Ch. 7 the bill of rights and the post-civil war amendments: fundamental rights and the incorporation dispute p.348
Introductory by professor
- Justiciability : (i) separation of power, (ii) not want to grandize judicial power, (iii) not want to usurp the power of other branch,
- “Congress shall have the power … legislation …” under 13th, 14th, 15th, give Congress power like art.1.sec.8
Definition
- The Bill of Rights is the name for the first ten (10) amendments
- The Reconstruction Amendments are the Thirteenth, (13th) Fourteenth, (14th) and Fifteenth (15th) amendments, the five years immediately following the Civil War ; "Civil War Amendments" or the "Three Reconstruction Era Amendments"
Historical context
- the Bill of Rights was a political compromise … to enlist support from Anti-Federalist who did not trust the enumeration of powers in the constitution ; to add an external check to supplement the internal restraint – enumerated powers of federal government ; nothing in the first eight Amendments expressly constrained the states (DO- Bill of Rights - restraint on federal power)
- The Reconstruction Amendments (for the first time) added new express restraints upon the states, particularly, the Fourteenth Amendment ; the process of “incorporating” Bill of Rights guarantees into the Fourteenth Amendment (DO- Fourteenth Amendment - restraint on state power)
- it was the Fourteenth Amendment’s Due Process Clause, rather than the Privileges and Immunities Clauses, that became the major vehicle for that nationalization of individual rights
Sec. 1. Individual rights before the civil war p.349
Barron v. Balt., 1833, p.349
Held
- the provision in the fifth amendment, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the U.S., not applicable to the legislation of the states ;
- the 5th, 6th, and 8th amendments apply only to the federal government, and not to that of the states – (Prof. slavery under 13th Amend. is not violation of individual rights)
Reasoning
- The constitution was established by the people of the United States for their own government, and not for the government of individual states ; Each state established a constitution, and provided such limitations and restrictions on the powers of its particular government
- (i) textual, structural – art.1.sec.9 enumerated the limitations imposed on the powers of general government ; art.1.sec.10 limitations on state legislature ; the sec.9 and 10 shows that constitution draws marked line of discrimination between the limitations on general government and states
o Prof. you can argue both ways ; the absence of explicit reference to “state” doe not necessarily exclude state in its application
- (ii) historical – amendment was to guard against the abuse of power by general government, not by local government
Slaughter-House Cases, 1872, p.351
Fact
- A challenge by would-be competitors to a state-conferred monopoly ; a LA law of 1869 chartered a corporation and granted to it a 25-year right to maintain slaughterhouses ; all competing facilities were required to close ; the corporation permitted independent butchers to slaughter cattle ; butchers not included in the monopoly (i) claimed the monopoly law deprived them of their right “to exercise their trade”, (ii) challenged it under the Fourteenth Amendment (DO- no explicit right to exercise their trade)
Held
(1) The fourteenth amendment
- “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
- Held - There is a difference between [ the privilege and immunities belonging to a citizen of ] the United States as such, and [ those belonging to the citizen of ] the State as such, ; the fourteenth amendment does not embrace the latter ; the latter rest for their security and protection
- (Plaintiff) : the LA law violated the privileges and immunities of the P of the U.S.
- (The Court) : the fourteenth amendment is not intended as a protection to the citizen of a State against the legislative power of his own State ; the LA law regulates the privileges and immunities of P of LA, rather than of the U.S
(2) Article IV, sec, 2
- “the citizens of each State shall be entitled to all the privileges and immunities of citizens of several States”
- Those privileges and immunities which are fundamental ; e.g. to pursue and obtain happiness and safety
- (3) “ (with the exception of these and a few other restrictions,) the entire domain of the privileges and immunities of citizens of the States lay within the constitutional and legislative power of the States” ; The regulation of slaughtering, business of butchering, and the inspection of the animals to be killed for meat are among the most necessary and frequent exercises of the police power ; No direct general power over these objects is granted to Congress; and consequently they remain subject to state legislation
- (4) chose not to define the privileges and immunities of citizens of the United States ; but e.g. the right to use navigable waters of the United States
Prof.
