Conlaw II Flashcards
When was the first time the 14A (and 13A) was up for interpretation and enforcement?
Slaughter house cases
What is unusual about SH grievance?
They are seeking relief under the reconstruction amendments to slaughter at places of their choosing — these amendments were enacted to provide relief to AAs post civil war.
Butchers in SH argue ___ ___ akin to slavery, hence them seeking relief under reconstruction amendments.
Involuntary servitude
Which Const. amendments represent the first time congress is vested with new powers?
The reconstruction amendments
Arguing involuntary servitude, the butchers in SH claim that they have been deprived of what?
Property without due process of law.
T/F) There is no natural law right against monopolies according to the SC.
True
_________ law is a concept of inherent morality, whereas ________ law is the concrete legal system in place within a jurisdiction.
Natural law
Positive law [shit we make up]
ROL: “The Thirteenth Amendment only bans slavery as it was experienced by Africans in the United States before the Civil War. The Fourteenth Amendment mainly protects the rights of freed slaves and African Americans, and only covers rights given by the United States, not individual states.”
Case?
SH Cases
“Louisiana state legislature created a company to control all slaughtering in the area. Butchers had to rent space from this company to do their work. The Butchers’ Benevolent Assn. of New Orleans sued, saying this was against the Thirteenth and Fourteenth Amendments.”
Case?
SH cases
The _____ ______ Clause was made to stop laws against freed slaves after the Civil War, and doesn’t apply here because the Louisiana law doesn’t involve freed slaves or race issues. So, the Louisiana law doesn’t violate the Thirteenth or Fourteenth Amendments, and the lower courts were right.
Equal protection clause, which did not apply in SH. They also said the 14A applies to laws from US, not the states.
The Due Process and Equal Protection clauses of 14A protect people from what?
DP = Protects people from being deprived of [life, liberty, or property] without due process of law.
EP = Protects persons from being denied EP under the law. [Skinner]
14A has two clauses that protect people from being deprived of life, liberty, and property without due process of law. What are they?
- DP clause
- EP clause
Does the 14As DP Clause stop a jury from making guesses about a defendant who uses the Fifth Amendment to not speak at their trial.
Yes. Adamson v. CA has since been overturned. The only part of 5A that has not been SI is the GJ cl.
A Bill of Rights guarantee [1st ten amendments] applies to the states if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the nation’s history and tradition.
Case?
- McDonald v. City of Chicago
- WA v. Glucksberg CJ Rehnqusit
BORs apply to the states if what?
- Fundamental to scheme of ordered liberty; or
- deeply rooted in nations history & tradition
This standard employed in McDonald 2010[Alito], Bruen 2022[Thomas], and Dobbs 2022[Alito] by an originalist court. Regulations still subject to Rational basis review though.
Two times BORs applies to the states?
- Fundamental to nation’s scheme of ordered liberty; or
- Deeply rooted in nations history and tradition
Article IV
_____________ P&I Cl was intended to unify the states and ensure that citizens of other states are treated equally.
__________ P&I Cl protects the rights of citizens of the United States. The 14th Amendment limits the definition of the clause to fundamental rights.
- Article 4
- 14A
In SH , the Supreme Court ruled that the Privileges or Immunities Clause of 14A only protects rights that are a result of the ________________ government, its Constitution, or its laws.
Federal Government
Article _______ provides that “The Citizens of each State shall be entitled to all P&I of Citizens in the several States.”
While the _________ provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
- Article 4
- 14A
_______________ is a rule of comity (states must treat out of staters the way they treat their own citizens)
_______________ prohibits states from depriving their own citizens of the P&I of national citizenship
- Article 4
- 14A
T/F) There is a constitutional right to travel.
True. A right protected by both P&I of Article 4 and P&I of 14A.
3 reasons you can travel cross state lines?
- Visiting [just travel]
- Economic actor
- Changing residence
Individual moving from Mississippi [state w/ low welfare benefits] to CA [high welfare benefits] and CA does not initially pay new resident same benefit rate as CA residents.
Argument?
