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Introduction to the Bill of Rights

Introduction to the Bill of Rights. What this course is about. Con Law I – structure and gov’t power Con Law II – individual rights Bill of Rights (focus on Amends 1 st , 5 th , 9 th ) Civil War Amends (13 th , 14 th , 15 th ) Themes Interpretation Public vs. Private spheres of action

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Introduction to the Bill of Rights

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  1. Introduction to the Bill of Rights

  2. What this course is about • Con Law I – structure and gov’t power • Con Law II – individual rights • Bill of Rights (focus on Amends 1st, 5th, 9th) • Civil War Amends (13th, 14th, 15th) • Themes • Interpretation • Public vs. Private spheres of action • Federalization of Rights • De-federalization (States’ Rights) Con Law II

  3. About this course • Policies listed on course web site http://classes.lls.edu/fall2006/conlaw2-manheim • Web site is an official repository for notices and info • Email listserv (also an official means of communicating) • Blog • Class Participation Points • Laptop policy • Slides, Charts, Handouts, Video • Practice Exam – late October • Reading ~ 70 pages/week • Supplement NOT assigned Con Law II

  4. Organization of course • Major Topics • Economic Regulation / Economic Liberties • Personal Autonomy / Substantive Due Process • Procedural Due Process • Equal Protection • Suspect Classes (Race, Sex, Alienage, other) • Fundamental Rights • Free Speech • Religious Freedoms Con Law II

  5. Individual Rights pre-Constitution • Under the Crown • Under Colonial Gov’ts • Under State Gov’ts • Under the Articles of Confederation Con Law II

  6. Rights in the Original Constitution • Constitutional Convention • Original Text • Art. I, § 9 – limits on federal power • Art. I, § 10 – limits on state power • Art. III - Treason • Art. IV - Privileges & Immunities Clause • Ratification Debates Con Law II

  7. Inception of Bill of Rights • Demanded by state ratifying conventions • Massachusetts: as it is the opinion of this Convention, that certain amendments and alterations in the said Constitution would remove the fears, and quiet the apprehensions, of many of the good people of this commonwealth, and more effectually guard against an undue administration of the federal government,-- the Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution: • Written by Madison, adopted by 1st Congress • “further declaratory and restrictive clauses” Con Law II

  8. Con Law II

  9. Anatomy of an Individual Right • 5th Amd: • “No person shall be … deprived of life, liberty, or property, without due process of law” • Interpretation • Which terms need to be interpreted to be given meaning and effect? • How should those terms be interpreted? • See, e.g., Murray’s Lessee v Hoboken (1858) p. 473 • If that interpretation is inadequate, can a court discover and enforce individual rights outside of the constitution? Con Law II

  10. Calder v. Bull(1798) • Chase: • “There are acts which the federal, or state, Legislature cannot do, without exceeding their authority. There are certain vital principles … which will determine and overrule an apparent and flagrant abuse of legislative power” • such as “a law that takes property from A and gives it to B” • Iridell: • “If the legislature shall pass a law, within the general scope of their power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.” • “The ideas of natural justice are [unfixed and] abstract” Con Law II

  11. Fundamental Constitutional Rights • Fundamental Rights are those which are: • Found inside the constitution • Through interpretation of constitutional text • Or found outside the constitution • Through some mechanism (such as 9th amend.) • E.g., “natural justice” [natural rights] • Strict scrutiny applies to fundamental rights • Presumption of unconstitutionality • Rational basis applies to all other interests • Presumption of constitutionality Con Law II

  12. Barron v. Baltimore (1833) • Claim: • Taking of property violates 5th Amd. • Methods of Interpretation? • The limitations .. if expressed in general terms, are naturally and necessarily applicable to … • 5th amendment must be understood as … the ratifying conventions demanded security against the general government • Had the framers of these amd’s intended them .. • Holding: • Bill of Rights applies only to federal government • Consequence of case Con Law II

  13. Then comes … the Civil War • (Southern) States demonstrated their dis-interest/inability to protect individual rights • Congress responds with 13th, 14th, 15th • Designed to provide a set of federal rights that individuals could assert against state gov’ts • Plus new congressional powers • A wholesale recasting of states rights and federalism Con Law II

  14. Con Law II

  15. The new (federal) rights • 13th: Abolishes slavery/involuntary servitude • 14th: Section 1 • Citizenship • Privileges or Immunities • Due Process • Equal Protection • 15th: Voting • Bill of Rights ??? Con Law II

