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Law Outlines Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Fundamental Rights Outline

Updated Fundamental Rights Notes

Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Constitutional Law: Fourteenth Amendment, Separation of Powers

Approximately 49 pages

Extensive detailed outline for Harvard Law class on Constitutional Law: Fourteenth Amendment, Separation of Powers....

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I: Fundamental Rights: Early Applications

Tangent:

Barnette (1943) after Gobitis (1940): Reversing on Pledge of Allegiance for Jehovah’s Witnesses.

  • Free religion vs. free speech (Barnette)

  • Supreme court as bad teacher…

Overview:

Slaughterhouse: The path not taken.

Lochner: The beginning of fundamental rights under DP, and scares the court.

When law hits unevenly, turned to EP > DP. But when not available, finally move back to DP in Griswold

Slaughterhouse (1873): First time construing 14A.

  • Statute: Monopoly of slaughterhouse under state law.

  • Plaintiff claims P&I, EP, DP, 13A… b/c Denied labor in chosen field.

  • Miller: Purpose of Reconstruction Amendments is Race.

    • Efforts to use P&I unavailing – meant to overrule Dred Scott. Nothing more

    • State issue here, not federal.

    • Reconstruction Amendments not reorder state vs. federal power

  • (Court being gun shy after Dred Scott?)

  • End of P&I strength.

    • Could have done the work of incorporation better than DP?

Incorporation

  • Barron v. Baltimore: (1833) Bill of Rights to Federal government only

  • Palko Cardozo: Scheme of ordered liberty, fundamental rights…

  • Black v. FFF: Adamson

    • Black: Total incorporation, no judicial discretion.

    • FFF: Selective incorporation: Canons of decency/fairness

  • TODAY: All but jury usage have been incorporated.

    • Plus 3A Quartering and 8A Excessive Fines

McDonald v. Chicago (2010): 2A Incorporation

  • Alito and Stevens debate on substantive DP.

    • Alito: All about 2A and Heller a fundamental right. Did Heller incorporate?

    • Stevens dissents: This is about substantive DP; is this a fundamental right?

      • (Relitigating merits of Heller without stating so)

  • Thomas concurs: supports overturning Slaughterhouse and Cruikshank. Should apply through P&I clause of 14A.

  • Scalia concurs: Substantive DP, but do it in historical way. Stevens is making it up as he goes along. Originalism: the lesser evil.

Lochner (1905): state law limiting hours for bakers struck down 5-4.

  • Peckham: Liberty of contract.

    • Police Power: health of public, morals, etc.

    • Holden v. Hardy (1898): Mining safety laws OK. But baking is safer.

    • Not need paternalistic laws; labor regulation masquerading as health regulation.

    • (Anti-immigration sentiment? Discriminating against small bakeries? Price goes up – bad for consumers?)

  • Harlan: Quotes all kinds of stats, not from briefs.

  • Holmes: Lots of things legislatures can do.

    • Reasonable minds can differ; court shouldn’t jump to conclusions.

  • [Compare with Carter Coal]

  • Why is it in the anti-canon? Maybe not as bad as Korematsu or Dred Scott?

    • Stand in for the early new deal laws being struck down.

      • But court more active today

    • Insufficiently connected to the text of Constitution?

      • But there are lots of unenumerated rights – Griswold

    • “False equality”

      • But unequal bargaining power?

    • Mis-prioritazation of rights

      • Very narrow perception of state’s role in protecting citizens

    • Hatred a relic of a bygone era?

Lochner Era

  • Note: Not invalidate all laws. (E.g. Holden)

    • Labor regulations for women/children much more likely to be upheld.

  • Muller v. Oregon (1908): Regulation of hours for women ok.

    • Brandeis Brief: scientific data on implications for childbirth

  • Adkins v. Children’s Hospital (1923): No minimum wage for women.

    • PROF: Why maximum hours but not minimum wage?

West Coast Hotel v. Parrish (1937)

  • No freedom of contract; end of Lochner era

    • Unequal bargaining power; more realistic account of relationship

  • Overturns Adkins.

  • New moment in time – people and legislatures change.

Lee Optical (1955): Douglas goes out of his way to use DP.

  • Rational Basis

End of Economic substantive due process.


II: Fundamental Rights: Fundamental Rights Equal Protection

Skinner v. Oklahoma (1942): Prefer EP > DP

  • Douglas

  • Statute: 3 felonies of moral turpitude -> Sterilization

  • (8A not yet incorporated until 1962)

  • Not want to use DP, so uses EP: treats different kinds of criminals differently.

  • ** Test for fundamental rights under EP: Strict Scrutiny.

    • What is the suspect classification? Class?

  • Stone concurs: Does DP analysis. Wants more process to interfere with such a basic right.

    • Due Process, not substantive.

  • [Today: Could be DP not EP – see Griswold and Roe)

Harper v. Virginia Board of Elections (1966): 6-3 invalidates poll tax in state elections

  • 24A forbids in federal elections

  • Douglas: Strict Scrutiny applies, cites Skinner

    • “No relation to wealth” – sounds like Rational Basis?

  • ** Living Constitutionalism: NOT original meaning of 14A, since they DID have poll taxes back the!

  • Not constrained to historical notions (compare Plessy -> Brown)

  • Lassiter: literacy test under rational basis OK.

  • Black & Harlan both dissent: Have long applied rational basis.

    • Black: Stare decisis. New meanings come from amendments, not living constitutionalism.

  • Holdout/holdover

    • Could court have let this be? Was on its way out anyway?

  • [Strong originalist argument that could be made here]

Summary of EP/DP Fundamental Rights Analysis:

Fundamental Right: so important that affords protection even though not in Constitution.

  • If law denies rights to everyone, DP more relevant

    • State must provide (Griswold)

    • Examples: Privacy, reproduction, marriage, family, custory

    • Generally draws strict scrutiny, but that’s not where the action is. Once declared fundamental, that’s that.

  • If law denies rights to SOME, EP likely more relevant

    • State need not provide, but must level-up or level-down.

    • Examples: Voting, offspring, access to justice, travel

      • Even here, rights not absolute. Felons can’t vote, and only citizens, and only 18+.

    • NOT Welfare, Education.

Voting as a fundamental right

  • Bush v. Gore (2000): The opposite Cooper v. Aaron; no justice wants to sign his/her name. 5-4 per curiam.

    • Glaringly worrisome sentence: “our consideraiotn limited to present circumstances because many complexities.”

    • Language of the opinion to sweeping otherwise – would force...

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