This interferes with my const. right to travel. As US citizenship I can choose any state to make my home, and that new state cannot treat me as an unwelcome guest.
“States are required to compensate the owners of private property when their property is taken for public use.”
Quincy RR v. Chicago
The city of Chicago decided to make a street wider. To do this, they had to take some land owned by a railroad company. The city asked a jury to decide how much money they should give the railroad company for their land. The jury said the city should only give the railroad company one dollar. The railroad company didn’t think this was fair and said it was against their rights.
Quincy RR v. Chicago
DP of 14A provides that Just having a court process isn’t enough - the government also has to pay a fair amount.
Quincy RR v. Chicago
Which BORs have not been incorporated as against the several states?
3 = No quartering
5 = Partial, GJ Trials
7 = Jury, civil trials, $20
9&10
What is the 3rd, 5th[partial], and 7th Amendment?
- Right against Quartering of troops
- Right to indictment by GJ
- Right to civil jury trial, >$20
Today, most provisions of the BORs do bind the states through selection incorporation of what A?
14A
_____________ in 1944. 4A precedent case providing that States, just as FED gov., must suppress evidence seized in UR search or seizure.
Mapp v. Ohio
Evidence obtained through an unreasonable search and seizure in violation of the Fourth Amendment is inadmissible in state criminal proceedings.
Mapp v. Ohio
Police entered her home without permission because they believed a suspect was hiding there. They showed her a piece of paper they said was a warrant. When Mapp took the paper, the police fought her to get it back. They searched her home and found books and photos, which they used as evidence in a trial against her. Mapp was found guilty, even though there was no proof that the police had a real warrant.
Mapp v. Ohio. This groundbreaking case incorporated the 4th amendment as against the several states through SI of 14A.
What case incorporated the 6th Amendment?
Ramos v. Louisiana
Almost all states in the U.S. and the federal justice system required unanimous jury verdicts. Only Louisiana and Oregon allowed convictions based on nonunanimous jury votes. Evangelisto Ramos was charged with a serious crime in Louisiana. Ten jurors voted to convict him, and two voted to acquit.
Ramos v. Louisiana which SI incorporated the 6th Amendment.
Has the 9 and 10A been incorporated?
No.
Is the 2A incorporated?
Yes. All BORs are except 3, 5[partial], 7, 9, and 10A.
“In FED prosecutions, no one can be imprisoned in the absence of prior grand jury indictment.”
Is this true for state trials?
No, this part of 5A has not yet been incorporated as against the several states.
Does the Due Process Clause of the Fourteenth Amendment prevent a jury from drawing inferences regarding a defendant invoking the Fifth Amendment to refuse to testify at trial?
Yes since Adamson v. California was overturned. Currently, the only portion of 5A not incorporated is the right to GJ trial.
“A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the nation’s history and tradition.”
Case?
McDonald v. City of Chicago
McDonald asked if the ___ A applied to the states?
2nd Amendment
McDonald incorporated the 2A because in ________ , the Court found that individual self-defense is a basic right, which forms the central component of the 2A.
Columbia v. Heller
Which case formed the basis of holding in McDonald?
Columbia v. Heller
3 clauses of the 14A?
- DP
- P&I
- EP
Can states retroactively regulate the working. hours of certain classes of workers without violating the DP clause of the 14A?
Maybe… Lochner v. NY said no but this case overturned by WCH v. Parrish which says K interest must be balanced against well being of the workers.
“In 1896, the New York legislature enacted the Bakershop Act, which limited the hours bakers were permitted to work to no more than 10 per day. Joseph Lochner (defendant) owned a bakery in New York (plaintiff) and was fined twice under the law for overworking an employee.”
Lochner v. NY
“The general right of an employer to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment to the United States Constitution. The right to purchase or to sell labor is part of the liberty protected by this amendment”
Lochner v. NY
In contrast to Lochner v. NY, which later case said that actually, freedom to K is not a liberty right in the Constitution?
West Coast Hotel v. Parrish. Liberties subject to restraint for health, safety, and gen welfare concerns.
This eventually becomes RBR in Carolene.
