Introduction and American Constitutionalism in Historical Perspective Introduction

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1. Due Process and the Methodology of Incorporation

  • Historical Evolution of Constitution

    • 1787 Constitution



Art. I §9: no infringement of habeas corpus, no bills of attainder or ex post facto laws

Art. III: treason very narrowly defined (requires overt act); guarantee of jury trial

Art. I §10: contracts clause (Blaisdell)

no bills of attainder, no ex post facto law

Art. IV §2: privileges and immunities

Art. IV §4: every state must have a republican government-regarded as a political question, courts have never intervened but Congress has

    • 1791 Bill of Rights

      • Barron v. Mayor (1833) (Marshall): Bill of Rights does not apply to the states

    • Reconstruction Amendments

      • 14th amendment 1868:

        • four elements of Sec. 1:

          • everyone born in America is a citizen (overrules Dred Scott)

          • due process

          • equal protection

          • privileges and immunities

      • 15th amendment: no disenfranchisement on the basis of race

    • Slaughterhouse Cases

      • butchers challenged Louisiana slaughterhouse monopoly as abridging their right to work

      • Miller’s opinion:

        • 13th amendment: involuntary servitude should be read narrowly; 15th amendment does not apply

        • 14th amendment:

          • does not consider due process and says equal protection was only meant to deal with racism

          • privileges and immunities:

            • textual argument: distinguishes these privileges and immunities from those in Art. IV §2 because here it says “citizens of the US”

            • ignores Congressional record

        • Result: narrows conception of privileges and immunities such that all development of substantive rights will ultimately come through substantive due process

  • Right of Interstate Mobility

    • Edwards v. California (1941) (Byrnes) (Anti-Okie law)

      • majority relied solely on commerce clause

      • Douglas’ concurrence: violation of a right of national citizenship protected by privileges and immunities clause of 14th amendment

    • Shapiro v. Thompson (1969) (Brennan)

      • used “fundamental rights” equal protection strict scrutiny to strike down law denying welfare benefits to those living in state less than one year

    • Dunn v. Blumstein (1972) (Marshall)

      • used equal protection to strike down one-year residency requirement for voting

    • Memorial v. Maricopa (1974) (Marshall)

      • invalidated one year requirement for medical care based on equal protection

    • Sosna v. Iowa (1975) (Rehnquist)

      • upheld one-year residency requirement for divorce

    • Saenz v. Roe (1999) (Stevens)

      • struck down differential welfare levels based on length of residence as unconstitutional under 14th amendment privileges and immunities clause (could not rely on commerce clause because there was already Congressional statute waving this

  • Theories of Incorporation

Total Incorp.

Selective Incorporation

J. Black: Art. 1-9, but no more

J. Cardozo: could a system be just without the right? (Palko)

J. White: given Anglo-American conception of justice, is this right essential? (Duncan)

same as Duncan, Harlan: accepts incorporation only to extent fair purposes require (how does this differ from Cardozo?)

Note: now all criminal process guarantees have been incorporated except for grand jury indictment requirement

    • Palko v. Connecticut (1937) (Cardozo)

      • claimed that his retrial after prosecution’s appeal violated double jeopardy; Cardozo held 14th amendment only incorporated those portions of the Bill of Rights essential to liberty and justice

      • dissent: this approach is too malleable

    • Adamson v. California (1947) (Reed, Black dissent)

      • majority found 5th amendment right against self-incrimination not incorporated under Palko

      • Black’s Dissent: the “natural law” pick and choose approach degrades the Bill of Right; 14th amendment incorporated the entire Bill of Rights

        • relies on speeches by Howard and Bingham

      • Frankfurter concurrence: have to allow states to experiment

    • Duncan v. Louisiana (1968) (White)

      • jury trial is fundamental to Anglo-American conception of justice; (book describes it as looking at the right generally, not the facts of the particular case)

      • Harlan concurrence: only fundamental fairness required

    • Williams v. Florida (1970) (White)

      • White says jury trial does not require 12 jurors for state trials

      • (seems to give credence to Frankfurter’s concerns that extending to states would eventually cause warping and weakening of the rights)

