Fundamental Rights - Constitutional Law: Fourteenth Amendment, Separation of Powers

I: Fundamental Rights: Early Applications

Tangent:

Barnette (1943) after Gobitis (1940): Reversing on Pledge of Allegiance for Jehovah’s Witnesses.

• Free religion vs. free speech (Barnette)

• Supreme court as bad teacher…

Slaughterhouse (1873): First time construing 14A.

• Statute: Monopoly of slaughterhouse under state law.

• Plaintiff claims P&I, EP, DP, 13A… b/c Denied labor in chosen field.

• Miller: Purpose of Reconstruction Amendments is Race.

  • Efforts to use P&I unavailing – meant to overrule Dred Scott. Nothing more

  • State issue here, not federal.

  • Reconstruction Amendments not reorder state vs. federal power

• (Court being gun shy after Dred Scott?)

• End of P&I strength.

  • Could have done the work of incorporation better than DP?

Incorporation

• Barron v. Baltimore: (1833) Bill of Rights to Federal government only

• Palko Cardozo: Scheme of ordered liberty, fundamental rights…

• Black v. FFF: Adamson

  • Black: Total incorporation, no judicial discretion.

  • FFF: Selective incorporation: Canons of decency/fairness

• TODAY: All but jury usage have been incorporated.

  • Plus 3A Quartering and 8A Excessive Fines

McDonald v. Chicago (2010): 2A Incorporation

• Alito and Stevens debate on substantive DP.

  • Alito: All about 2A and Heller a fundamental right. Did Heller incorporate?

  • Stevens dissents: This is about substantive DP; is this a fundamental right?

    • (Relitigating merits of Heller without stating so)

• Thomas concurs: supports overturning Slaughterhouse and Cruikshank. Should apply through P&I clause of 14A.

• Scalia concurs: Substantive DP, but do it in historical way. Stevens is making it up as he goes along. Originalism: the lesser evil.

Lochner (1905): state law limiting hours for bakers struck down 5-4.

• Peckham: Liberty of contract.

  • Police Power: health of public, morals, etc.

  • Holden v. Hardy (1898): Mining safety laws OK. But baking is safer.

  • Not need paternalistic laws; labor regulation masquerading as health regulation.

  • (Anti-immigration sentiment? Discriminating against small bakeries? Price goes up – bad for consumers?)

• Harlan: Quotes all kinds of stats, not from briefs.

• Holmes: Lots of things legislatures can do.

  • Reasonable minds can differ; court shouldn’t jump to conclusions.

• [Compare with Carter Coal]

• Why is it in the anti-canon? Maybe not as bad as Korematsu or Dred Scott?

  • Stand in for the early new deal laws being struck down.

    • But court more active today

  • Insufficiently connected to the text of Constitution?

    • But there are lots of unenumerated rights – Griswold

  • “False equality”

    • But unequal bargaining power?

  • Mis-prioritazation of rights

    • Very narrow perception of state’s role in protecting citizens

  • Hatred a relic of a bygone era?

Lochner Era

• Note: Not invalidate all laws. (E.g. Holden)

  • Labor regulations for women/children much more likely to be upheld.

• Muller v. Oregon (1908): Regulation of hours for women ok.

  • Brandeis Brief: scientific data on implications for childbirth

• Adkins v. Children’s Hospital (1923): No minimum wage for women.

  • PROF: Why maximum hours but not minimum wage?

West Coast Hotel v. Parrish (1937)

• No freedom of contract; end of Lochner era

  • Unequal bargaining power; more realistic account of relationship

• Overturns Adkins.

• New moment in time – people and legislatures change.

Lee Optical (1955): Douglas goes out of his way to use DP.

• Rational Basis

End of Economic substantive due process.

II: Fundamental Rights: Fundamental Rights Equal Protection

Skinner v. Oklahoma (1942): Prefer EP > DP

• Douglas

• Statute: 3 felonies of moral turpitude -> Sterilization

• (8A not yet incorporated until 1962)

• Not want to use DP, so uses EP: treats different kinds of criminals differently.

• ** Test for fundamental rights under EP: Strict Scrutiny.

  • What is the suspect classification? Class?

• Stone concurs: Does DP analysis. Wants more process to interfere with such a basic right.

  • Due Process, not substantive.