- Lochner v. NY
- WC v. Parrish
Which later case said that freedom to K is actually not a legitimate liberty interest?
WC v. Parrish, CJ Hughes: especially when it interferes with health and gen. welfare interests. [Min wage for women]
Hughes contends that DP liberties are restrained by health, safety, and gen. welfare interests.
Contrary to Lochner, this court held that liberty to K is not absolute and must be balanced against the state’s interest in protecting health, safety, and welfare.
WC Hotel v. Parrish, CJ Hughes.
T/F) Double jeopardy bars retrial on a higher charge after a jury has convicted on a lesser included offense.
True. Palko has been overturned. [This didn’t help him as he was executed]
How many times may you be prosecuted?
51X. One trial for each state + the FED government. [Built in exception to DJ]
The ________ A of the United States Constitution protects against double jeopardy. The double jeopardy clause prevents a person from being tried or punished more than once for the same offense.
Is there an exception?
- 5A
- Yes. You can be prosecuted and acquitted 51X for the states and FED.
[Adamson v. CA] Frankfurter vs Black
Which SC Justice said there is “no mechanical procedure to determine if DP has been violated.” Instead, a “totality of the circumstances” inquiry is required.
Frankfurter concurring.
What is CJ Black’s argument in Adamson v. California?
“The Court should apply the Bill of Rights to the states rather than substituting its own judgment to determine which provisions of the Bill of Rights should be incorporated.”
CJ Black is a ______. He carried around the Constitution and believed in total incorporated. He believed the entire text of BORs applied to states through DP of 14A.
Textualist / Originalist
What is CJ Black’s other famous notion / quote?
Make no law means make no law. IE: 1A protects free speech ABSOLUTELY. [Amen brother]
CJ FF or CJ Black?
Which interpretation limits to rights written in the text of Constitution?
CJ Black. [Good]
Does the Constitution say anything about stomach pumping?
No. But this concept demonstrates diff. between Black and FF. FF says this “shocked the conscious and should be suppressed evidence.”
Is Adamson good law today?
No, the idea that self incrimination part of 5A didn’t apply to the states has since been overruled. Today, only the GJ portion has not been incorporated.
Who won FF vs Black debate?
Well, most provisions of BORs have been incorporated against the states but methodically the incorp. Is closer to FF than Black
CJ Thomas, concurring in McDonald agreed that 2A applied to states but disagreed that it came from DP cl. What did he argue?
It applied through P&I cl of 14A. It is a “guranteed privilege of being an American citizen.”
Would same sex marriage be on the list of privileges / incorporated under 14A for CJ Thomas in McDonald?
No. His analysis looked out the original public understanding of the text when enumerated. Although, he also states that NO rights should be incorporated under 14A DP cl. but instead the P&I cl.
CJ Thomas wrote only for himself in McDonald, and this opinion raises the prospect of reconsidering what case?
SH, in favor of the Butchers with his view. IE: BORs mean exactly what they say they mean, no interpretation. He said in McDonald that the 2A did work for citizens but through P&I clause not the DP clause.
Chief Justice ________ is all by himself in the view that SH case was wrongly decided and should be revisited.
Thomas
Except for CJ Thomas, the ____ CL of the 14A continues to do very little and does not make any particular provision of BORs applicable to the states, except–according to SH–the right to do what?
- P&I Clause of 14A
- Right to petition congress for redress of grievances.
According to most CJs in McDonald, what is the one right vested by P&I cl of 14A?
Right to petition congress for redress of grievances.
T/F) As law stands, the P&I cl. makes NO provisions of BORs applicable to the states.
True
For 8 Justices (not Thomas) in McDonald, the _____ Clause of the 14A makes SOME provisions of the BORs applicable to the states.
Due Process
According to 8 Justices in McDonald, how to you know which BORs are applicable to the states through DP clause?
- Fundamental to Nation’s scheme of ordered liberty
- Deeply rooted in nations history and traditions.
T/F) Once recognized, constitutional rights claim binds state gov. the same as FED gov.
True
T/F) Rights recognized as fundamental that means any law / executive action infringing that right is subject to strict scrutiny.
