iii)Thomas doesn’t like the substantive DP stuff, giving liberty (privacy) to have abortion.
(1)Would resuscitate “privilege” as a negative liberty.
The “Incorporation” of the Bill of Rights through the Due Process Clause
- 14A: No state shall abridge the privileges of any U.S. citizen. [without justification]
- Privileges can be fundamental or non-fundamental
- Where do you find fundamental rights?
- Bill of Rights. Selective.
- Also, unenumerated fundamental rights. (Corfield right to work(Art IV, § 2))
8)Twining: no fundamental right for privilege against self incrimination (not valid law today)
a)Issue: Whether 14ADP clause applies to the state, through the “liberty” portion
b)Held: Privilege against SI (5A) is non-fundamental liberty. You do not incorporate n-f liberties.
9)Palko v. Connecticut: no fundamental right against double jeopardy
a)Issue: whether we can incorporate 5A via the 14A?
b)Holding (CARDOZO): this right is important, but not fundamental.
i)Selective incorporation.
ii)For incorporation, must be a fundamental liberty (e.g., free speech, freedom of religion)
c)BLACK wants total incorporation. Because too much subjectivity otherwise.
d)Now: full criminal procedural rights, except: no right to grand jury indictment (in state crim trial), 8A
10)Duncan v. Louisiana:fundamental right to jury trial in criminal cases (WHITE)
a)Issue: Whether to incorporate criminal right to jury trial via 14a. YES.
b)Note 1, p 360 (know rights: speech, religion, property. Not incorporated 2a, 3a, 7a (civil right)
c)CARDOZO (selective incorporation – winner!) v. BLACK (total incorporation)
d)14A clause recognizes fundy right. Can include selective application of BoR: 6a right to jury trial
e)Now: 2A will be before USSC soon. 7a not addressed because state CONSTs already include.
f)Today: selective incorporation: all criminal process guarantees of BoRs applicable to states, except 5A (grand jury indictment) and 8A (excessive bail)
III. SUBSTANTIVE DUE PROCESS – focuses on the “Liberty” in the Due Process Clause
14A: No state shall deprive any person of life, liberty, or property w/o due process [w/o justification]
Liberty = fundamental or non-fundamental rights
- These fundamental rights can be found in:
- Selective incorporation of Bill of Rights. Such as jury trial (Duncan).
- Unenumerated (ex: right to work as a lawyer [no longer], right to marry)
Now, if you want right to work as a lawyer, you can allude to prior case law, such as Piper. (Lochner)
- Fundamental liberty interest in the right to work. Lochner, Piper.
- Lochner: 14A DP clause protects freedom to contract.
- Substantive due process! Using the DP clause as substitute for PI clause
- Today, Lochner era is over. No fundamental right to work as a lawyer.
- Lochner leftovers:Meyer (right to teach German), Pierce (right to direct kids’ education)
Slaughterhouse cases: no fundamental rights in P&I clause.
Substantive Due Process: Liberty = Privacy
11)Griswold v. Connecticut: law prohibited use of (and assisting in) contraception.
a)About promoting procreation, and is pro-life.
b)P arg: married couple has liberty interest – PRIVACY
i)Cites Meyer: liberty = right to marry (right to choose who you’ll marry, where you’ll marry, etc.)
c)DOUGLAS: Unenumerated liberty interest (i.e., not in Bill of Rights)in privacy
i)Doesn’t want to go back to Lochner.
d)HARLAN: concur. Selective inc. of 14A (selected portions of BoR + unenumerated rights!)
i)Case by case basis.
e)BLACK: dissent. No unenumerated rights. Only willing to incorporate Bill of Rights
f)STEWART: dissent.To get rid of this law, need to address via your state CONST.
12)Loving v. Virginia:VA’s ban on black/white marriage UNCONST (DP substantive, EP)
a)Prohibited only interracial marriages involving white persons = white supremacy law
13)Zablocki v. Redhail: Law re: can’t get marriage license until proven you’re not a deadbeat dad UNCONST
a)P theory: DP. Interferes w/ unenumerated liberty interest (right to marry)
b)Held: UNCONST under strict scrutiny(not narrowly tailored, not best way to ensure dad pays)
c)Concurrence (POWELL): intermediate scrutiny
d)Dissent (REHNQUIST): dissent. Should be low-level scrutiny.
14)Turnerv. Safley: prison regulation restricting prison inmates’ right to marry UNCONST
a)O’CONNOR: decision to marry is a fundamental right
b)Intermediate scrutiny. See wording re: “reasonable relationship” p. 452.
i)Looking for important gov’t interest (IGO): rehab and security concerns.
(1)Law related to IGO? No.
(2)Problem in relation from means to end. Like Zablocki.
c)POWELL and REHNQUIST concurred.