  16. Slaughterhouse Cases (1873) • Constitutional Claims • 13th Amd • Abertoire monopoly treated butchers as slaves • 14th Amd, Privileges & Immunities • P/I includes right to practice one’s profession • 14th Amd, Equal Protection • Louisiana law treats independent butchers differently • 14th Amd, Due Process • Denial of livelihood deprives property Con Law II

  17. Slaughterhouse Cases (1873) • Miller’s Interpretivist methodology • Original Intent • “In any fair and just construction … it is necessary to look to the purpose” for enacting the clauses • The clauses have a “Unity of purpose … a general purpose that pervades them all” • “the one pervading purpose found in them all… freedom of the slave race.” • Textualism • Contrast 13th/14th to 15th; only 15th mentions race • “the language and spirit … are to have their fair and just weight in any question of construction” Con Law II

  18. Slaughterhouse Cases (1873) • Claim 1: Monopoly on rendering livestock violated butchers’ 13th amendment rights • Rejected • Prohibition on servitude was to enhance anti-slavery • Long apprenticeships; serfdom; etc., but not licensing Con Law II

  19. BoR as “Privileges/Immunities” • Claim 2: Privileges or Immunities Clause: • “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” • P&I clause of Art. IV • Protected “fundamental rights ... which belong, as of right, to the citizens of all free governments” • Case law on which “rights” were protected by P&I • Such as practicing one’s profession (e.g., butchery) • Not normative; only non-discriminatory • 14th Amd. Ratification debates • Inconclusive as to whether drafters intended to “federalize” Art. IV P&I “rights” Con Law II

  20. Slaughterhouse Cases (1873) • Claim 2: Privileges or Immunities Clause: • Miller draws distinction between P&I of State citizens and P or I of US citizens. Why? • Not the purpose of the 14th to transfer the security & protection of all civil rights from state to federal govt • Would give congress & S.Ct. too much power • Fetter and degrade state gov’ts • It would “radically change the whole theory of the relations of the State and Federal governments to each other and of both to the people.” • Does Miller undo the results of the Civil War & 14th? Con Law II

  21. Slaughterhouse Cases (1873) • Claim 2: Privileges or Immunities Clause: • What are the P/I of US citizens? • Field (dissenting) • 14th federalized rights of citizenship • Otherwise, 14th was a vain and idle enactment • Who is the judicial activist, Miller or Field? • If the P/I clause, or the DP clause, did protect “fundamental” rights, who would define them? • How did the Ct. find rights under the P&I clause of Article IV? Con Law II

  22. Slaughterhouse Cases (1873) • Claim 3: Monopoly violates EP Clause • Intent: 14th passed in response to Black Codes • “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this protection. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.” Con Law II

  23. Extending Bill of Rights to States “incorporation” Amendments 1-8 14th Amendment Fed Gov’t State Gov’ts State constitutions Con Law II

  24. Twining v. New Jersey (1908) • Privilege against self-incrimination • Recognized at common law (& most states) • Included in 5th amendment • Not among P/I of nat’l citizenship(Slaughterhouse) • But, is it a “liberty” interest, whose denial violates the due process clause? • If so, it is not because it is found in 5th amend, • But because it is a fundamental precept of DP • Is it a “fundamental principle of liberty & justice which inheres in the very idea of free government”? Twining Test Con Law II

  25. How “incorporation” works • Due process clause: • “nor shall any State deprive any person of life, liberty, or property, without due process of law” • Are the liberty interests in the Bill of Rights automatically the same as those in the DP clause? • Or just some? • Or others, not found in BoR (e.g., privacy)? * see Chicago, Burlington v. Chicago Also used in 5th amend: * “nor shall private property be taken for public use, without just compensation” Many of the 1st 8 amends define liberty interests Total incorp-oration Selective incorp-oration External values Con Law II

  26. Palko v. Connecticut (1937) • Does double jeopardy clause of 5th am apply to States (via 14th amendment)? • Cardozo: No general (per se) incorporation • What “rationalizing principle” does he give? • Those rights without which “justice would perish” • Neither liberty nor justice would exist if they were sacrificed • “The very essence of a scheme of ordered liberty” • “A principle of justice so rooted in traditions and conscience of our people as to be fundamental” • the essential implications of liberty itself • Seems easy to apply; which rights covered? Con Law II

  27. Palko v. Connecticut (1937) • The essential implications of liberty itself • Interpretivist methodology? • Textualism: “liberty” not self defining, unless meant to include Bill of Rights precisely • Originalism: those rights recognized (understood) at time of adoption (1868) • Intentionalism: rights as intended by the framers (ratifiers?) of the 14th amendment • Non-interpretivism: subjective meaning • Often using extra-const’l sources (e.g., “natural law”) • “A hardship so acute and shocking that our policy will not endure it” Whose policy? Con Law II