False!!
T/F) For claims that if a right is fundamental then any law infringing is analyzed with “SS,” this is INCORRECT!
True. Incorrect analysis. Do not apply SS! [Roe v. Wade is no longer good law :)]
What case shows what rights enforcement is triggered by claim that right to carry is a constitutional right?
McDonald and again in NY Rifle & Pistol assoc. v. Bruen
“A law in New York said people had to show they had a special need to protect themselves to get a license to carry a hidden handgun in public. The New York State Rifle & Pistol Association didn’t agree with this law and said it went against the Second and Fourteenth Amendments.”
NY State Rifle & Pistol Assoc. v. Bruen
Holding: “A government rule that limits the right to own and carry guns is not allowed if it doesn’t match how America has traditionally handled gun rules.”
NY State Rifle & Pistol assoc. v. Bruen
In 2022, CJ Thomas got a chance to use his standard from McDonald in another case. He would love for this standard to be made applicable across the board.
- What case?
- What standard?
- NY State Rifle & Pistol v. Bruen
- “Only regulations permissive today are those that would have been allowed in 1791 when Amendment was ratified.”
“Only regulations of weapons possession that are const. permissive today are those that would have been allowed in 1791 when 2A ratified.”
Chief Justice Thomas in Bruen. He would love to make this standard applicable across the board. [I agree]
Under _________, only restrictions permissive on guns today is those that were permissive in 1791.
Bruen [Hell yea]
Under Bruen, is there a constitutional right to have operational weapons outside home when traveling by m/v?
Exceptions?
- Court says yes. [Good]
- Yes, McDonald / Heller says you can’t carry in sensitive places + Felons may be disarmed.
For Conlaw II, gun inquiry is what?
1791 analysis, Bruen standard set by Chief Justice Thomas. [Goat # II]
___ ____ argument: Used when a law doesn’t involve fundamental rights like free speech, religion, or voting. It allows the government to restrict rights if there’s a conceivable legitimate reason for doing so.
The plaintiff must prove that the law isn’t related to any legitimate government purpose.
Rational basis argument
What’s a good backup argument if you don’t have any other constitutional standing?
Rational basis argument – IE: Gov. lacks rational or reasonable purpose to do this.
What argument is this? Gov. lacks rational or reasonable purpose” and if means its chosen to implement its purpose are not reasonably related to that purpose.
Rational Basis
If gov. acts on hostility for hostility sake, this is…
Per se irrational
_________ due process: focuses on whether the government has a legitimate reason to deprive someone of life, liberty, or property, essentially examining the content of the law itself
Substantive
______ due process: focuses on whether the government followed fair procedures when taking action against an individual, ensuring proper notice and a hearing process before depriving them of their rights;
Procedural
_______ due process looks at “what” rights are protected, while procedural due process looks at “how” those rights are protected_______
- Substantive
- Procedural
PI clause of Article 4 protects businesses or citizens?
Citizens only
Does the DP clause of the 14A protect citizens only?
No, protects businesses as well.
Is there an absolute right to K?
No.
If S.C. prevents me from accessing foreign language literature? What sort of violation?
Substantive DP
Does the 1A also protect right to RECEIVE information?
Yes.
What if SC puts me on trial for possessing prohibited foreign language literature and then denied me a lawyer? Sort of violation?
Procedural DP
The question is whether a state can set the price of goods without violating the Fourteenth Amendment’s Due Process Clause.
Yes, Nebbia v. NY
During the Great Depression, milk prices were so low that farmers stopped making milk. So, the state decided to set milk prices to make sure farmers got paid fairly and people could still get milk. This was a fair decision that helped the public, even though it meant the government was involved in setting prices. The Fourteenth Amendment doesn’t stop states from making rules like this, as long as they’re fair and not random.
Nebia v. NY
The court held that the Due Process Clause of the Fourteenth Amendment does not prevent states from enacting economic policies [setting prices on milk] to promote the public good, as long as those policies are not unreasonable or arbitrary.
Nebbia v. NY
14A, which clause?
