Conlaw - 14th Amendment COPY

Question 1

13TH AMENDMENT

Answer 1

abolished slavery - 1965

Section 1
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2
Congress shall have power to enforce this article by appropriate legislation.

Question 2

14TH AMENDMENT

Answer 2

1868
“Ratified July 9, 1868, the Fourteenth Amendment granted citizenship to all persons “born or naturalized in the United States,” including former enslaved persons, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.”

Question 3

14th - Section 1

Answer 3

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Question 4

14th - Section 2

Answer 4

@states - deny the right to vote and they will reduce your proportion of representation

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Question 5

14th - Section 3

Answer 5

no confederates in Congress etc. unless they vote to make an exception for you

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Question 6

14th - Section 4

Answer 6

The US is not paying for the South’s civil war debt or slaves

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Question 7

14th - Section 5

Answer 7

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Question 8

15TH AMENDMENT - year

Answer 8

1870
“As a member of the Senate Committee on the Judiciary, William Stewart of Nevada guided the Fifteenth Amendment through the Senate. Ratified February 3, 1870, the amendment prohibited states from disenfranchising voters “on account of race, color, or previous condition of servitude.” The amendment left open the possibility, however, that states could institute voter qualifications equally to all races, and many former confederate states took advantage of this provision, instituting poll taxes, and literacy tests, among other qualifications.

The Reconstruction amendments to the Constitution extended new constitutional protections to African Americans, though the struggle to fully achieve equality would continue into the 20th century.

Question 9

15th Amendment Text

Answer 9

Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2
The Congress shall have power to enforce this article by appropriate legislation.

Question 10

Which rights are created in 14th Amendments?

Answer 10

Equal protections clause; due process clause; privileges and immunities clause; and (arguably) citizenship clause
EPC and DPC will be the main areas upon which we focus

Question 11

Why does the privileges and immunities clause not play as big a role?

Answer 11

The Slaughterhouse Cases (1873) o 14th amendment only protects federal privileges
 E.g., right for protection against pirates
 Very limited set of rights protected

Question 12

Obergefell v. Hodges (2015) (135 S. Ct. 2584) (CB 900-17)

Answer 12

Male petitioner got married to his husband on the tarmac in Baltimore bc gay marriage was legal in Maryland. He sued Ohio when they wouldn’t list him on his husband’s death certificate because gay marriage was illegal there.

Holding: SDP protects the fundamental right of same-sex couples to marry – Baker v. Nelson overturned
Option Affords Autonomy and Dignity:
Protects companionship, defeats loneliness:someone to care for the other.”
Safeguards children and Families: draws meaning from related rights of childrearing, procreation and education – permanency and stability

EPC - rights secured by equal protection – same sex couples denied the rights afforded to opposite sex couples
DPC – rights implicit in liberty – right to marry included, thus civil marriage on the same terms and conditions as opposite-sex couples
o R2: insufficient democratic discourse
1. there has actually been a lot of discussion
2. democracy not appropriate when it abridges

FR
3. Bowers = cautious endorsement of democratic process – caused irreparable dignitary wounds

o R2: allowing same-sex marriage will harm institution, decreasing opposite sex marriages by severing connection between natural procreation and marriage – does not describe DM process well – based on practical/romantic considerations -no harm principal

o R2: religious doctrines – 1st amendment protects opinion of individuals, not right of state to bar same-sex marriage

Question 13

Obergefell v. Hodges (2015) (135 S. Ct. 2584) (CB 900-17)

Answer 13

Petitioner Oberfell was in a relationship with John Arthur for two decades before Arthur was diagnosed with ALS – they decided they wanted to marry each other before he died, and tied the knot on a medical plane on the tarmac in Baltimore because gay marriage was legal in Maryland but illegal in Ohio. Arthur died three months after and Oberfell sued because Ohio would not list him as the husband on Arthur’s death certificate.

Holding: SDP protects the fundamental right of same-sex couples to marry – Baker v. Nelson overturned
0. Option Affords Autonomy and Dignity:
1. Protects companionship, defeats loneliness:someone to care for the other.”
2. Safeguards children and Families: draws meaning from related rights of childrearing, procreation and education – permanency and stability
3. Keystone of social order:
• EPC v. DPC
o EPC - rights secured by equal protection – same sex couples denied the rights afforded to opposite sex couples
o DPC – rights implicit in liberty – right to marry included, thus civil marriage on the same terms and conditions as opposite-sex couples
o R2: insufficient democratic discourse
1. there has actually been a lot of discussion
2. democracy not appropriate when it abridges FR
3. Bowers = cautious endorsement of democratic process – caused irreparable dignitary wounds
o R2: allowing same-sex marriage will harm institution, decreasing opposite sex marriages by severing connection between natural procreation and marriage – does not describe DM process well – based on practical/romantic considerations -no harm principal
o R2: religious doctrines – 1st amendment protects opinion of individuals, not right of state to bar same-sex marriage

Question 14

Dred Scott v. Sanford (1856) (60 U.S. 393)

