* The Fourteenth Amendment and the Bill of Rights: Due Process (DPC) Flashcards
- 14th Amendment: Section 1:
“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 with its jurisdiction the equal protection of the laws.”
- The privileges and Immunities clause: The Slaughterhouse Cases (1873)(p.354)
a) Facts: Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this created “involuntary servitude,” abridged “privileges and immunities,” denied “equal protection of the laws,” and deprived them of liberty and property without due process of law.”
b) Held: Court held the monopoly did not violate the Thirteenth and Fourteenth Amendments.
i) Incorporation of the Bill of Rights was not the intention of the 14th Amendment.
ii) Note: J. Miller construed the 14th amendment narrowly, according to its “purpose”: reconciling things with the black population following the civil war.
iii) Effect: closed the door on using this clause to force states to recognise the substantive rights afforded to citizens in the Bill of Rights; the Due Process Clause began to be used in incorporating a citizen’s rights against the state.
Substantive Due Process
- Definition: The use of Due Process to say there are certain forms of legislation that are beyond the power of states and the federal government regardless of the procedure used. Better understood as rule of law.
a) The due process clause has been understood to encompass substantive rights
b) Background issues:
i) One Side: Due Process is not just an incorporation by reference; it is a broad phrase that makes reference to those procedures that are fundamental to ordered liberty.
ii) Other Side: Due Process is just about process and procedure.
c) Substantive Due Process is the primary vehicle of a number of economic liberties and the right to privacy
d) Lochner v. New York (1950)(p.362) (overruled):
i) Held: Found the law infringed upon one’s freedom to contract: the NY law violated the liberty protected in the 14th Amendment.
(1) The court viewed as fundamental the right to engage in financial/economic transactions without interference by the state.
(a) There are economic liberties which are to be treated as liberties under the due process clause. Given that they are liberties, the state cannot restrict them without good reason and the state has not done so in this case.
(2) Peckham says that part of the word “liberty” in the 14th amendment is the right to contract, that is if you don’t understand that contract is included in liberty than you do not understand what liberty is. ii) Dissent, Harlan: liberty includes the right of contract, but that right is not absolute and therefore it can be overridden in the interests of health and safety. Defer to the legislature.
iii) Dissent: Holmes: The word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion of the state legislature.
(1) This case involves a fundamental economic or political theory that is not for the courts to decide or interfere with the state’s determination.
Lochner Takeaway #1:
Courts are in the rights recognition business, even when those rights are not explicitly listed in the 14th amendment.
Lochner Takeaway #2:
(1) J. Peckham: it is the role of the judiciary to interpret the Constitution, including applying prevailing theories to its interpretation when seemingly appropriately embodied in the Constitution (in this case, protection against takings, impairments of contract, etc.)
(a) Peckham view (prevailed before 1930s): Court exist in part to check the excesses of majoritarianism which will at times take away what we might think of as fundamental rights. Job of the courts to protect minority rights and legislatures cannot be trusted to do this.
(2) J. Holmes: The Constitution is a reinforcement of a Majoritarian government subject to a few exceptions, which are explicitly listed, i.e. in the Bill of Rights. Unless there is something very clear in the text justifying the exception to the majority rule, the majority should prevail (regardless of prevailing economic theories) as the default position.
(a) Homes dissent (losing view up until the 1930s): the choice between these alternative political and economic theories is none of our business. Majoritarian process will protect the fundamental rights.
vi) Note: under the Lochner view, ACA may not have passed. The Court may have claimed that as a liberty issue, the federal government does not have the power (under the 5th Amendment) nor does the state (under the 14th amendment).
Post-Lochner, Pre-Nebbia
i) Two conflicting fundamental principles of political philosophy:
(1) Right to have as much liberty as possible without hurting others
(2) The right to have certain basic protections to your standard of living, health, etc and the government should protect these things.
Post-Lochner, Pre-Nebbia ii) Level of scrutiny
(1) Holmes: the state doesn’t have to show very much. The notion of police power, even if these rights exist, as long as the state isn’t acting extremely they may restrict as they will
(2) Peckham: once we recognize that these are fundamental rights, the state in its exercise of police power my only restrict them if it has a good reason, good data for restriction (which can include health and safety reasons)
Muller v. Oregon (1908):
Court sustained regulation of work hours for women in basing the decision on special considerations relating to women.
Adkins v. Children’s Hospital (1923):
the Court ruled that a federal statute prescribing minimum wages for women in the District of Columbia violated due process. (overruled in Parrish)