“Prohibits states from depriving “any person of life, liberty, or property, without due process of law,” meaning the government must follow fair procedures before taking away someone’s fundamental rights.”
14A DP clause
14A, which clause?
“States that no state can “deny to any person within its jurisdiction the equal protection of the laws,” prohibiting states from discriminating against individuals based on race, gender, or other protected characteristics.”
EP clause
T/F)1A also protects against establishment of a religion or prohibiting the free exercise thereof.
True
In 1788, what were the only textually specific limitations on state and FED power?
Art I Sec 9&10
______ made the drafting of BORs an important action for Congress in 1789.
Madison
Privileges & Immunities
___: “The citizens of each state shall be entitled to all P&I of citizens in the several states.”
____: “No state shall make or enforce any law which shall abridge the P&I of citizens of the US.”
- Article 4 P&I
- 14A P&I
_____ P&I clause appears to state that whatever P&I a state gives its own citizens, it must also give to citizens of other states.
Article 4 [Corfield v. Coryell]
In what 1823 case did the Court show that states may not discriminate against non-residents respecting a fairly broad range of interests?
Corfield v. Coryell
T/F) In Corfield v. Coryell, the court upheld a broad range of interests for nonresidents of the state but said non-residents did not have a right to do what?
Harvest oysters in NJ waters.
So _________ teaches that the Art. IV clause protects citizens of each state against action of other states that would infringe their privileges and liberties that “are fundamental.
IE: The rights you give your own residents cannot be outright denied to other nonresidents under Article 4 P&I.
Coryell
T/F) These privileges and immunities do not include the right to dredge for oysters.
True [Coryell]
[Slaughterhouse] teaches that 14A P&I protects citizens of the United States against state action that would abridge privileges or immunities “which owe their existence to….
the Federal government or the Constitution.
SH showed what rights protected under P&I?
Protects US citizens against state abuse of rights owed to the Constitution or Federal gov. Very limited class of rights.
SH protects a narrow class of rights under 14A P&I. What are they?
- Right to petition FED gov.
- Use navigable waters in US
- Seek protection of FEDs from Pirates
- Enjoy privileges secured by treaty
The SH case protects very narrow canon of rights.
- Right to petition FED gov.
- Right to use navigable waters
- Protection from pirates
4 Rights from treaties
So, does this case apply the Bill of rights to the case?
No.
Per SH, the P&I of 14A applies BORs to the states and protects broad class of rights. (T/F)
False
Does the P&I cl of the 14A apply BORs to the states?
No. [Slaughterhouse]
According to CJ Miller in SH, the P&I clause of 14A doesn’t apply b/c that clause protects a very narrow class of federal rights.
What did he say about EP clause of 14A?
This is intended to provide relief to newly freed slaves.
14A has 3 clauses considered in SH. What are they and which one slammed shut?
- P&I [shut]
- EP
- DP
Since SH, has the door to P&I of 14A narrow class of rights ever been opened again?
Once to protect the constitutional right to travel. [Saenz v. Roe]
Does the Constitution say anything about monopolies?
No. SH.
Article 4 P&I allows citizens to bring COA against who?
Other states that have discriminated against them. [Not their own state]
If you are seeking invalidation of state law or order, in your own state? You are relying on the _____ and judicial interpretation of it.
Constitution. IE: One of the clauses in the 14A.
Why didn’t SH πs use Art. IV P&I for their argument?
Because they were suing their own state.
In SH, it was provided that Article 4 P&I protects rights of ____ citizenship while the 14A P&I clause protects rights of ____ citizenship, which is much narrower.
- State citizenship
- Federal citizenship
What is the widely accepted meaning of SH holding?
- 14A P&I does not incorporate BORs to the states.
- 14A P&I protects narrow set of Federal rights.
- 14A was not meant to shift authority from states to FEDs.
For many years, Barron v. Baltimore represented the fact that BORs was applicable only to FED action and 14A did very little to apply them to states. SH did little to change this. What case finally did?
Quincy RR v. City of Chicago – SC protected against uncompensated seizure of property.
What case showed that the 14A does in fact protect against uncompensated seizure of property?