• [Today: Could be DP not EP – see Griswold and Roe)

Harper v. Virginia Board of Elections (1966): 6-3 invalidates poll tax in state elections

• 24A forbids in federal elections

• Douglas: Strict Scrutiny applies, cites Skinner

  • “No relation to wealth” – sounds like Rational Basis?

• ** Living Constitutionalism: NOT original meaning of 14A, since they DID have poll taxes back the!

• Not constrained to historical notions (compare Plessy -> Brown)

• Lassiter: literacy test under rational basis OK.

• Black & Harlan both dissent: Have long applied rational basis.

  • Black: Stare decisis. New meanings come from amendments, not living constitutionalism.

• Holdout/holdover

  • Could court have let this be? Was on its way out anyway?

• [Strong originalist argument that could be made here]

Voting as a fundamental right

• Bush v. Gore (2000): The opposite Cooper v. Aaron; no justice wants to sign his/her name. 5-4 per curiam.

  • Glaringly worrisome sentence: “our consideraiotn limited to present circumstances because many complexities.”

  • Language of the opinion to sweeping otherwise – would force uniformity of voting procedures everywhere, which isn’t the case.

  • Majority: Rehnquist, Thomas, Scalia, Kennedy, O’C.

    • Likely a Kennedy opinion: “Dignity” etc.

    • Scalia and Thomas skeptical of expansive definition of right.

  • Dissent: Suddenly the liberals stand up for federalism.

  • (Ginsburg’s footnote; Scalia asks her to remove…)

  • Stevens: Never know the winner of the election, but the loser is clear: Judge as impartial.

Access to Justice

• Griffin v. IL (1956): State must provide free trial transcript for purposes of appeal under 14A.

  • “NO equal justice if the trial a man gets depends on money” – But of course it does…

• Douglas (1963): If going to grant appellate counsel, cannot discretionarily do it when it would be “helpful”

  • PROF: Goes farther than Griffin. Providing an affirmative right [Gideon]. Giving right to attorney – DP?

  • Not extended to other cases

• Boddie v. CT (1971): $60 to sue for divorce not ok under DP.

  • State has monopoly on marriage/divorce

  • PROF: is this a fundamental right?

• Sosna v. Iowa (1975): 1 year residence requirement for divorce OK.

  • State’s interest in divorce/family; not an absolute bar, just a year.

• Dunn v. Blumstein (1972): Cannot have a 1 year requirement for voting. EP and strict scrutiny.

• Knas (??): Bankrupcy fee OK

• Ortwein v. Schwab (1973): Appellate fee for welfare appeal ok

• M.L.B. v. S.L.J. (1996): Breathes new life into Boddie

  • May not block indigent’s right to contest parental rights because of inability to pay fees.

Right to Travel

• Where does it come from?

  • P&I/PoI?

• Shapiro v. Thomson (1969):

  • One nation - more perfect union in the preamble

  • What about the dormant commerce clause?

    • This is about welfare benefits, which is uniquely within a state's purview

    • Exception to dormant commerce clause - role of Congress

      • Several suggestions in the opinion that Congress has blessed this state action

  • Harlan -abolishing residency reqs will prevent states from undertaking progressive welfare benefits, etc

    • Laboratories of society

  • End of Warren's tenure - surprising in dissent

    • Informed by experience as Governor - has thought about budget

  • Case has very big impact on jurisprudence - durational residency requirements date back forever

• Saenz v. Roe (1999): cannot limit welfare benefits for newly arrived residents.

  • Applies Equal Protection: States need not provide welfare, but if they do must be provided equally.

  • A “throwback statute”

Dandridge v. Williams (1970): Upholds cap on aid to families with dependent children

• Economic regulation, rational basis test. EP?

  • Invalidating this measure could take court into realm of deciding exactly how much is enough to live on

  • Punishing children for the actions of their parents?

  • See also Moreno

San Antonio v. Rodriguez (1973): EP, disparities in school funding not a violation.

• TX law capped property taxes, certain district can't raise as much money for schools

• Powell: Wealth as suspect classification cases unavailing because anyone can live anywhere

  • no fundamental right for education

  • Concern for local control over schools - recall Lopez

• Could say court is getting out of judicial activism on schools - busing, etc, unpopular

  • But how closely is education associated with other fundamental right?

  • But what does equality mean in the context of education? Should students from poor areas get more money?

  • But what about on a national level?

    • Effect of this case is to remove school funding cases to state courts, which are more likely to uphold equality of funding

• End of Warren Court era?

Plyler v. Doe (1982): EP not allow Texas to...