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. o Efforts to use P&I unavailing - meant to overrule Dred Scott. Nothing more o State issue here, not federal. o Reconstruction Amendments not reorder state vs. federal power
? (Court being gun shy after Dred Scott?)
? ? End of P&I strength. o 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 o Black: Total incorporation, no judicial discretion. o FFF: Selective incorporation: Canons of decency/fairness
? TODAY: All but jury usage have been incorporated. o Plus 3A Quartering and 8A Excessive Fines McDonald v. Chicago (2010): 2A Incorporation
? Alito and Stevens debate on substantive DP. o Alito: All about 2A and Heller a fundamental right. Did Heller incorporate?
o 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. o Police Power: health of public, morals, etc. o Holden v. Hardy (1898): Mining safety laws OK. But baking is safer. o Not need paternalistic laws; labor regulation masquerading as health regulation. o (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. o 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?
o Stand in for the early new deal laws being struck down.
? But court more active today o Insufficiently connected to the text of Constitution?
? But there are lots of unenumerated rights - Griswold o "False equality"
? But unequal bargaining power?
o Mis-prioritazation of rights
? Very narrow perception of state's role in protecting citizens o Hatred a relic of a bygone era?
Lochner Era
? Note: Not invalidate all laws. (E.g. Holden) o Labor regulations for women/children much more likely to be upheld.
? Muller v. Oregon (1908): Regulation of hours for women ok. o Brandeis Brief: scientific data on implications for childbirth
? Adkins v. Children's Hospital (1923): No minimum wage for women. o PROF: Why maximum hours but not minimum wage?
West Coast Hotel v. Parrish (1937)
? No freedom of contract; end of Lochner era o 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. o What is the suspect classification? Class?
? Stone concurs: Does DP analysis. Wants more process to interfere with such a basic right. o 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 o "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. o Black: Stare decisis. New meanings come from amendments, not living constitutionalism.
? Holdout/holdover o 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 o State must provide (Griswold) o Examples: Privacy, reproduction, marriage, family, custory o 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 o State need not provide, but must level-up or level-down. o Examples: Voting, offspring, access to justice, travel
? Even here, rights not absolute. Felons can't vote, and only citizens, and only 18+. o NOT Welfare, Education. Voting as a fundamental right

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