VII. Substantive Due Process: Emerging Rights to Personal Autonomy or Personhood

Unenumerated Rights

Speech and Religion







1. dignity

2. equality (ban on content-based restrictions)

right to work

marital association/

right to intimate life

right of intimate association

right of intimate association

right of intimate association

Compelling secular state purpose

1. clear and present danger

2. compelling secular interest

Peckham would accept:

1. harm to self (workers)

2. harm to others (consumers)

1. prevent extramarital/ premarital sex

2. belief that non-procreational sex is wrong

1. health/ life of mother

2. potential life

1. prevent non-procreational sex

2. health risks

1. The Rise and Fall of Substantive Economic Due Process

  • Lochner v. New York (1905) (Peckham, Harlan and Holmes’ dissents)

    • invalidated NY law limiting number of hours worked by bakers as violative of the right to work (substantive economic due process)

    • Peckham says protection of health and safety of consumers and workers would be valid state purpose, but equality is not

      • Lochnerizing is the delegitimation, without justification, of a valid democratic state purpose and taking a subject for democratic legislation and making it a judicial subject

    • Harlan’s dissent: majority refused to look at legislative facts supporting the statute because they turned legislative matter into judicial matter; also notes that equality is a legitimate state purpose

    • Holmes’ dissent: Court should be more deferential when it is not a fundamental right like free speech

      • they have crammed their social Darwinist ideology into the Constitution and used it to delegitimate a legitimate state purpose

      • if Constitution doesn’t speak to it, let democracy decide

  • Muller v. Oregon (1908) (Brewer)

    • sustained Oregon law providing maximum work hours for women

  • Coppage v. Kansas (1915) (Pitney)

    • held that law prohibiting employers from requiring that workers not join a union unconstitutionally violated the right of contract

    • inequality is natural and legitimate

  • Nebbia v. New York (1934) (Roberts)

    • upheld NY law setting prices for the sale of milk because it is not arbitrary and capricious and the industry in question “is subject to control for the public good”

  • Adkins v. Children’s Hospital (1923) (Sutherland): law prescribing minimum wage for women violated due process

  • West Coast Hotel Co. v. Parrish (1937) (Hughes)

    • upheld a state minimum wage law and overruled Adkins

  • United States v. Carolene Products (1938) (Stone)

    • rejected due process challenge to prohibition on shipment of “filled milk” and held that economic legislation need only have a rational basis (and need not necessarily be supported by any legislative facts)

    • Footnote 4: this does not mean judicial review plays no role

      • Bill of Rights (first ten amendments)

      • restrictions on political process

      • harm to discrete and insular minorities (relates it to the political process issue)

  • Williamson v. Lee Optical (1955) (Douglas)

    • upholds law requiring patients to go to ophthalmologist when want new glasses

    • there is no fundamental right involved and no suspect classification: they therefore only apply rational basis and make up their own rational basis

2. The Right of Personal Autonomy: Of Contraception, Abortion, Consensual Adult Sexuality, Death, Drugs, and Beyond

  • Background: Privacy as a Value in Law

    • J.S. Mill, On Liberty: recognized that the triumph of democracy meant that while majority’s rights were protected, minorities’ rights were not

      • Harm Principle must be met before state can violate autonomy:

        • background justice: can use government to achieve just ends like equality between the sexes and races

        • harm to others: otherwise, must be harm to others for law to be legitimate

        • harm to self: highly skeptical of this purpose

        • offense to dominant majorities is never enough

    • Privacy as a Value in Law

Insert Table: get table from Ellen or Jessica’s notes

  • Meyer v. Nebraska (1923) (McReynolds)

    • Court reversed conviction of teacher for teaching German

    • parents have a right to decide how their children will be educated

  • Pierce v. Society of Sisters (1925) (McReynolds)

    • invalidated law requiring parents to send their children to public schools: parents have an interest in choosing their children’s education

  • Skinner v. Oklahoma (1942) (Douglas)

    • invalidated compulsory sterilization on the basis of equal protection

  • Griswold v. Connecticut (1965) (Douglas, Goldberg, Harlan, White, Black’s dissent)

    • invalidated law preventing the use by or distribution to married couples of contraceptives

    • Douglas: the specific guarantees of the Bill of Rights have penumbras that create a zone of privacy

    • Goldberg: the traditions of our people suggest that the right of privacy in the marital relation is a fundamental right protected by the 9th amendment and cannot be infringed by states, particularly where law is overbroad as it is here

