Week 6: The Process of Protecting Rights

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Week 6 The Process of Protecting Rights

• Are States Limited by Rights?
• Which Rights, if So?
• Are Others Restricted Too?

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What Rights?

• First, lets define rights . . .
• One issue is whether to frame rights as a license
  of persons, or as a limit on government
• A related issue is encountered in discussing the
  content of rights are they defined in the
  context of government processes, or on individual
  actions and beliefs?

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The Textual Evidence of Rights

• I.9 restricting Congress on habeas corpus, bills
  of attainder, ex post facto laws
• I.10 restricting states on bills of attainder, ex
  post facto laws, and impairment of the
  obligations of K
• III.2 jury trials for crimes, held in states of
  crime
• III.3 defining treason and evidence
• VI no religious test for holding any office

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The Bill of Rights

• Not included initially as inviting the dangers of
  omission
• But fear of silence on rights overcame the fear
  of omitting some
• Religion establishment, free exercise, speech,
  press, assembly, petition
• Arms, quartering, unreasonable searches and
  seizures, criminal procedures, due process,
  takings, civil trials, excessive fines and
  punishments,

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FDRs Third Inaugural -- 1941

• In the future days which we seek to make secure,
  we look forward to a world founded upon four
  essential human freedoms.
• The first is freedom of speech and expression
  everywhere in the world.
• The second is freedom of every person to worship
  God in his own way - everywhere in the world.
• The third is freedom from want, which, translated
  into world terms, means economic understandings
  which will secure to every nation a healthy
  peacetime life for its inhabitants - everywhere
  in the world.
• The fourth is freedom from Fear, which,
  translated into world terms, means a world-wide
  reduction of armaments to such a point and in
  such a thorough fashion that no nation will be in
  a position to commit an act of physical
  aggression against any neighbor - anywhere in the
  world.
• That is no vision of a distant millennium. It is
  a definite basis for a kind of world attainable
  in our own time and generation. That kind of
  world is the very antithesis of the so called new
  order of tyranny which the dictators seek to
  create with the crash of a bomb.

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Do the Constitutional Protections of Rights Bind
the States?

• The first look at the question in Barron No
• When pushed in the Slaughter-House Cases No, yet
  again
• But gradually, the answer shifts to yes -- the
  Civil War and the resulting amendments made a
  difference . . .
• Saenz acknowledgement of the change -- and
  portent of the future?

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The First Incorporated Rights

• Chicago Co., 1897 takings
• Twining, 1908 14th Am. due process is the
  vehicle for incorporation
• Gitlow, 1925 due process protects speech rights
• Fiske, 1927 speech, press, religion
• Powell, 1933 Scottsboro trial reversed for lack
  of effective counsel as a due process right

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The Scottsboro Boys
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More Images From Powell Price and Bates
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The Crowd at the First Trial
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The First Jury
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Scottsboro Courtroom Spectators
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New Counsel Liebowitz Appointed
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Judge Horton and Leibowitz
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Judge Horton Listens to the Doctor
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Leibowitz and Patterson
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Four Released But Five Remain
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The Incorporation Debate

• Total incorporationists (Black most notably) vs.
  selective incorporationists
• Palko and Cardozo (a selective incorporationists)
  Does the right flow from a principle of justice
  so rooted in the traditions and conscience of our
  people as to be ranked as fundamental?

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More on Which Rights are Incorporated

• Adamson, 1947 No incorporated Fifth Amendment
  right not to testify
• (Frankfurter, concurring on grounds of practice
  and precedent, notes an eccentric exception)
• Black The Bill of Rights applies just as much to
  state govt as to the feds

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More Recent Additions to the Content of the
Incorporated Rights

• Oliver criminal defendants right to public
  trial
• Mapp v. Ohio, 1961 Fourth Amendment freedom
  from unreasonable search and seizure
• Gideon, 1963 6th Am. Right to Counsel
• Malloy, 1964 right to take the Fifth
• Pointer, 1965 right to confront accuser
• Klopfer, 1967 right to speedy criminal trial
• Washington, 1967 right to process to obtain
  witnesses
• Duncan, 1968 right to jury trial on criminal
  charge
• Williams, 1970 BUT 6-person jury okay for state
  criminal trial, even though 12 for feds
• Apodaca and Johnson, 1972 AND non-unanimous
  state verdicts okay
• Also incorporated 3d am, establishment clause
  (Wallace, 1985)

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Blacks Practical VictorySave for Whats Not
Incorporated

• Note Blacks concurrence in Duncan claiming
  victory over the selective incorporationists
• Not (yet?) incorporated 2d Am, 3d Am., 5th Am.
  right to a grand jury in criminal cases, 7th Am.,
  8th Am.