Quincy RR v. COC
30 years after Quincy RR v. COC, the Court first began to take seriously the prospect that 1A freedoms did apply to the states. How did they incorporate?
DP clause of 14A. Many aspects of BORs incorporated against states this way. [DP]
What case used DP cl. of 14A to incorporate 2A?
McDonald v. COC [2010] based on Heller. Then expanded in Bruen 2022 by CJ Thomas.
After McDonald, just 6 years ago, the SC incorporated yet another BOR against the states. What was it?
Timbs v. Indiana incorporated “excessive fines” clause of 8A.
Timbs v. Indiana in 2019 incorporated what?
“Excessive fines” cl. of 8A. DP of 14A. DP clause protects those rights that are fundamental to nations’s scheme of ordered liberty OR those rights deeply rooted in nation’s history or tradition. Ginsberg said the “excessive fines” cl. was deeply rooted.
Today all provisions of BORs applicable to states except?
3: right against quartering troops
5: Right to commence criminal proceedings by GJ indictment
7: right to civil jury in trial for $20 or more
In Slaughter-House, Justice Miller held for a 5-4 Court that the Fourteenth Amendment Clause protects citizens of the United States against state action that would abridge privileges or immunities “which owe their existence to the ______________ government.
Federal only and a very narrow class of rights.
When was the first and only time the SC used the PI clause of 14A to invalidate state government action?
Saenz v. Roe: Constitutional right to travel.
SC has since used what clause from which amendment to restrain authority of state and municipal governments?
DP of 14A
Are there “substantive” limits on what state and local governments can do in the eyes of the FED?
Yes. Substantive and procedural rights in the DP clause of 14A which says…
“no state shall deprive any person subject to its jurisdiction [persons include citizens, corps. Legal persons, etc.], may not be deprived of life, liberty, or property without due process of law.”
In 2020, in Ramos v. Louisiana, the SC held that state and FED courts are held to same standard under 6A. What standard?
Valid convictions must be rendered by UNANIMOUS jury.
Is Palko v. Connecticut still good law?
No. The Court later overruled Palko and decided that D.J. bars retrail on higher charge after a jury has convicted on lesser included offense.
Is Adamson v. CA good law today?
No. Griffin v. California overturned, ruling that 5A right against self-incrimination did apply to state courts. The court found that using a ∆s decision to not testify as admission of guilt was unconstitutional.
T/F) The McDonald Court rejected the argument that the P&I clause applied the whole BORs against the states.
True
- In Ramos v. Louisiana in 2020, the Supreme Court ruled that jury convictions in criminal trials in state court must be unanimous, but one question remains?
- Why did court incorporate 6A?
- Whether Juries must comprise 12 individuals in state courts as well as federal courts has not yet been resolved.
- Right to unanimous jury is “deeply rooted” in nations history and tradition and even England’s before ours.
T/F) Whether Juries must comprise 12 individuals in state courts as well as federal courts has not yet been resolved.
True
McDonald shows that it is simply implausible to assert that judicial classification of a right as “fundamental” entails application of SS. [T/F]
True
The McDonald plurality, at least, teaches that once a constitutional right is made applicable to the states, it applies to local, state, and federal action in precisely the same terms. [T/F]
True
McDonald provided that right to have operational handgun in home was only 2A right binding on state and FEDS until what case?
Bruen. Right to carry even outside the home. [2022] CJ Thomas for the W.
In Lochner, it was decided that there was a right to K and to infrigne it was violation of DP. Was this right upheld in Nebbia?
Nope.
“Freedom to contract is not absolute. States inherently possess the power to pass regulations that promote the public good.”
Case?
Nebbia, contrasting the previous logic in Lochner which said there was a right to K. The law must not be (1) unreasonable or (2)arbitrary.
+ WC Hotel v. Parrish
+ Carolene Products
Freedom to K unwritten right is gone… but many unwritten rights remain [Myers v. Nebraska]
In Nebbia, the test for regulating freedom of K is what?
Legitimate purpose test [rational basis]
States may regulate economic rights. [T/F]
True. The law must be “rationally related” to legitimate gov. interst.
