Professor Goldstein
148. Constitutional Law I
Spring 2016
III.
FUNDAMENTAL RIGHTS: A ZONE OF INDIVIDUAL AUTONOMY
ASSIGNMENT:
A.
Nineteenth Century
-Pre Civil War:
Barron v. Baltimore (1833) 425-27
- Marshall: BoR only restricts natl govt, not the states
o Baron, you have this A5 right, but it is only against FedG, not StG
-The Privileges & Immunities Clause of 14th Amendment:
433-37
*Slaughterhouse Cases (1873)
- Narrow reading of 14th Amendment
o Civil War Amendments (13-15) had not been meant to expand radically the power
of SC to regulate relationship of states to their own citizens
A13: No slavery or involuntary servitude
A14: All persons born/naturalized in US are citizens, overruled Dred Scott
A15: Right to vote cant be denied due to race/color/previous servitude
- With regard to the Privileges and Immunities claim, the Supreme Court also reasoned,
through Justice Samuel Miller (J. Miller), as follows:
o A14 was not intended to safeguard Plaintiffs against the types of injuries for which
they seek relief. (bottom of 435)
o A14 textually distinguishes between citizens of US and citizens of the States.
o Plaintiffs seek relief as a citizen of a State against the actions of a State.
o But, the section of the Fourteenth Amendment Plaintiffs rely upon safeguards only
rights (i.e., Privileges and Immunities) of citizens of the United States against the
actions of the States.
There are Fed-given rights and State-given rights (Privileges and
Immunities)
State given rights: life, liberty, property
Plaintiffs wanted ownership of their own labor, cited P and I
o States can define P and I within their own state
So this is not a federal claim, does not belong in
federal court
Baron said that there were two sets of rights: Fed-given and state-given
Bottom line: the A14 and the Civil War did not really change the balance of
federalism. States, not Fed, still protect life, liberty, property
What is protected by Fed has not been enlarged
o Habeas corpus writ, for example
o Bill of Rights are rights against US only
Free speech is against Fed, not states
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Professor Goldstein
148. Constitutional Law I
Spring 2016
Fed does not want to be perpetual censor of state law to make sure
that they protect life, liberty, property this was not intended by
Framers
o This gutted P&I clause
B.
Applying Bill of Rights to the States Via the Due Process Cl: Incorporation
Unenumerated Rights:
Substantive due process: rights judges can identify even if they are not written down
-
Black and Scalia: this sucks! Text is awesome!
*Palko v. Connecticut (1937)
446-54
Cardozo: selective incorporation
o Double-jeopardy prohibition provision in A5 is not applied to States via A14
No such general rule for this sort of application
Courts applied BoR guarantees to States sometimes
*Adamson v. California (1947) -- followed Palko precedent, did not apply selfincrimination privilege to states
Enumerated Rights
*Duncan v. Louisiana (1968) asked whether provision is essential to
fundamental fairness, supersedes Palko
*McDonald v City of Chicago (2010) (1st 2 paragraphs)
457
-
Review
o Selective Incorporation: the text of the BoR is incorporation into the word liberty
of the DP Cl. and then the DP Cl. is applied to the States
While under Palko-Adamson, the court looked at facts of a case and asked
whether challenged state action violated fundamental fairness
requirement implicit in due process
Later (Duncan, McDonald), Court ascertained the relevant BoR provision
and asked whether that provision is essential to fundamental fairness such
that it should be more applicable to the states
o Our original Con did not have BoR, was concerned with structure (separation of
powers, three branches of govt, federalism states v. fed), not human rights
o Tension between commitment to textual Con, what Marshall and Marbury called
biggest advancement in the Am. Con. itself
But what about Unenumerated rights, that have not been written down
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Professor Goldstein
148. Constitutional Law I
Spring 2016
Tradition of Unenumerated rights enforced by Common Law courts
(all the way back to Magna Carta, Dec. of Ind.), has some tension
with idea of textual understanding of Con
o See Slide 19
o Who are you to say that some rights are so rooted in the
traditions and conscience of our people
Review
Majority in these cases: developing liberties that people naturally have, taken from reason and
tradition, not taken from the text of the Con
- Incorporation is referring to things that are enumerated in BoR, then A14 is the conduit by
which they are applied to the states
o Most rights that have been incorporated are procedural rights
- Substantive due process: rights like contraceptive rights, abortion but also bearing
arms, free speech rights that are not procedural
o But line between substantive and procedural is blurry
o The real distinction is between enumerated and unenumerated rights
Incorporation
- Liberty encapsulates rights in the BoR, incorporates those rights into A14, so state
cannot infringe on those things
- Later, liberty also includes natural law, tradition
There are fundamental rights and rights not fundamental to liberty
- Rights like abortion have been found not to be fundamental
o In these cases, legislation may have thought that social concerns outweigh liberty
interests
- What does it mean to be fundamental?
o References to tradition and reason
ASSIGNMENT:
C.