Answer 14

slaves aren’t citizens - OG meaning

Dred Scott v. Sanford (1856) (60 U.S. 393) (canvas)  Dred Scott = slave living in Missouri who went to free states (under Missouri Compromise) Illinois and Minnesota), then returned to Missouri with owner and was sold to Sanford. He sued for his freedom, claiming to be a citizen of Missouri as he claimed freedom via domicile in a free state.
• CM: Slaves were not intended to be included as “citizens,” in the constitution. No state can introduce a new member into the political community created by the Constitution, only its own state political community within its own jurisdiction. At the time of the Constitution, slaves were considered subordinate and were subjugated by the dominant race whether emancipated or not – Court doesn’t have power to rewrite constitution a2 notions of justice. Plaintiff clearly not citizen, cannot sue

Question 15

What does the 14th amendment say about citizenship?

Answer 15

BIRTHRIGHT CITIZENSHIP + PIC

• First, it negates Dred Scott by making all born in the US citizens, other than NAs
• Ties citizenship to privileges and immunities
• Privileges and immunities clause does not specify what rights you have

Question 16

Main Args in: Eric Foner, The second founding: How the civil war and reconstruction remade the constitution (2019)

Answer 16

• Reconstruction rebuilt the US from a locally based legal culture to one committed to the equality of all Americans protected by a national government
• Prior to Civil War, Constitution was seen as neutral on the issue of slavery; although its intent perhaps tending towards a form of antislavery politics threatening to the South
o Republicans regarded slavery as a local institution protected only by states’ rights, requiring that all states that did not prescribe slavery, implicitly rejected slavery
• Backlash to Fugitive Slave Act led to perception that Due Process was essential since slaves were not permitted to testify on their own behalf—presupposing 14th amendment
• In reaction to popularity of American Colonization Society, black leaders intensified claims for egalitarian constitutionalism steeped in preamble to declaration of independence
• Civil war enhanced power of national government: imposing conscription; regulating banking, currency, and taxation; repealed ban on black testimony in federal courts; mandating equal pay for black and white soldiers; Lincoln suspended habeus corpus; freed 3 million slaves; raised money without congressional approval
o Federal government became seen as the “custodian of freedom”
• 13th and 14th amendments profess rights that transcend national identity
• Amendments were accompanied by unprecedented legislation to define and secure Americans’ civil, political, and public rights

Question 17

history From Danny Lewis, The 1873 Colfax Massacre Crippled the Reconstruction Era, Smithsonian Magazine, April 13, 2016 (thx Brad):

Answer 17

• Out of fear that local Democrats might try to seize control of the Grant Parish regional government, which was almost evenly split between black and white citizens, an all-black militia took control of the local courthouse in April 1873
• 60-150 black militiamen were killed after surrendering a courthouse at the hands of the KKK and White League (paramilitary group that intimidated black ppl and white repubs)
• Louisiana black people took this “as proof that in any large confrontation, they stood at a fatal disadvantage.”

Question 18

United States v. Cruikshank (1875)

Answer 18

United States v. Cruikshank (1875) (92 U.S. 542) (canvas)  The U.S. successfully prosecuted William Cruikshank and others under an 1870 federal statute for conspiring to murder two African Americans, thereby denying the victims all their rights under the United States Constitution and federal law [rights to (1) assemble peacefully under the First Amendment, (2) bear arms under the Second Amendment, (3) life and liberty, and (4) vote]. Cruikshank moved for an arrest of judgment, challenging the legal sufficiency of the indictments.
• Issue: Whether the charges of conspiracy were legally sufficient under the statute
o MJ ZZ: this right is only protected by the federal government when the purpose of their peaceful gathering is directly related to the federal government
o There was no conspiracy to hinder right to free assembly
o Freedom of assembly existed prior to the constitution and therefore was not “granted by the constitution”
o Nor was it alleged that the object of the conspiracy was to inhibit assembly
o There was no conspiracy to hinder Levi Nelson and Alexander Tillman in the full enjoyment of their rights on account of their race
o Complaint does not allege that the defendants made any conspiracy on account of race – it must be explicitly proved that actions were due to race, not just implied
o There was no conspiracy to deprive Levi Nelson and Alexander Tillman of 14th amendment rights
o EPC and DPC are not relevant because they do not protect citizens from one another—they only protect citizens from State action
• Rule: “[I]f two or more persons shall band or conspire together, . . . with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution . . . shall be held guilty of felony” - Sect. 6 of the Enforcement Act of 1870
• Why weren’t these men protected?