Can a states regulate prices? Such as for milk?
Yes. In Nebbia v. New York. States may enact laws for public good so long as not:(1) UR; or (2) Arbitrary.
Today, when not looking at a fundamental liberty, we use the rational basis test. [Carolene] - Must have been rationally related. Ok even if wasteful or unfair.
What case demonstrated that commercial and economic legislation would no longer be subject to heightened scrutiny but must instead satisfy rational basis review?
Carolene products. This is the test we use today for non-fundamental rights.
Carolene products footnote 4: Future legislation may be subject to heightened scrutiny if…
1.
2.
3.
- Violates constitutional provisions [BORS]
- Restricts political processes
- Discriminates against religious or racial minorities
How many clauses in section 1 of the 14A?
Four.
1. Citizen clause
2. P&I clause
3. DP clause
4. EP clause
Who is bound by the EP clause?
The states. “…No state shall deny any person of the EP of the laws…”
This case was the first time the SC applied substantive DP to protect individual liberties not specifically [textually] enumerated in the Constitution, such as being taught foreign language in school.
(Protected unwritten liberties)
Myers v. Nebraska
“The DP Cl. protects not just freedom from physical restraint, but also other [unwritten] freedoms like the freedom to contract, to work, to learn, to marry, to raise children, to practice religion, and to pursue happiness. These freedoms can’t be interfered with by laws that are arbitrary or unreasonable and don’t serve a legitimate state purpose.”
[Lochner era case]
Myers v. Nebraska. This case is shaky regarding freedom to K. [This is a lochner era case and lochner later overturned]
[Lochner era case]
“States can make kids go to school and can make rules for schools, but they can’t make kids only go to public school. The Fourteenth Amendment lets parents and guardians choose how their kids are educated. Kids aren’t owned by the state. “
Pierce v. Society of Sisters
The ____ ____ clause of 1A protects right of citizens to practice religion as they see fit or choose.
Free Exercise Clause
This case represents the right to choose private school, including a religious one.
Pierce v. Society of Sisters
Most unwritten rights are still enforceable today such as right to choose school for kids, right to receive information, etc.
One case from the 1920s has been overturned though and is no longer valid. Which one?
Absolute right to K. [Lochner] States may regulate if legitimate purpose / rational basis.
What was difficult for the court in Skinner v. Oklahoma?
Well, the Lochner era had recently been overturned, tossing the unwritten right of Ks. So, how could the SC enforce the unwritten right against sterilization? Here, EP was argued. Once class of criminals being treated differently than another class.
How did the SC in Skinner v. Oklahoma, prevent Skinner from sterilization? Recall they had a problem b/c they had just tossed Lochner.
EP clause. “ The law here only applies to criminals who have been convicted 3X of serious crimes, but not to criminals who have been convicted 3X of other crimes. Oklahoma doesn’t have a good reason for treating these criminals differently. The law is not fair to Skinner and goes against the Fourteenth Amendment.”
Define sec 1 of 14A.
- All persons born / naturalized in US are citizens of US.
- And NO state shall abridge P&I of US citizens
- Nor deprive any person of L,L,orP without DP of L,
4.nor deny any person EP of laws.
Define all clauses of 14A. [Sec 1]
- CC: All persons born/naturalized in US are citizens of US.
- And NO state shall abridge P&I of US citizens,
- Nor deprive any citizen of L,L, or P without DP of L,
4, Nor deprive any citizen of EQUAL protection of law.
DP Clause: Nor shall any state deprive citizens of Life, Liberty, or Property without DP of Law.
Regarding Liberty, does this just mean bodily autonomy?
No, it implies many unwritten rights such as acquire useful knowledge, to marry, to establish a home and raise children, to practice religious faith, and to generally pursue common-law notions of happiness.
Case: Myer v. Nebraska
Under selective incorporation, when might the Court incorporate a particular BOR liberty?
You must show that the right / liberty is 1) fundamental to nation’s scheme of ordered liberty or 2) deeply rooted in nations history and traditions.
CJ Thomas concurred in McDonald with Majority but his reasoning is different. What was his concurring opinion?