15)Bowers v. Hardwick
16)Lawrence v. Texas: Sodomy law criminalizing homosexual sex = UNCONST
a)KENNEDY: liberty interest in private sexual activity (gay sex)
i)“…liberty of the person both in its spatial and more transcendent dimensions”
ii)Vs. Bowers (GA) forbade any sodomy, even heterosexual. Moral justification: wrong to have sex without procreation. Back to Griswold!
b)Struck down! Not an EP decision; it’s a LIBERTY (sDP) decision!
c)What level of scrutiny?
i)If fundamental interest, strict or intermediate scrutiny. If not, low.
ii)Strict scrutiny? (just like HARLAN in Griswold)
(1)CSI in Bowers? Not enough that it wants to promote public morality
iii)If low scrutiny, would need LGO + rationally related means
d)BUT, KENNEDY never says there’s a fundamental liberty interest in private sexual activity.
i)So, he’s applying low-level scrutiny. But how, if it’s a fundamental liberty interest?
ii)Prof: KENNEDY should have said what STEVENS said in Bowers dissent.
e)Bowers overruled.
f)O’CONNOR concurrence:
i)Agrees law is UNCONST, but for violating 14A EP Clause, NOT for 14A DP Clause
ii)“More searching review” = LL scrutiny with bite intermediate scrutiny
iii)Bare desire to harm politically unpopular group can never be LGO.
(1)Moral disapproval is insufficient to satisfy rational basis review.
iv)Still approves of Bowers (law forbidding any sodomy CONST)
v)OK w/ law prohibiting same-sex marriage, w/ LL scrutiny. LGO = maintaining traditional marriage.
g)Dissent: SCALIA.
i)Apply LL scrutiny. Promotion of morality is good enough.
(1)He’ll have to think of another reason, since Bowers overruled and morality isn’t enough
ii)No liberty in 14a (sDP). If this opinion reads like low-level scrutiny, then all kinds of stuff would be allowed. You didn’t use the right analysis. GOTCHA!
iii)If TX ss-sodomy is in violation of EP, then many other statutes will be stricken. Need state CONST amendments. There will be spate of marriage lawsuits. Prophetic!
IV. EQUAL PROTECTION: Race Discrimination
No state shall deny EP [without justification] – 14A
17)Strauder v. West Virginia – very important case! All white jury = UNCONST
a)STRONG: Didn’t say what level of scrutiny, but did analyze CSI. No CSI!
i)“Badge of inferiority”
ii)Okay to discriminate re: age, males, etc., on juror requirements, just not on racial basis
b)Dictum: EP applies to non-blacks, too.
c)Note 2, p 488
i)Social functions harder to enforce equal treatment for blacks thancivic functions
V. THE RECONSTRUCTION AMENDMENTS:
State Action & Congressional Power to Enforce Civil Rights
1. Civil Rights Statutes of the Reconstruction Era
- 1875 Civil Rights Act: contained “public accommodation” provisions and mostly held UNCONST as exceeding C’s power in the Civil Rights Cases (see below)
- 1871 Act (AKA Ku Klux Klan Act) established civil liabilities w/ parallel criminal liabilities
2. The Requirement of State Action
18)Civil Rights Cases (1883): C didn’t have CONST authority to outlaw racial discrimination by private individuals and organizations.
a)BRADLEY: can’t give anyone special rights under our CONST because we are all equal. If you have a problem w/ discrimination, go to Congress to get legislation to remedy it.
i)1875 Civil Rights Act = UNCONST
ii)No violation of 14a because Ds not state actors
iii)No violation of 13a – “nothing to do with slavery.”
iv)Plants the seed for Commerce Clause regulation (interstate commerce clause)
b)Dissent (HARLAN)
i)13A protected against slavery AND its “badges and incidents”
ii)Civil Rights 1875: CONST
iii)Can enforce under 14A: all races be treated equally in the U.S.
(1)14A: C not restricted to the enforcement of prohibitions upon State laws or State action. 14A targets not only states, but people who run places of public accommodation. Broad view.
iv)Legal v. social rights, p. 680. C protects LEGAL rights such as these.
19)Shelley v. Kraemer – State’s participation in enforcing restrictive covenants = state action
a)VINSON (appointed by Truman): Judicial action = state action = denial of E/P.
b)Equal application doesn’t matter (first time USSC says that)
c)Stronger 14A enforcement
d)Saying there’s a RIGHT TO PROPERTY (14a; defined as privilege here), as well as EP (14a)
20)Evans v. Abney
a)First Evans case: it’s state action to establish a park for whites only.
b)Second Evans case: park reverting back to owner (via will) = NO state action.
c)BLACK: Just acknowledging the failure of a trust (HM: loss of park shared equally by whites/blacks?)