- Privilege and Immunity of … U.S. : the distinction is conceptually OK, but has two problems – (i) privileges and immunities of … U.S. is interpreted quite narrowly, (ii) supremacy clause
Saenz v. Roe, 1999, p.357
- A challenge to a state law that distinguished among state residents in the distribution of welfare benefits according to the duration of their residence within the state
- “right to travel” embraces three different components ; (i) the right of a citizen of one State to enter and to leave another State, (ii) the right to be treated as a welcome visitor when temporarily present in the second State, (iii) those who become permanent residents, the right to be treated like other citizens of that state ;
- here, the third aspect of the right to travel – the right of the newly arrived citizen to the same privilege and immunities enjoyed by other citizens of the same State
- Holding : “the Privilege and Immunity Clause of the Fourteenth Amendment protects the third component of the right to travel”
- The state law at issue discriminates against some of its citizens because they have been domiciled in the State for less than a year (the Court characterize the law as “discriminate”)
- Once a citizen of CA, the need for welfare benefits is unrelated to the length of time that they have resided in CA
- Fiscal justification – legitimate purpose of saving state budget – cannot be accomplished by discriminatory means
Dissent
- If State can require individual to reside in-state for a year before exercising the right to education al benefits, and the right to terminate a marriage, then States may surely do the same for welfare benefits
Note
- In any event, freedom to travel throughout the U.S. has long been recognized as a basic right under the Constitution
Shapiro v. Thompson, 1969, p.360 < (the right to travel) the Equal Protection Clause>
- Viewing the right to travel as “fundamental,” and applying strict scrutiny, the Court struck down a number of durational residency requirements that were preconditions for receiving state benefits, including one similar to the one struck down in Saenz,
Saenz, Shapiro, and Slaughter-House p.361
- Saenz achieves a result similar to that in Shapiro ;
- Saenz adopts new and different reasoning rooted in the structural postulates of federalism ; analysis under the Privileges and Immunities Clauses ; federalism ;
- Shapiro – equal protection/fundamental rights methodology ; individual liberty
Sec. incorporation of the Bill of Rights through the due process clause p.363
Barron v. City of Baltimore, 1833, p.349
- The 5th, 6th, and 8th amendments apply only to the federal government, and not to that of the states
Twining v. State of N.J., 211 U.S. 78, 1908, p.364,
- Protection against self-in-crimination, though secured as against federal action by the fifth Amend, is not one of the fundamental rights of national citizenship, so as to be included among the privileges and immunities of citizens of the United States which the states are forbidden by the fourteenth amendment to abridge
- But See “it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law (DO- due process under 14th Amendment)”
Palko v. State of Connecticut, 302 U.S. 319, 1937, p.364
- The Fifth Amendment is not directed to the States, but solely to the federal government
- An act of a state does not necessarily violate the Fourteenth Amendment because a similar act of the federal government would violate the original Bill of Rights (= rejected the argument that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also)
o Noted that the Court had applied to the states some Bill of Rights guarantees (e.g. free speech and right to counsel) but not others (e.g. grand jury indictment, and the protection against self-incrimination)
o The difference between the two is that the latter is “not of the very essence of a scheme of ordered liberty” or “fundamental fairness”
- A state, by denying freedom of thought and speech, denies “due process of law” under the fourteenth Amend
Adamson v. People of State of California, 332 U.S. 46, 1947, p.364
- Protection against self-incrimination under the Fifth is not made effective by Fourteenth Amendment as a protection against state action (because (i) freedom from testimonial compulsion is a right of national citizenship or (ii) it is a personal privilege or immunity secured by Federal Constitution as one of the rights of man that are listed in Bill of Rights)
- A right to a fair trial is protected by due process clause of Fourteenth Amendment
- The due process clause of the Fourteenth Amendment does not draw all of federal Bill of Rights under its protection
- The privilege against self-incrimination is not part of right to fair trial protected by due process clause of Fourteenth Amendment
- (in response to the dissent) total incorporation of the Bill of Rights into the Fourteenth would unduly limit state autonomy in the enforcement of criminal law
Black, dissenting
- Due process under the Fourteenth requires total incorporation of the Bill of Rights
- Original purpose of the Fourteenth is to extend to all the people of the nation the complete protection of the Bill of Rights
- The “essence of a scheme of ordered liberty” or “fundamental fairness” approach was too vague and open-ended ; total incorporation approach would curb excessive judicial discretion
Transition (shift)
- Beginning in the early 1960s, “total incorporation” approach prevailed, without formally abandoning the “fundamental fairness” standard ; the Court found applicable to the states virtually all of criminal procedure guarantees of the Bill of Rights ** **
- Palko-Adamson : whether the challenged state action violated the “fundamental fairness” requirement in due process
- The Court’s later approach : whether the relevant Bill of Rights provision is essential to “fundamental fairness” implicit in due process under the Fourteenth
Duncan v. Louisiana, 391 U.S. 145, 1968, p.367
- Defendant was charged with simple battery, punishable by a maximum of two years imprisonment. D sought trial by jury, but because the LA Constitution grants jury trials only in cases in which capital punishment … may be imposed, the trial court denied the request
Held
- that a crime punishable by two years in prison was a serious crime, Consequently, D was entitled to a jury trial and the trial court erred in denying it.