  28. Adamson v. California(1947) • Does DP clause incorporate 5th Amendment right against self-incrimination? • Reed (majority): commenting on silence is not contra Anglo-Am. legal tradition; it isn’t unfair • Frankfurter (concurring): most justices in last 70 years didn’t think so • rule: whatever majority of S.Ct. seems fair • blanket incorporation violates federalism • Black (dissenting): chief object of 14th amd. (as a whole) was to overrule Barron: • total incorporation Con Law II

  29. Duncan v. Louisiana (1968) • Is trial by jury a liberty interest protected by Due Process clause? • White: “We believe jury trial in criminal cases is “fundamental to the American scheme of justice” • Are his examples & explanations convincing, or is White just injecting his own subjective judgment? • If the latter, does this mean The content of constitutional rights is as changing as the composition of the Court? Are there no neutral principles? Con Law II

  30. Duncan v. Louisiana (1968) • Harlan (dissenting) • Due Process “liberty” stands on its own bottom • Neither includes nor limited to Bill of Rights • SCt must define “immutable principles of free gov’t” • Dynamic constitution • Due Process is an evolving concept • Black (concurring) • Total incorporation “keeps judges from roaming at will” • Would prefer that Court recognized basic function of P/I clause was to incorporate the entire BoR • Rejects federalism argument Con Law II

  31. Tests for Selective Incorporation • Sutherland (Powell v. Alabama 1932) • "fundamental principles of liberty and justice that lie at the base of all our civil and political institutions” • Cardozo (Palko v. Conn 1937) • “very essence of a scheme of ordered liberty” • “principle of justice so rooted in the traditions & conscience of our people as to be fundamental” • “neither liberty nor justice would exist if they were sacrified” • Frankfurter (Adamson v. California 1947) • Practices that “offend canons of decency & fairness [in] justice of English-speaking peoples” Con Law II

  32. Selective Incorporation • 1st Amend: • Free speech/press: Gitlow v. New York (1925) • Religion: Fiske v. Kansas (1927) • 4th Amend: • Search & seizure: Mapp v. Ohio (1961) • 5th Amend: • Takings clause: Burlington Ry. v. Chicago (1897) • Double Jeopardy: Palko v. Conn. (1937) • Self-incrimination: Griffin v. California (1965) • 6th Amend: • Right to counsel: Powell v. Alabama (1932) • Others at page 511 Con Law II

  33. Content of Incorporated Rights • Liberty rights in DP clause are not always read the same as parallel rights in BoR • E.g., trial by jury in criminal cases (6th amd) • Zelman v. Simmons-Harris (2002) • Thomas: “state action should be evaluated on different terms than similar action by Fed Govt” • Court should “strike a balance between the demands of the 14th Amd [and] federalism” • Justice Thomas has argued for selective unincorporation (e.g., 8th amendment) Con Law II

  34. Partial and Non-Incorporation • Partial (different meaning for states/fed gov’t) • 6th Amd Jury Trial: • 6-person juries ok - Williams v. Florida (1970) • 5-person juries not ok – Ballew v. Georgia (1978) • Non-unanimous juries ok – Apodaca v. Oregon (1972) • Non-Incorp (rights not found in Bill of Rights) • Standard of proof (beyond reasonable doubt) • Punitive damages • Economic liberties / personal autonomy / privacy ? • NOTE: since 5th amend also contains a Due Process clause, rights newly found under 14th can be “reverse incorporated” and made applicable to federal gov’t Con Law II

  35. Not (yet) incorporated • 2nd Amendment (right to bear arms) • 3rd Amendment (quartering of soldiers) • 5th Amendment (grand jury indictment) • 7th Amendment (jury trial in civil cases) Note: Barron has never been overruled. States do not violate the rights contained in the Bill of Rights. Rather, they violate the Due Process clause. Thus, a claim that state action is unconstitutional must allege a violation of the 14th Amendment. Con Law II

  36. Parsing DP Liberty Interests • Review question: • State law prohibits ownership of assault rifles • Methodology: • Incorporation: • Is ownership of assault rifles protected by 2nd amd? • If so, is the 2nd am. incorporated through DP clause? • Even if incorporated, does this liberty interest have the same scope as that in the 2nd amendment? • Non-incorporation: • Is ownership of assault rifles a “fundamental right” for Due Process purposes? Con Law II

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