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Does the Constitution Prevent Others From
Violating Rights?

• Is the federal government constrained by the 14th
  Amendment jurisprudence? Reverse incorporation .
  . .
• The current assumption is that the federal and
  state governments ARE bound to respect most
  constitutionally-identified rights
• But do others (nongovernmental entities and
  persons) also have to respect those rights?
• Civil Rights Cases, 1883 -- no

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Exceptions to State Action . . .

• The exceptions were largely presumed to swallow
  the rule for many decades in the 20th century
  --until the demise of the commerce clause and the
  re-discovery of the Civil Rights cases in U.S.
  v. Morrison

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The State Action Doctrine Only States Bound to
Respect Rights

• Emerged in the Civil Rights Cases
• the prohibitions of the 14th amendment are
  only against state laws and acts done under
  state authority Reaffd in VMI
• Two consequences of the doctrine
• 1. emphasis on other powers and laws to reach
  private conduct
• 2. vigorous exploration of exceptions

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The Public Functions Exception

• Marsh, 1946 company town
• Jackson, 1974
• Terry, 1953
• Evans, 1966
• Logan Valley, 1968
• Lloyd Corp. v. Tanner, 1972
• Hudgens, 1976

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Public Functions Exception Tests

• Marsh v. Alabama company town
• Key test from Marsh the more an owner, for his
  advantage, opens up his property for use by the
  public in general, the more do his rights become
  circumscribed by . . . constitutional rights of
  users.
• Jackson el. utilitys decision to end service
• Traditionally, exclusively, a govt function?

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As Applied to Elections

• Terry v. Adams local political party held to be
  state action
• Private and public tied together
• The 15th Amendment as a special factor?
• Race as a special factor?

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Private Property for Public Purposes

• Evans v. Newton Macon devise of white-only park
  is state action
• Logan Valley shopping center analogous to
  community
• Lloyd Corp. v. Tanner retreat shopping center
  can prohibit handbills
• Hudgens v. NLRB Logan Valley dead

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Another Exception Public and Private
Entanglements

• State Authorization, Encouragement, and/or
  Facilitation of Private Actors
• Four main subcategories
• Judicial actions
• Regulated entities
• Subsidized entities
• Voter initiatives

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The Entanglement Exception

• Shelley v. Kraemer, 1948
• Lugar, 1982
• Edmonson, 1991
• Burton, 1961
• Moose Lodge, 1972
• Am. Mfrs. Mutual, 1999
• Norwood, 1973
• Rendell-Baker, 1982
• Blum, 1982
• Reitman, 1967

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Judicial Entanglement

• Shelley v. Kraemer restrictive covenants
• No action by state or local legislatures
• The Fourteenth Amendment . . . erects no
  shield against merely private conduct, however
  discriminatory or wrongful ... But here there
  was more . . . judicial enforcement
• Are all judicial decisions state action?

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Other Judicial Entanglement Examples

• New York Times v. Sullivan all state libel
  common law decisions must comply with the First
  Amendment
• Lugar v. Edmondson Oil creditors use of
  attachment subject to due process review
• Edmondson v. Leesville Concrete civil
  defendants peremptory strikes include overt,
  significant assistance of state actors

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Highly Regulated Entities

• Burton v. Wilmington Parking Authority -- lessee
  restaurants discrimination is state action by
  entanglement
• Moose Lodge liquor license to private club not
  state action by entanglement
• Am. Manuf. Ins. Co workers comp insurer
  decisions not state action by entanglement
  (compare Jackson)

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Government-Subsidized Entities

• Norwood v. Harrison free schoolbooks to
  race-discriminating schools amounts to state
  action
• Gilmore v. Montgomery sports facilities to
  race-segregating schools amounts to state action
  by entanglement
• Rendell-Baker v. Kohn firing of teacher at
  publicly funded private school not state action
• Blum patient discharge/transfer decisions at
  publicly funded nursing home not state action

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Voter Initiatives Repudiating Rights

• Reitman v. Mulkey California initiative
  endorsing no COA for housing discrimination held
  state action
• Washington v. Seattle frustrating school
  desegregation is state action
• Crawford v. Bd. of Ed no need to go beyond
  constitution to remedy school seg.
• Romer initiative against gays violates EP

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Entwinement A New Exception?

• See in the supplement the 2001 case, Brentwood
  Academy v. Tennessee Secondary School Athletic
  Association
• Athletic Association regulated competition
  between private and public schools alike, and
  sanctioned Brentwood for recruiting violations
• Held to be state action as entwinement
• Different from entanglement by not requiring
  governmental prodding?

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Next Week Economic Rights