14th Amend. and fundamental rights

1
14th Amend. and fundamental rights

• Today we will consider the early evolution of the
  Supreme Courts interpretation of the 14th
  Amendment to recognize fundamental rights
• The Court declined the opportunity to invoke the
  privileges or immunities clause
• After some hesitation, the Court used the due
  process clause to apply most of the Bill of
  Rights to the states
• Ultimately, as we have seen, the Court relied on
  substantive due process as the primary basis for
  fundamental rights/liberties, with the equal
  protection clause also serving a role

2
Implied fundamental rights

• Due Process Clause
• Incorporation of (most of) Bill of Rights
• Substantive due process
• Equal Protection Clause
• Fundamental interests

3
14th Amend. and fundamental rights

• The obvious textual source for fundamental rights
  was the privileges or immunities clause
• No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens of the United States
• Amendment XIV, 1
• But the Supreme Court limited the use of the P or
  I clause in the Slaughter-House cases

4
14th Amendment P or I Clause

• Original intent unclear
• To constitutionalize the rights granted in the
  Civil Rights Act of 1866?
• Would include the right to sue and give evidence,
  the right to make and enforce contracts, the
  right to own and sell real and personal property,
  and the right to full and equal enjoyment of laws
  for the security of person and property (note
  3.c., page 728) (The McDonald Court took this
  view and included the right to bear arms, pages
  S92-S93)
• To apply the Bill of Rights to the states?
• To cover some concept of natural or fundamental
  rights of citizenship?

5
14th Amendment P or I Clause

• Interpretation of the clause was largely settled
  by the Slaughter-House cases
• What were the facts (page 721)?
• The Louisiana legislature granted to the Crescent
  City Live-Stock Landing and Slaughter-House
  Company the exclusive right to engage in the
  business of slaughtering animals within an area
  including the City of New Orleans

6
Slaughter-House Cases

• Why do you suppose the legislature thought it a
  good idea to limit the number of slaughter houses
  in New Orleans?
• One leading casebook observes that the company
  that got the monopoly bribed New Orleans
  officials and state legislators
• Other scholars point out that public health
  considerations were important. At the time the
  statute was passed, 1869, there were real
  problems with communicable diseases coming out of
  slaughterhouses, and it was very difficult to
  control the problem when meat slaughtering was
  taking place in many locations and in residential
  neighborhoods.

7
Slaughter-House Cases

• The Court could have upheld the statute on public
  health grounds
• That is, rather than rejecting the claim of a
  protected right, it could have invoked a
  compelling state interest
• Or the Court could have rejected the particular
  right at stake while preserving the P or I clause
  for other rights
• However, the Court rendered the P or I clause
  inconsequential until Saenz in 1999

8
Slaughter-House Cases

• What about the commerce clause? Could it have
  been invoked to strike down the statute?
• Recall the case involving the Schechter chicken
  slaughtering company in 1935. Did the Louisiana
  case also involve the regulation of
  post-interstate commerce?
• Schechter applied to Congress but not to state
  governments
• What about Clarkstown and the waste disposal
  monopoly?
• The LA statute was regulating post-interstate
  commerce
• In Clarkstown, customers could not patronize
  out-of-state businesses. The LA statute did not
  require customers to buy their meat in New Orleans

9
Slaughter-House Cases

• How did the Court interpret the P or I clause?
• Text compared to other text
• The first sentence of the amendment refers to
  citizenship of the United States and of the state
  of residence (All persons born or naturalized in
  the United States . . . are citizens of the
  United States and of the State wherein they
  reside (overriding Dred Scott))
• The P or I clause only refers to national
  citizenship (No State shall make or enforce any
  law which shall abridge the privileges or
  immunities of citizens of the United States)
• Hence, the P or I clause protects only rights of
  national citizenship

10
Slaughter-House Cases

• What are the rights of national citizenship
  protected by the P or I clause?
• The Court essentially held that they were rights
  that already had been recognized under national
  law, either because they were expressly
  enumerated in the Constitution or because the
  Supreme Court had already recognized them as
  implied in the nature of a national government
  (pages 723-724)
• Hence Fields point in dissent (page 724) that
  the Court read the P or I clause as accomplishing
  nothing since the Supremacy Clause already took
  care of the rights recognized under the
  majoritys view of the clause