Question 19

The Slaughterhouse Cases (1873)

Answer 19

Louisiana statute granted to the Crescent City Live-Stock Landing and Slaughter-House Company the exclusive rights to engage in the livestock landing and slaughterhouse business in the City of New Orleans
• Procedural Posture: Butchers file suit under privileges and immunities clause and they lose.
• MJ: Privilege of engaging in the occupation of operating a slaughterhouse is not a privilege protected by the 14th amendment. The privileges protected after this case are only national ones: right to assert a claim against the government, right for protection against pirates and foreign governments, right to free access to seaports. Distinction between privileges of state citizenship and those of the federal nation.
o 14th amendment only protects federal privileges
 E.g., right for protection against pirates
 Very limited set of rights protected
o Right to engage in a trade is a state protected right under Article IV, sect. 2
 This is a right enjoyed by all free peoples, and left for the state to regulate
 The 14th amendment didn’t enlarge the federal government such that it assumed responsibility to regulate the rights left previously to the states
 Huq: Court has taken the proximate cause of 14th amendment’s enactment (protection of rights under 1866 Civil Rights Act) & rendered it infeasible

Question 20

The Civil Rights Cases (1883)

Answer 20

The Civil Rights Cases (1883) (109 U.S. 3) (canvas) (8-1)  the court considers five cases brought against businesses that provide public accommodation for refusing service to black individuals (sometimes cited as U.S. v. Stanley) and strikes down the Civil Rights Act of 1865.
o Holding: The 14th Amendment is narrowly constructed to apply to only state actions
o 13th amendment permits Congress to take any action necessary to “eradicate all incidents of slavery and involuntary servitude”
 Mere discrimination is not a “badge of slavery”
 Slippery slope: “It would be running the slavery argument into the ground to make it apply to every act of discrimination”
 No freeman in the North during slavery saw it as an affront to their freedom when they were refused the same accommodations and privileges as white citizens
o 13th Amendment: outlaws “all badges or incidents of slavery” in the U.S. – can be enforced against individuals, but provision of public accommodations is not a badge or incidence of slavery – private race discrimination against freed black people did not make them slaves before emancipation

Question 21

Possible Interpretations of the Section Five Power (335-336)

Answer 21

1. Complex Remedies VRA 19665 enacted after substantial Cong. investigation into discrim. in voting practices – L: test or device req. to vote + low level of participation  suspension of test/device + preclearance process for adding new ones
2. Preventative/Prophylactic Remedies remedy occurs before violation – Cong. passes

Question 22

Katzenbach v. Morgan (1966)

Answer 22

Katzenbach v. Morgan (1966) (384 U.S. 641) (CB 337-38) (thx Brad)  Section 4(e) of the Voting Rights Act provided that no person that successfully completed the sixth grade in Puerto Rico, where the language of education was something other than English, could be denied the right to vote in an election because of his inability to read or write English. The election laws of the State of New York, however, required all voters to have the ability to read and write English as a requisite to voting.
• Issue: Does Section: 5 of the Fourteenth Amendment allow Congress to overturn state legislation without a judicial determination that the state legislation violates the Fourteenth Amendment?
• MJ Brennan: “It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did” - Congressional enactment under Section: 5 of the Fourteenth Amendment is valid if it is plainly adapted, has rational basis, and consistent with the letter and spirit of the constitution

Question 23

Would refusal of service of wedding cake hinder the operationalization of right same-sex marriage under Morgan?

Answer 23

No – b/c there is no state action here

Congress decides, so long as their actions are “congruent and proportional”

Question 24

City of Boerne v. Flores (1997)

Answer 24

City of Boerne v. Flores (1997) (521 U.S. 507) (CB 340-342)  Archbishop Flores has a church in the City of Boerne but his permit application is rejected. He sues under RFRA, seeking an injunction requiring the local zoning board to authorize his building (attempting to use fed. L to force issuance of variance).
• MJ Kennedy: overbroad use of fed. power – leg. must be “proportional and congruent” (341)
o Invalidates RFRA as applied to state gov’t, but not to USFG
o Interpretation of Section 5 of 14th Amendment – authority to determine Section One scope of rights – decision to narrow Congressional authority in Boerne = result of Court’s view that if Cong had broad interpretive authority for Section One, it would undermine the Court’s necessary role in interpreting 14th amendment rights

Question 25

Would refusal of service of wedding cake hinder the operationalization of right same-sex marriage under Boerne?

Answer 25

No – Congress would have to build a record showing that there were many rights infringements, and this might be hard in this case.

Question 26

How to choose between Morgan and Boerne

Answer 26

• Original meaning or public understanding
• Institutional competence (looking forward)
o Who is best positioned to produce the good of constitutional interpretation?
o Boerne – we the court are best position to produce the good of neutral constitutional interpretation at the cost of sacrificing the original public meaning of sect. 5.

Question 27

Shelby County v. Holder (thx Brad)

Answer 27

Shelby County v. Holder (thx Brad) VRA’s formula for determining which states are required to submit legislation to pre-enforcement approval was challenged as outdated.
• Issue: Can a statute constitutionally valid when adopted later become disproportionate or incongruent and thereby unconstitutional.
• MJ ZZ: Yes, Act imposes current burdens and must be justified by current needs. When an act of congress is no longer congruent and proportional, it is unconstitutional
o Burden on the states is especially severe because generally states are free to implement laws until they have been successfully challenged
o Equal sovereignty is at issue because only 9 states are subject to pre-enactment approval
o Act imposes current burdens and must be justified by current needs
 No racial disparity exists now in turnout numbers