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