11
Slaughter-House Cases

• The Courts reading of the P or I clause is
  problematic also because of its discussion of
  original intent
• First, the Court observed that the one pervading
  purpose of the 14th Amendment was to secure the
  freedom of the slave race (page 721)
• Whats the problem with this argument?
• The text applies to all citizens of the United
  States
• So the Court focused on text to distinguish
  national from state citizenship but ignored text
  and used purpose to further diminish the rights
  granted under the P or I clause

12
Slaughter-House Cases

• The Court also observed that a broader reading of
  the P or I clause would result in too great a
  shift of power from the state governments to the
  federal government and that such a shift of power
  was clearly not envisioned by the framers of the
  14th Amendment or the states that passed it
• That was in fact a big part of the 14th
  Amendment, although one of great contention.
  Fields dissent, page 724, makes this point
• He argued that the P or I clause was supposed to
  do for in-staters what the P I clause of
  Article IV, 2, does for out-of-statersjust as
  the P I clause of Article IV prevents certain
  distinctions between in-staters and
  out-of-staters, the P or I clause was designed to
  prevent the same kinds of distinctions among
  different in-staters.

13
Saenz v. Roe

• This case gave some content to the P or I clause
• Recall from Shapiro v. Thompson (page 803) that
• We have no occasion to ascribe the source of
  the right to travel interstate to a particular
  constitutional provision. It suffices that, as
  Mr. Justice Stewart said for the Court in United
  States v. Guest, 383 U.S. 745, 757758 (1966)
  The constitutional right to travel from one
  State to another . . . occupies a position
  fundamental to the concept of our Federal Union.
  It is a right that has been firmly established
  and repeatedly recognized. . . .
• In Saenz, the Court connected the right to travel
  more closely to constitutional text

14
Saenz v. Roe

• What were the facts (webpage)?
• California had enacted a statute limiting the
  maximum welfare benefits available to newly
  arrived residents.
• A family that resided in the State for less than
  12 months could receive no more than the amount
  it would have received in the State of the
  family's prior residence
• Not as bad as the statute in Shapiro, which
  resulted in a full denial of benefits, but there
  still ws a disfavored treatment of new residents

15
Saenz v. Roe

• Three components of the right to travel
• The right of a citizen of one State to enter and
  to leave another State
• Court declined the opportunity to tie this right
  to particular text
• The right to be treated as a welcome visitor
  rather than an unfriendly alien when temporarily
  present in the second State
• What is the source of this right?
• Privileges and Immunities Clause of Article IV,
  2
• For travelers who become permanent residents of a
  new state, the right to be treated like other
  citizens of that State. 
• Privileges or Immunities Clause of the 14th
  Amendment

16
Saenz v. Roe

• Does Saenz suggest a major revitalization of the
  P or I clause?
• Probably not. Nothing since then
• Also, the Court observed that it was drawing on
  Justice Millers enumeration of rights protected
  by the P or I clause in Slaughter-House
• But note Justice Thomas preference for the P or
  I clause over the due process clause for
  identifying fundamental rights (McDonald, pages
  S97-S98)

17
Implied fundamental rights

• While Slaughter-House sounded the death knell for
  the P or I clause as a source for the recognition
  of fundamental rights, it did not end the
  development of case law recognizing that there
  are fundamental rights implied by the 14th
  Amendment
• The most natural place to find authority for
  fundamental rights was cut off, but the
  sentiments in favor of such rights bubbled up
  through the due process and equal protection
  clauses
• For the due process clause, implied fundamental
  rights were recognized through
• Incorporation of the Bill of Rights
• Substantive due process

18
Incorporation

• While incorporation and substantive due process
  are distinct doctrines, they rely on the same
  principles.
• Incorporated rights are those that are
• Essential to the concept of ordered liberty
  (later, essential to the American scheme of
  justice, Duncan, page 734)
• So rooted in the tradition and conscience of our
  people as to be ranked fundamental
• Palko, page 730