    • Harlan: says can simply enforce through 14th amendment using the Palko approach; preventing non-procreational sex is no longer a legitimate state purpose

  • Roe v. Wade (Blackmun) (1973)

    • Blackmun’s opinion: finds the right to abortion in the concept of liberty in the 14th amendment (substantive due process)

    • but, there are legitimate state purposes in safeguarding health, maintaining medical standards, and protecting potential life

    • he balances the interests at each stage and comes up with a trimester system:

      • cannot regulate first trimester, in second trimester can have health regulations, and in third trimester can prohibit entirely

Moral Arguments About Abortion

Status of Fetus

Rights of Mother v. Fetus

1. pre-fertilization

2. fertilization

3. quickening (Aquinas)

4. pain/pleasure receptors

5. brain activity

6. viability

7. birth

8. self-consciousness

1. self-defense

2. necessity: more harm is done by carrying the baby to term

3. euthanasia (birth defects)

4. Good Samaritan argument: imposes ethical obligation on women that men would never accept

  • Planned Parenthood v. Danforth (1976) (Blackmun) (Spousal Consent)

    • no spousal consent, and no absolute requirement of parental consent

  • Bellotti v. Baird (1976), Planned Parenthood v. Ashcroft (1983), H.L. v. Matheson (1981): Parental Consent

    • Bellotti, Ashcroft: requirement of parental consent with a judicial override mechanism is constitutional

    • Matheson: parental notice requirement constitutional

    • Court is now clearly willing to divide rights of child from rights of parents

  • Maher v. Roe (1977) (Powell)

    • regulation allowing Medicaid funding for prenatal care but not for voluntary abortions found constitutional

    • state has imposed no restriction on abortions that did not already exist

  • Harris v. McRae (1980) (Stewart)

    • even the barring of payments for medically necessary abortions was constitutional

  • Rust v. Sullivan (1991) (Rehnquist)

  • Akron v. Akron Center for Reproductive Health (1983)

    • doubts about trimester framework expressed by O’Connor in dissent: what was this case about??

  • Thornburgh v. American College (1986)

    • struck down several Penn. restrictions, but Burger expressed doubts about Roe in dissent

  • Planned Parenthood v. Casey (1992) (O’Connor, Kennedy, Souter)

    • right: reaffirmed the right to choose and ground it in the due process clause and the right to privacy

    • state interest: affirm the interests identified by Blackmun

    • explains the importance of abiding by stare decisis: unprincipled to give in to political pressure, they recognize the basic right, and reliance interests

    • but, creates undue burden test

      • upholds 24-hour waiting period (overrules Akron and Thornburgh)

      • no spousal consent

      • parental consent with judicial bypass reaffirmed

      • reporting requirements by doctors are ok

    • Stevens’ concurrence: does not recognize “potential life” as state purpose because it is entirely sectarian

    • Blackmun: issue is gender equality

  • Stenberg v. Carhart (2000) (Breyer)

    • law banning partial-birth abortions is invalid

    • must have a health exception

  • Family Relationships

    • Zablocki v. Redhail (1978) (Marshall)

      • struck down on fundamental right equal protection grounds law stating that any person owing child support cannot get married without court approval

    • Turner v. Safley (1987) (O’Connor)

      • struck down law restricting prisoners’ right to marry: marriage is a fundamental right

    • Moore v. East Cleveland (1977) (Powell plurality)

      • what is appropriate use of history in defining right to privacy?

      • Powell argued that the nation’s history and tradition supported the invalidation of a zoning ordinance that did not allow a grandmother to live with two different sets of grandchildren

    • Michael H. v. Gerald D. (1989) (Scalia)

      • upheld law establishing presumption that child of wife is child of the marriage even in the presence of biological evidence because it is the assumption about fatherhood we have had since 1789—takes very narrow view of the right

  • Sexuality

    • Bowers v. Hardwick (1986) (White)

      • upheld statute prohibiting all sodomy as applied to “homosexual sodomy”

      • defines right narrowly and then uses originalist argument to remove right to homosexual relationships from substantive due process

        • rejected claim that morality alone was not a sufficient state purpose

      • Powell now says he was wrong about Bowers because it was inconsistent with Roe/Griswold