21)PA v. Board of Directors of Trusts: city enforcing school trust solely for “poor white male orphans” = SA
a)City very involved. The school board was an agency of the state.
b)Shows affirmative action vs. sitting back
22)Burton v. Wilmington Parking Authority: discriminatory coffee shop in public parking lot = state action
a)CLARK: city parking lot + coffee shop so interdependent that city = joint participant in discrimination
i)This is at the very edge of finding state action.
b)STEWART concur: State law had been construed by ct.to permit race discrimination in places of PA
c)Then Congress passed Civil Rights Act of 1964 (applies to private & public – CC)
State involvement through licensing
23)Moose Lodge: REHNQUIST: private club’s racial discrimination NOT state action
a)DOUGLAS dissent: democrat
b)BRENNAN dissent: pervasive regulatory scheme = state action
State “encouragement” of private discrimination
24)Reitman v. Mulkey: CA Prop 14 repealed anti-discriminatory housing laws = state action (WHITE)
a)HARLAN dissent: a repeal of a statute is inaction; nonfeasance!
25)Jackson v. Met Ed Co. – Monopoly ≠ state action
a)P claims denial of procedural state action of 13a.
b)Tests used in the past: interaction between state and private entity (intertwining of state/private action)
c)REHNQUIST: has the agency become sufficiently involved w/ Met Ed to say Met Ed is state actor?
i)No. Key: PUC didn’t say anything about method of termination.
d)Dissent (MARSHALL):
i)We must apply Burton(intertwining) test, and there is sufficient intertwining here to = SA
ii)Wants Burton doctrine to apply to race-based classifications
iii)Private parties can still be held liable if they’re so involved w/ public entity
Note 4, p. 695: Decisions Finding State Action to be Present
26)Lugar v. Edmonson: Creditor attaching debtor’s property pursuant to state law = SA
27)Edmonson v. Leesville: private party’s use of peremptory challenges in civil proceeding to exclude jurors on basis of race = SA (5-3)
a)KENNEDY: when gov’t actor helps private litigation in court order, etc., state action (Shelley)
b)Dissent: O’CONNOR, Rehnquist, Scalia
i)O’C: necessary to show that the gov’t was involved in the specific decision challenged
ii)SCALIA: Distorting the doctrine of state action where race at issue!
28)Brentwood Academy: interscholastic athletics association of public/private schools = state actor
a)Here, an association is a D. 83% are public. So predominantly public that there is state action
b)The public and private schools are intertwined; therefore, the association is a state actor
Note 3: The Insufficiency of State Inaction
29)DeShaney v. Winnebago County Social Svcs. Dept. – KNOW THIS
a)Holding: child welfare dept’s failure to protect child from known child abuse does not violate DP
b)Claim: substantive due process. Deprived of his liberty w/o Due Process
i)Negative liberties (that’s the problem here; “liberty” doesn’t give him what he wants)
ii)Positive liberties
c)REHNQUIST:
i)Point is moot; there’s not ACTION here, just INACTION (non-feasors) (see Jackson)
ii)Applies tort law (1/2)
(1)If you have someone in custody, you must protect
(2)But if you have special relationship w/ the plaintiff, you’re not under obligation
iii)Two ways to see REHNQUIST argument
(1)Kid trying to get a positive liberty – strict constitutionalist argument
(2)Pragmatic floodgate argument
d)Dissent by BRENNAN, MARSHALL and BLACKMUN
i)Inaction is as abusive of power as inaction
ii)BLACKMUN: too formalistic argument between action and inaction
e)Legislation is another avenue for relief
f)Shrinking of Burton(intertwining test) in this case
Back to E/P and Racial Discrimination
School discrimination
30)Missouri v. Canada: law discriminating against blacks attending state law school UNCONST even where state will pay for tuition for an out of state law school (p. 490)
a)HUGHES: state obligated to furnish P w/ education substantially equal to those offered to whites
b)No separate school for him to go to in MO, therefore, P must be admitted to existing law school
c)Dissent: McREYNOLDS – P didn’t really want to go to law school
31)Sweatts v. Painter: required blacks’ admission to TX law school although state had law school for blacks
a)VINSON: Unequal school; in terms of tangible and intangible (alumni, reputation, etc.) qualities
32)Plessy v. Ferguson:segregated RR cars okay if “separate but equal”
a)Majority (BROWN): no different than segregated schools. Everything is segregated.
i)13A inapplicable
ii)Equal Application Doctrine: if law applies equally to whites / non-whites, no denial of EP.
b)Dissent (HARLAN):
i)Purpose was to exclude blacks from white coaches, not vice versa
(1)Statute interferes w/ personal freedom of citizens.
(2)No superior, dominant, ruling class of citizens. No castes. Our CONST is color blind!
(3)Race-based classification
c)Prof: denial of EP if you see a case where it is burdening X and benefiting non-X.
33)Kore-Matsu v. U.S.:strict scrutiny used for the first time; denial of EP CAN be justified
a)Fed’l order said curfews could be imposed among Japanese;those living on coast had to move inland.
b)Objective: protect national security.
c)Race-based classification.
d)BLACK: no violation of EP clause; must give state an opportunity to justify its denial of EP.
i)Compelling state interest?
(1)BLACK: national security.
ii)Means necessary to the end? (prof: this is where the judges do their real scrutiny)