- that the right to trial by jury (guaranteed defendants in criminal cases in federal courts by the U.S. Const. art. III and by the Sixth Amendment) was also guaranteed by the Fourteenth Amendment to defendants tried in state courts
reasoning
- Bill of Rights is looked to for guidance in resolving conflicting claims concerning meaning of quoted language in Fourteenth Amendment denying the states the power to “deprive any person of life, liberty, or property, without due process of law.” ( DO- paraphrase “whether the relevant Bill of Rights provision is essential to “fundamental fairness” implicit in due process under the Fourteenth” in transition, and cite Duncan )
- The due process clause of Fourteenth Amendment protects (i) right to compensation for property taken by state (DO- Fourteenth) ; (ii) rights of speech, press, and religion covered by First Amendment ; (iii) Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; (iv) right guaranteed by Fifth Amendment to be free of compelled self-incrimination; and (v) Sixth Amendment rights to counsel, to speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses
- In determining whether right extended by Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by Fourteenth Amendment, question is asked whether right is among those fundamental principles of liberty and justice which lie at base of all our civil and political institutions, whether it is basic in our system of jurisprudence, and whether it is fundamental right, essential to fair trial
- Because trial by jury in criminal cases is fundamental to American scheme of justice, Fourteenth Amendment guarantees right of jury trial in all criminal cases which, were they to be tried in federal court, would come within Sixth Amendment's guarantee.
Note p.369
Incorporation since Duncan
- All of the criminal process guarantees of the Bill of Rights have now been held applicable to the state, with the exception of the grand jury indictment provision of the Fifth Amend. and, arguably, the excessive bail provision of the Eighth Amend.
- Outside the criminal area, as a matter of due process, the freedom from establishment of religion and tights to free exercise of religion, speech, press, assembly, and petition for redress of grievance protected by the First Amend. and the right against uncompensated takings protected by the Fifth
Note 4 – incorporation and the right to keep and bear arms
District of Columbia v. Heller, 554 U.S. 570, 2008, p.371
- For the first time, the Court enforced the Second Amend. expressly as a matter of individual right (Do- as against state? )
- invalidated a D.C. law that effectively banned the possession of handguns
- because D.C. is governed by the federal government, the Court did not need to reach the question whether the Second Amend. is incorporated under due process so as to apply to state or city gun ordinance
- (Scalia’s majority) by reviewing the linguistic and historical meaning of the right to keep and bear arms, it confers individual rather than collective rights, and is unconnected to militia service ; (i) First, Fourth, Ninth, “the people”, (ii) arms = weapon, (iii) bear = carry, (iv) not by banning the militia, but simply by taking away the people’s arms,
Stevens, Dissent
- A conclusion that the Second Amend. protects an individual right does not tell us anything about the scope of that right
- Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms ; specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution
Breyer dissent
- The Second does not protect an interest in individual self-defense,
- The D.C. ordinance represents a permissible legislative response to a serious, indeed life-threatening, problem
- No evidence that the Framers of the Second viewed handguns in particular as central to the Second
Ch.8 due process p.375
- the 5th and 14th of Amendment ; concerning economic liberty and personal privacy ; the substantive as well as the procedure ; stemming from (i) history, (ii) structure of the Constitution, (iii) evolving social consensus
Calder v. Bull, 3 U.S. 386, 1798
Justice Chase
- This fundamental principle ; that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit (the Justice seems to mean natural law by “law”)
- An Act of the Legislation (for I cannot call it law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority
-
- The Justice did not strike the CT statute coz it was consistent with “natural justice”
Justice Iredell
- I cannot think that, under a constitutional scheme allocating powers without explicit limitations, any Court of Justice would possess a power to declare it so ;
- If, … the Legislature … shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice
Munn v. Ill., 94 U.S. 113, 1877 p.378
- The Court rejected an attack on a state law regulating the rates of grain elevators, but in so doing, the majority opinion hinted at judicial control in the future
- in mere private contracts, relating to matters in which the public has no interest, the legislature has no control over such a contract, , if there are no statutory regulations upon the subject, the courts must determine what is reasonable
Railroad Com. Cases, 116 U.S. 307,
- while upholding state regulation of railroad rates, but leaving the door open for greater judicial control in the future, “it is not to be inferred that this power of regulation is without limit”
Santa Clara County v. Southern P. R. Co., 118 U.S. 394
- corporations were “persons” within the meaning of the 14th Amend
Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418, 1890
- invalidate a state law authorizing administrative ratemaking without providing for judicial review (railroad company can’t challenge the administrative rate-making in court)
- apparently strike down it for lack of adequate procedural protection ; but the Court concern with substance as well, by mentioning “reasonable rate”
< substantive due process review soon ranged beyond rate regulation to a wide range of state police power>
Allgeyer v. Louisiana, 165 U.S. 578, 1897
- invalidated a state law (LA) that prohibited obtaining insurance on LA property from any marine insurance company which has not complied with LA law (discrimination against foreign insurance company)
- focused (limitation) on state power over foreign corporations ; liberty of contract advanced the development of substantive due process ;
- “ The liberty mentioned in that amendment (14th) means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned “
< when state exercise police power, e.g. regulation of labor or employment, (i) commerce power, (ii) dormant clause, (iii) the liberty of the individual under the 14th >
Lochner v. New York, 198 U.S. 45, 1905
- Invalidates NY labor law that prohibited the employment of bakery employees for more than 10 hours a day or 60 hours a week,, as an arbitrary interference with the freedom (of citizen) (liberty under the 14th) to contract guaranteed by 14th,, not a valid exercise of the police power (by state) to protect the public health, safety, morals, or general welfare
Question
- <liberty of the individual protected by the 14th, e.g. a right to make a contract in relation to his biz v. a valid exercise of the police powers of the state, e.g. safety, health, morals, and general welfare of the public >
Reasoning
- The challenged NY statute is an absolute prohibition upon the employer permitting more than ten hours’ work to be done in his establishment ; the NY statute necessarily interferes with the right of contract
o If a state statute is in the legitimate exercise of its police power, not prevented by the 14th ;
o is not to substitute the judgment of the court for that of the legislature, coz the court not intervene once within the power of the state
-
- <pater familias> “The State in that case would assume the position of a supervisor, or pater familias, over every act of the individual, and its right of governmental interference with his hours of labor, his hours of exercise, the character thereof, and the extent to which it shall be carried would be recognized and upheld”
o ** , when state legislature is too micro-manage, intervene too much, mention pater familias ,
o Justice Peckham – “a labor law, pure and simple” he condemned such legislative ends as impermissibly paternalistic or redistributive
Harlan, dissenting
- In Patterson v. Kentucky, 97 U.S. 501, … the general principle that rights given by the Constitution cannot be impaired by state legislation of any kind, … nevertheless, … the necessity, … of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each State owes to her citizen."