    • Lawrence v. Texas (2003) (Kennedy)

      • invalidated state law prohibiting homosexual sodomy—majority on substantive due process grounds, O’Connor on equal protection grounds

      • history: claims that prohibition was on non-procreational sex not homosexuality

      • looks at comparative law because it supports notion that it is fundamental right and disputes the argument that this is part of Western tradition

      • could there ever be a compelling state purpose?: Plato would argue that it disrupts gender roles, could also bring up health risks, but there are other ways to address this

    • Goodridge v. Department of Public Health (Massachusetts Case): Lawrence means that marriage must be available to gays and lesbians

  • Death

    • Introduction: law tends not to criminalize suicide any longer, but criminalizes aiding and abetting

    • Cruzan v. Director, Missouri Department… (1990) (Rehnquist)

      • discontinuation of life-sustaining procedures was not required where Missouri court found that there was not clear and convincing evidence of patient’s desires (clear and convincing evidence was an acceptable standard)

      • had there been a living will, state’s interest would not have trumped her right to live and die with dignity—based on common law allowing to refuse medical treatment

    • Washington v. Glucksberg (1997) (Rehnquist)

      • Washington’s prohibition on assisted suicide is constitutional

      • there are compelling state interests: 1) interest in preserving life, 2) depression, 3) integrity of medical profession, 4) protection of the vulnerable, 5) slippery slope

      • O’Connor concurrence: application of the law where the only way to resolve pain is to give a drug that will induce death would be unconstitiutional

VIII. Equal Protection

1. Overview of Equal Protection (get table!)

  • History

    • the equal protection clause, unlike privileges and immunities, was completely new

    • Reconstruction Congress wanted to extend protection of enumerated and unenumerated rights to the states

    • Abolitionists

      • Lincoln and moderate abolitionists: believed must emancipate the slaves and then colonize them in Africa

      • radical abolitionists: demanded equal protection—those who have borne all the burdens of citizenship, should get all protections of citizenship

  • Standards of Review

    • if state abridges fundamental right or uses a suspect class, it is highly likely to be struck down; in other cases, use rational basis analysis

    • court has also been developing intermediate status

  • Over and Underinclusiveness (Tussman and tenBroek)

    • every law has a mischief it is aimed at (M), and a trait that is the basis for the classification used by the law (T): whether a law is reasonable under equal protection depends on relationship of the M to the T

    • the strict test does not allow over or underinclusiveness

2. Standards of Review: The Weak or Rational Basis Test

  • Railway Express Agency v. New York (1949) (Douglas, Jackson’s concurrence)

    • upholds law allowing the prohibition of advertising on some trucks but not others

    • court infers purpose

    • Jackson concurrence:

      • equal protection is better than substantive due process because it does not involve Lochnerizing

      • he thinks underinclusiveness is worse because if everyone has to bear the same burden, the majority is unlikely to allow it

  • Williamson v. Lee Optical (see above)

  • U.S. Department of Agriculture v. Moreno (1973) (Brennan)

    • invalidated federal food stamp definition defining household as related persons; says it is applying rationality review, but applies it with more bite because it is approaching a fundamental right

    • also: bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest

  • Jimenez v. Weinberger (1974)

    • struck down law denying disability benefits to some but not all illegitimate children

    • seems to apply more heightened scrutiny because bordering on a suspect class

  • Massachusetts v. Murgia (1976)

    • applied rational basis analysis to a retirement age requirement for police officers and upheld the statute

  • Vance v. Bradley (1979) (White)

    • again, age is not a suspect classification

  • NYC v. Beazer (1979) (Stevens)

    • upheld regulation excluding all methadone users from transit authority employment

  • U.S. Railroad Retirement Board v. Fritz (1980) (Rehnquist)

    • upheld restructuring of statute to prevent windfall benefits to railroad workers that drew a line between those who would continue to receive them and those who would not

    • Rehnquist: identified hypothetical rational basis and says that is sufficient

    • Stevens: must identify a legitimate purpose that we can reasonable assume an impartial legislature would have adopted

    • Brennan: must look at actual purpose

  • Logan v. Zimmerman (1982) (Blackmun)

    • would have invalidated procedural classification of complainants on equal protection grounds

  • Allegheny v. Webster County (1989) (Rehnquist)

add other cases from notes???
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