Protecting Economic Interests: Substantive Due Process
1. Protecting Autonomy by protecting Liberty of Contract (1900-1937)
a. *Lochner v. NY (1905)
467-69; 471-80
Lochner Test: S3
- Heightened scrutiny for liberty of K
o Court: Arent there more direct and more narrowly tailored means than working
hours to achieve health?
- Dissent (Harlan): rational means-ends test
o Lower standard than heightened scrutiny, reverse only if means are plainly horrible
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Professor Goldstein
148. Constitutional Law I
Spring 2016
Consider expert testimony
Holmes dissent: Ends Analysis
o As long as legislative has some ends, then it is not the place of the courts to
supersede their judgment
But he also says Con is made for people of fundamentally differing views
Is majority rule & accommodation of differing views consistent?
*Adkins v. Childrens Hospital (1923) (omitted )
Mylaw
b. The Demise of Lochner
*West Coast Hotel Co. v. Parrish (1937)
483 (n.2) 88 (1st cont.)
S11: New standard of review: rational means to a public purpose (deferential review)
c. Modern Deference (or abdication?):
*U.S. v. Carolene Products Co. (1942) footnote 4
*Williamson v. Lee Optical (1955)
S13: Now minimum rationality review
- Two ways to challenge legislature: equal protection and due process
o We can either focus on how law treats both groups (comparatively restrictive)
(Equal Protection), or focus on how law treats one group (individually restrictive)
(Due Process)
Here, (THIS IS HOMEWORK)
- This review only comes into play when the right is not fundamental
2. Omitted: 5thA. Takings cl; Contracts Clause; no money but gold/silver Art I, 10 1, Art. 6
1; expropriation 13th, & 14th4 A.; redistribution 16th A.; dormant commerce cl.
ASSIGNMENT:
D . Modern Substantive Due Process: Family, Privacy, Autonomy, & Intimate Association
1.
The Right to Establish a Home and Raise a Family:
Private Schools and the Lochner Era
492-502
*Meyer v. Nebraska (1923) & Meyer paragraph (not in Text)
Mylaw
*Pierce v. Society of Sisters (1925)
2.
Procreation and Forced Sterilization
*Buck v. Bell (1927) & *Skinner v. Oklahoma (1942)
3. The Right Not to Procreate:
a. Contraceptives
*Griswold v. Conn. (1965)
*Eisenstadt v. Baird (1972)
*Carey v. Population Services (1977)
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Professor Goldstein
148. Constitutional Law I
Spring 2016
The Declarations Pursuit of Happiness; Constitution Preambles
Blessings of Liberty &,Amendments 9 & 14 ; iIs there a 13 th A. right of
self possession or right against the forced labor of childbirth?
ASSIGNMENT:
b..
Abortion
i. Burger Court: *Roe v. Wade (1973) & Doe v Bolton (1973)
ii. Rehnquist Ct.*Planned Parenthood v. Casey (1992)
iii. Roberts Ct. *Gonzales v. Carhart (2007)
503-09
515-24
526-28
ASSIGNMENT:
4.
Marriage & Family: The Right to Family or Intimate Association
*Loving v. Virginia (1967)
*Zablocki v. Redhail (1978)
*Turner v. Safley (1987)
*Moore v.. East Cleveland (1977) (compare Belle Terre)
Troxel v. Granville (2000)
*Michael H v. Gerald D. (1989)
5.
529-35
Right to Die: Autonomous Choice or to Avoid Needless Suffering?
*Cruzan v. Missouri (1990)
550-61
* Washington v. Glucksburg (1997) & *Vacco v. Quill (1997)
Question: What is the constitutional scope of self-rule?
Ronald Reagans First Inaugural states:
In this present crisis, government is not the solution to our problem;
government is the problem. From time to time we've been tempted to
believe that society has become too complex to be managed by selfrule, that government by an elite group is superior to government for,
by, and of the people. Well, if no one among us is capable of
governing himself, then who among us has the capacity to govern
someone else?
ASSIGNMENT
6.
Gay and Lesbian Relationships
a. Criminalizing non (potentially) procreative sexual acts
*Bowers v. Hardwick (1986)
536-46
*Lawrence v. Texas (2003)
Questions: Is Lawrence a simple application of Griswold to a form of
non artificial family planning? Or does it depend on a right of intimate
association, or on Caseys right of self definition/identity regardless of
an intimate association?
b. Right to Marry: Obergefell v Hodges (2015)
Supp
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Professor Goldstein
148. Constitutional Law I
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Spring 2016