- when the validity of a statute is questioned, the burden of proof is upon those who assert it to be unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 421
- Under our systems of government the courts are not concerned with the wisdom or policy of legislation. So that in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health
o DO- when reviewing state statute, <(majority)> balancing the right of individual v. the right of state ; <(dissent)> rational basis, i.e., whether the means has a substantial relation to the end è. (DO) rational basis review , See Nebbia ,
4., extention of Lochner, p.386
- From the Lochner in 1905 to the mid-1930s, the Court invalidated about 200 (state) regulations on substantive due process grounds , e.g. regulations of prices, wages and hours
- E.g. Invalidating federal law on due process (5th) ground
- Yellow dog contract ; restraint on biz entry ; employment of female
Nebbia v. New York, 291 U.S. 502,
- Upheld NY statute - a Milk Control Law - establishing a Milk Control Board with the power to fix minimum and maximum retail prices charged by stores to consumers for milk
-
-
o DO- seems to abandon balancing test – the right of individual v. the right of state - ; instead, adopted rational basis review , like dissent in Lochner ,
-
- <judicial deference to the means-ends relationship> here, e.g., milk is an essential item of diet, production of milk is a paramount industry of the state …
o Retreat from Lochner ; reduced judicial role, e.g. deference to the means-ends relationship
Dissent
- Denied (doubted) the means-ends relationship
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 1937,
- Upheld a state minimum wage law for women
-
- The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case
Justice Stone’s Footnote 4
- The Court applied rational basis review here, but proposed a new level of review for certain other types of cases - this higher level of scrutiny, now called "strict scrutiny"
- E..g . (i) On its face violates a provision of the Constitution (facial challenge) , (ii) Attempts to distort or rig the political process , (iii) Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process
Lee Optical of OK., 348 U.S. 483,
- (extremely deferential judicial stance both to the legislature’s selection of ends and its choice of means to those ends)
- Challenged OK statute which forbids an optician from fitting or duplicating lenses without a prescription from an optometrist
-
-
- “ … the law need not be in every respect logically consistent with its aims … It is enough that there is an evil at hand for correction, and that … the particular legislative measure was a rational way to correct it “
- “ The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought “
Ferguson v. Skrupa, 372 U.S. 726, 1963 p.394
- Abandoned “the use of the "vague contours" 9 of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise”
- there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us
Philip Morris USA v. Williams, 549 U.S. 346, 2007, p.396
- In our view, the Due Process of 14th forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties
Sec.2 textual guarantees of economic liberties : the taking clause and the contracts clause p.398
- Why rely on Due Process Clause for economic liberties ?
-
o Extended to states as incorporated into the 14th,
-
o No similar limitation on federal government
The taking clause
- (i) “public use” clause of the 5th, is it substantive limitation ?
- (ii) the compensation requirement extend to any government actions beyond formal takings ? e.g. “regulatory takings” (a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government's eminent domain power without actually divesting the property's owner of title to the property)
- Like rational basis review of (state) economic regulation,, the Court, same deference toward legislative determination of “public use”
- Berman v. Parker, 348 U.S. 26, 91954) – D.C. law authorized the taking of private property for the purpose of redeveloping blighted urban areas ; after condemnation, the government could sell or lease that property to private developers ;
o Held : the role of the judiciary in determining whether the eminent domain power is being exercised for a public purpose is an extremely narrow one “
- Hawaii, 457 US 229, (p.399)
o Held – “Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Pubic use Clause (of the 5th) “
o “when the legislature’s purpose is legitimate and its means are not irrational, our case make clear that empirical debates over the wisdom of takings are not to be carried out in the federal court “
Kelo v. City of New London, 545 U.S. 469, 2005, p.401
- the city of New London approved a development plan that … the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation.
- The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth
Held
- the development plan constituted a “public use” under the Takings Clause of the 5th ,
Reasoning
- On the one hand, the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation ; On the other hand, a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking, e.g. the condemnation of land for a railroad with common-carrier duties
- The plan was not adopted to benefit a particular class of identifiable individuals ;
- City's exercise of eminent domain power in furtherance of economic development plan satisfied constitutional “public use” requirement, even though city was not planning to open condemned land to use by general public, where plan served public purpose
- the necessity and wisdom of using ‘eminent domain (power)’ to promote economic development are certainly matters of legitimate public debate (rather than matter of adjudication)
-
Kennedy, J., concurring,
- (1) a court applying rational-basis review under the Fifth's public use clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits; (2) …
O'Connor, J., dissenting,
- (1) as a result of the Majority, under the banner of economic development, all private property was vulnerable to being taken and transferred to another private owner, so long as … in a way that the legislature deemed more beneficial to the public ; (2) the reasoning -- the incidental public benefits resulting from the subsequent ordinary use of private property rendered economic-development takings "for public use" -- (a) washed out any distinction between private and public use of property, and (b) thereby effectively deleted the words "for public use" from the Fifth Amendment
Note p.406
- O’Connor – in Midkiff, upholding the Hawaii land reform ; here, in Kelo, dissent
- Private railroads, e.g., have historically been beneficiaries of takings in eminent domain
- In the wake of Kelo, nearly half of the states have adopted statutory or constitutional restrictions on the use of eminent domain to transfer land to private developers