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Incorporation

• Incorporation refers to the question whether the
  due process clause of the 14th A. prohibits
  states from violating the rights guaranteed
  against the national government by the Bill of
  Rights
• Save for the recent 2nd Amendment cases,
  incorporation has largely had historical
  importance
• The Court had to decide which parts of the Bill
  of Rights should be considered incorporated
• Almost all of the Bill of Rights have been
  incorporated (except the 3rd Amendments
  protection against quartering of soldiers the
  5th Amendments grand jury indictment
  requirement the 6th Amendment right to a
  unanimous jury verdict, the 7th Amendment right
  to a jury trial in civil cases and the 8th
  Amendments prohibition on excessive fines) (page
  S90).
• The Court also had to decide whether the rights
  that are incorporated should be applied to the
  states in the same way that they are applied to
  the national government (Yes)

20
Second Amendment

• A well regulated Militia, being necessary to the
  security of a free State prefatory clause,
• the right of the people to keep and bear Arms,
  shall not be infringed operative clause.
• In Heller, the court considered a broad ban on
  the possession of handguns (including possession
  in ones home)

21
Heller on the meaning of the prefatory clause

• Original intentthe framers recognized that the
  way tyrants eliminated the potential for
  resistance was to take away the peoples arms
• Post-ratification commentarylegal scholars
  understood that the Second Amendment conferred a
  broad individual right to keep and bear arms.

22
Heller

• The right of the people refers to all members
  of the political communitynot a subset thereof
  (i.e., not just members of the militia)
• The right of the people to keep and bear Arms,
  shall not be infringed (2nd Amendment)
• Congress shall make no law . . . Abridging . . .
  the right of the people peaceably to assemble,
  and to petition the Government for a redress of
  grievance (1st Amendment)
• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated (4th Amendment)

23
Heller on limits to the Second Amendment right

• nothing in our opinion should be taken to cast
  doubt on
• longstanding prohibitions on the possession of
  firearms by felons and the mentally ill, or
• laws forbidding the carrying of firearms in
  sensitive places such as schools and government
  buildings, or
• laws imposing conditions and qualifications on
  the commercial sale of arms
• the sorts of weapons protected were those in
  common use at the time.
• District of Columbia v. Heller, 554 U.S. 570,
  626-627 (2008)

24
Second Amendment incorporation

• Footnote 23 in Heller
• With respect to Cruikshank's continuing
  validity on incorporation, a question not
  presented by this case, we note that Cruikshank
  also said that the First Amendment did not apply
  against the States and did not engage in the sort
  of Fourteenth Amendment inquiry required by our
  later cases. . . .

25
Second Amendment incorporation

• In McDonald, the Court held that the Second
  Amendment is incorporated against the states
• The case involved gun control ordinances in
  Chicago and Oak Park, IL that were similar to the
  DC law rejected in Heller
• What was the standard the Court applied?
• we must decide whether the right to keep and
  bear arms is fundamental to our scheme of ordered
  liberty, or as we have said in a related context,
  whether this right is deeply rooted in this
  Nations history and tradition (and the Court
  quoted a due process case for the deeply rooted
  principle) (page S91)

26
Second Amendment incorporation

• Why is the right to bear arms fundamental to our
  scheme of ordered liberty and deeply rooted in
  this Nations history and tradition?
• Self-defense is a basic right
• The right to self-defense is most acute in the
  home
• Handguns are the preferred firearm for
  self-defense in the home
• According to the legislative history of the 14th
  Amendment, the drafters of the Amendment viewed
  the right to bear arms as a basic right that
  should be guaranteed the newly-freed slaves

27
Carhart

• Did the statute narrowly enough define the banned
  procedure so that doctors would still be able to
  perform the traditional DE procedure?
• Did Congress need to include an exception to the
  ban in cases for which a womans physician
  believed the banned procedure would be necessary
  to protect the womans health?

28
Carhart

• Changes in abortion doctrine
• The ban on the intact DE/partial birth procedure
  did not serve the states interests in protecting
  the womans health or in preserving fetal life
• Rather the state invoked abstract interests in
  respecting the dignity of human life and
  protecting the reputation of the medical
  community
• The Court employed a level of deference not
  usually seen in heightened scrutiny
• considerations of marginal safety, including
  the balance of risks, are within the legislative
  competence when the regulation is rational and in
  pursuit of legitimate ends (emphasis added)
  (page 892)

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Privileges and Immunities Clause of Art. IV

• The Citizens of each State shall be entitled to
  all Privileges and Immunities of Citizens in the
  several States
• Art. IV, 2, cl. 1