The 2A applies to the states not for DP but for P&I of 14A as a fundamental privilege of American citizenship.
Per ______, , it is simply implausible to assert that judicial classification of a right as fundamental necessarily entails application of strict scrutiny to any law or governmental action impacting assertions of that right.
McDonald [2010]
McDonald teaches us that once a Constitutional right is made applicable to the states, it applies….
to local, state, and FED in precisely the same terms. [It applies uniformly]
In these three cases the Supreme Court expressly rejected that interest-balancing “SS” approach for a textual and historical approach.
Heller and again in McDonald. Then embraced and textual and historical approach. Finally, reaffirmed in 2022 with Bruen.
Is a “special-need” requirement for gun carrying constitutional?
No, not permissive under 1791 analysis. [Bruen, McDonald, and Heller]
“The insurers insisted there is a substantive constitutional liberty to do business, and that this principle is called liberty of contract.”
What argument is this?
Substantive DP violation of a liberty interest [unwritten] secured by the 14A.
“South Carolina lacks the power to prohibit me from reading foreign language literature.”
Procedural or substantive?
Substantive DP violation of 14A of an unwritten liberty interest.
Whats a famous SC case enforcing a substantive DP right? [Hint: This case for a certain, unwritten liberty has since been overruled.]
Lochner. Substantive violation of unwritten liberty = freedom to K. [Since overruled]
In what case did CJ Douglas say that “States have the general police power to pass laws that regulate for the health and safety of their citizens.”
So long as it follows…
Under DP = Must have rational basis for the law. [RBT applied after Carolene]
Williamson v. Lee optical
Does Dobbs prohibit abortion reguatlion?
No. It sent it to the states.
“It is footnoted, however, that although rational-basis review is applied to this case, other types of cases exist in which a stricter review of legislative judgments is required…”
“Whereas… (1) legislation violates the Constitution on its face, (2) attempts to distort or rig the political process, or (3) discriminates against discrete or insular minorities.”
Carolene products
“A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem.” Case prior to Carolene which expanded on this and cemented RBR.
Williamson v. Lee Optical, preceding Carolene products.
Which Supreme Court case expressed the most skepticism towards substantive DP?
McDonald v. City of Chicago. CJ Thomas in concurrence. “criticized the “legal fiction” of substantive due process, stating that it lacks a guiding principle to distinguish fundamental rights that warrant protection from non-fundamental rights that do not. “
Which CJ criticized the argument for substantive DP?
CJ Thomas, Concurring in McDonald. “The Due Process Clause only guarantees process before a deprivation of a right, and cannot define the substance of rights not expressly included in the Constitution.”
He is banging the P&I clause of 14A drum.
Why did CJ Thomas criticize substantive DP clause?
He said the DP clause cannot define what rights are protected. Too much interpretation. He argued in McDonald for the P&I clause to apply 2A.
Skinner v. Oklahoma used what analysis on the Oklahoma law?
Strict scrutiny, this analysis no longer used under McDonald. The Court saved Skinner by using EP clause.
T/F) “Under the Equal Protection Clause of the Fourteenth Amendment, a state may not outlaw distribution of contraception to unmarried persons.”
True [Eisenstadt v. Baird, 1972]
What unwritten right was recognized in Eisenstadt? What clause did the Court apply?
- Right of unmarried persons to contraception.
- EP clause. Treating married v. unmarried persons differently in the eyes of the law.
What case?
1. Right to contraception for unmarrieds.
2. Right to teach language other than english in school?
3. Right to choose school for kids?
4. Right to carry?
- Eisenstadt
- Myers v. Nebraska
- Pierce v. SOS
- Heller, McDonald, then Bruen
Unwritten right argument is what clause?
DP clause then alternate EP if your client is a class of person treated differently from another class. IE: Eienstadt case. [Unmarried persons v. married persons & contraceptions]
Why didn’t butchers find relief in SH?
According to court at this time =
1) 13A applies to slaves.
2) 14A EP clause helps slaves.
3) 14 P&I clause is very narrow set of US Citizen rights that do not apply here.
