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Fundamental Rights Outline

Law Outlines > Constitutional Law (Duke Adler) Outlines

This is an extract of our Fundamental Rights document, which we sell as part of our Constitutional Law (Duke Adler) Outlines collection written by the top tier of Duke University School Of Law students.

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Fundamental Rights I.

II. EP: a. RBR for any classification b. HS for certain suspect classes: race/ gender SDP: a. Review if government infringes on some liberty i. Fundamental rights: HS ii. Others: RBR b. No review if not infringed, so money in general is OK

1.1 14th Amendment Privileges and Immunities Clause I.

Slaughterhouse and background a. 5A due process clause: limitation on FG i. Original bill of rights 1A-8A rights are applicable only to federal government, not to the states (Barron v. Baltimore) ii. Specifically 5A takings clauses applies only to federal government. b. Art. IV SS 2 Privileges and immunities: Limitation on the states i. Non-discrimination clause: States may not deny to OOS citizens P&I provided to their own citizens c. 14A i. citizenship clause: every person born/ naturalized in US is state and US citizen, overturns Dread Scott ii. P-I: "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States."

1. P-I: Slaughterhouse, narrow reading: Rights against state government that individuals have in their special capacity as US citizens. Rights guaranteed in the first eight amendments are not applicable to the states via the P-I clause of 14A.

2. Very narrow rights: right to travel (Saenz v. Roe), etc. iii. DP iv. EP

1.2 Modern SDP and Economic Liberties I.

Lochner a. 14A DP: procedural due process + substantive due process b. Lochner criticism

II.

i. no SDP ii. no SDP beyond incorporation iii. SDP beyond incorporation, but liberty does not include economic liberties iv. Harlan dissent: SDP, liberty includes economic liberty, but liberty is not absolute, limitation of economic liberty is justified in Lochner.

1. Worker health (paternalistic)

2. Worker wage (redistributive) v. Holmes dissent: SDP, liberty includes economic liberty, but deference c. Incorporation i. 1A-8A applicable to FG ii. 14A DP incorporates 1A, 2A (right to bear arms), 4A, most of 5A (except right to indictment), 6A, 8A excessive fines, making them applicable to States. iii. Incorporation includes both procedural and substantive DP iv. Approaches to incorporation:

1. fundamental fairness (Cardozo)

2. Total incorporation (Black)

3. Selective incorporation (Ducan, court follows this approach) a. Test: whether a particular bill of rights guarantee is fundamental to our scheme of ordered liberty and system of justice (McDonald) / whether the right is deeply rooted in this nation's history and tradition (Glucksberg) Modern SDP Review of economic regulation: two approaches reaching the same result a. dominant approach: Carolene and Williamson: rational basis review, (economic activities are a kind of liberty): i. Economic regulations will be upheld when challenged under the due process clause so long as they are rationally related to a legitimate public purpose. ii. hypothetical rationality: test looks for hypothetical, not actual, rationality (as long as Court can imagine some state of facts and legitimate purpose for the statute, the statute is upheld) b. Skupra: no review at all (economic activities are not liberty at all) c. As a practical matter, Williamson and Skrupa have same outcomes: Challenges to economic regulation always lose (no case since 1937 where an economic challenge has succeeded)

1.3 Modern SDP and Fundamental Rights

1.3.1 Contraceptives I. Griswold

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