Evolution of Bill of Rights Incorporation: Study of Key Cases | Study notes Law

Con$Law$Outline$–$Professor$Wright$

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Chapter(5:(The(Structure(of(the(Constitution’s(Protection(of(Civil(Rights(and(Civil(

Liberties(

(

(B)(The(Application(of(the(Bill(of(Rights(to(the(States(

((1)(The(Rejection(of(Application(Before(the(Civil(War(

A. Early$in$history,$the$Supreme$Court$ruled$that$Bill$of$Rights$only$applied$to$Fed.$

Barron&v.&Mayor&and&City&Council&of&Baltimore&(1833)(p.447;+491)+S/C+expressly+held+that+

BofR+was+a+restriction+of+federal+actions,+not+state+and+local+conduct;+did+takings+clause+apply+

i. Marshall$found$that$the$constitution$was$meant$to$protect$individuals$from$the$

government$because$of$a$fear$of$a$strong$federal$government$

ii. States$are$free$to$make$their$own$constitution;$otherwise$could$violate$const.$

(2)(A(False(Start:(The(Privileges(or(Immunities(Clause(and(the(Slaughter(Cases(

A. ‘No$state$shall$make$or$enforce$any$law$which$shall$abridge$the$privileges$or$

immunities$of$citizens$of$the$US’$–$14th$amendment;$argument$for$integration$based$

on$this$language$

B. Framer’s(Intent(Debate(

i. Privileges$and$immunities$could$be$said$to$have$been$intended$to$protect$the$

fundamental$rights$of$individuals$from$state$and$local$interference(

ii. Others$say$that$there$is$no$historical$basis$for$believing$the$privileges$or$

immunities$clause$was$meant$to$do$this(

C. Even$without$framer’s$intent,$a$strong$argument$can$be$made$that$the$P/I$clause$

should$be$interpreted$as$applying$the$B/R$to$the$states(

The&Slaughter9House&Cases&(1873)(p.449;+494)+LA+gave+a+monopoly+to+the+livestock+landing+

and+slaughterhouse+businesses;+main+claims+dealt+with+denial+of+due+process,+equal+protection+

and+abridgment+of+privileges+or+immunities+as+citizens+

i. S/C$narrowly(construed$all$of$the$provisions$and$rejected$the$Π’s$challenge$to$

the$legislature’s$grant$of$a$monopoly$

a. 13th$and$14th$amendment$–$only$meant$to$protect$former$slaves$

b. D/P(and(E/P(interpretations(were(later(overruled$

c. Due$process$‘didn’t$have$anything$to$do$with$restraint$of$trade’$

ii. Interpretation(of(privileges/immunities(clause(hasn’t(been(expressly(

overruled(

a. Court$has$held$it$wasn’t$meant$to$protect$individuals$from$state$

government$actions$and$or$to$be$the$basis$for$Fed$to$invalidate$state$laws$

1. Any$other$interpretation$→$floodgates$to$fed.$supremacy$

b. The$court$interpreted$the$clause$in$a$way$that$robbed(it(of(all(meaning$by$

interpreting$privileges/immunities$as$rights$already$protected$by$const.$

iii. Field(Dissent$

a. By$interpreting$the$clause$as$only$protected$past$rights→the$clause$doesn’t$

mean$anything$

D. Revival(of(the(Privileges(and(Immunities(Clause(

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Chapter 5: The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties (B) The Application of the Bill of Rights to the States (1) The Rejection of Application Before the Civil War A. Early in history, the Supreme Court ruled that Bill of Rights only applied to Fed. Barron v. Mayor and City Council of Baltimore (1833)(p.447; 491) S/C expressly held that BofR was a restriction of federal actions, not state and local conduct; did takings clause apply i. Marshall found that the constitution was meant to protect individuals from the government because of a fear of a strong federal government ii. States are free to make their own constitution; otherwise could violate const. (2) A False Start: The Privileges or Immunities Clause and the Slaughter Cases A. ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US’ – 14 th^ amendment; argument for integration based on this language B. Framer’s Intent Debate i. Privileges and immunities could be said to have been intended to protect the fundamental rights of individuals from state and local interference ii. Others say that there is no historical basis for believing the privileges or immunities clause was meant to do this C. Even without framer’s intent, a strong argument can be made that the P/I clause should be interpreted as applying the B/R to the states The Slaughter-‐House Cases (1873)(p.449; 494) LA gave a monopoly to the livestock landing and slaughterhouse businesses; main claims dealt with denial of due process, equal protection and abridgment of privileges or immunities as citizens i. S/C narrowly construed all of the provisions and rejected the Π’s challenge to the legislature’s grant of a monopoly a. 13 th^ and 14 th^ amendment – only meant to protect former slaves b. D/P and E/P interpretations were later overruled c. Due process ‘didn’t have anything to do with restraint of trade’ ii. Interpretation of privileges / immunities clause hasn’t been expressly overruled a. Court has held it wasn’t meant to protect individuals from state government actions and or to be the basis for Fed to invalidate state laws

Any other interpretation → floodgates to fed. supremacy b. The court interpreted the clause in a way that robbed it of all meaning by interpreting privileges/immunities as rights already protected by const. iii. Field Dissent a. By interpreting the clause as only protected past rights→the clause doesn’t mean anything D. Revival of the Privileges and Immunities Clause

Saenz v. Roe (1999)(p.456; 497) Cal. Law limited welfare benefits for new residents in the state to the level of the state they moved from for their year of residence i. Prior decisions established travel as fundamental right ( so far limited to the right to travel, but who knows what else will be included ) ii. Dissent – mostly upset at reviving the P/I clause at this point iii. Thomas’s Dissent – objected to majority’s attribution to the P/I clause that likely was unintended when the 14th^ amendment was ratified a. Would be open to reevaluate P/I clause in a more ‘appropriate case’; but first must really evaluate the meaning (including whether the reexamination would displace portions of E/P and D/P jurisprudence (3) The Incorporation of B/R into the Due Process Clause of the 14th^ Amend. A. Since the B/R couldn’t be incorporated through the P/I clause→incorporation could be done by some of the B/Rs by the Due Process clause of the 14th Chicago, Burlington & Quincy Railroad v. City of Chicago (1897)(p.458; 499) S/C ruled that D/P claus of 14 th^ amenment prevents states from taking property without just compensation; didn’t speak explicitly of 14th^ amend, but this was practical effect B. Express Recognition of the D/P clause of 14th^ Incorporates B/R provisions Twining v. NJ (1908)(p.499; 458) court rejected the Δ ’s claims that a state court had violated their const. rights by instructing jury on negative inference from failure to testify; but found that personal rights safeguarded by first 8 amendments may be safeguarded against state action because denial would be denial of due process i. Test: Can we imagine a ‘fair, just system’ without this protection? ii. This case didn’t reach threshold , but opened the door C. The Debate over Total and Selective Incorporation Palko v. Connecticut (1937)(p.460) is double jeopardy a fundamental right that may not be denied?; Court said it was not an ‘ important/fundamental right ’ i. Court shouldn’t turn into a watchdog → narrow/selective interpretation so the court won’t be inundated; also want to allow state experimentation Adamson v. California (1947)(p.461; 501) whether negative inference is permissible when Δ refuses to testify in criminal trial; court allowed the negative inference bc D/P doesn’t apply ii. Court selectively interpreted by saying due process clause only requires a ‘ fair trial’ and protection of true fundamental rights (protection from torture etc.) D. Total Incorporation i. Historical: both argued that history is on their side (can’t decisively resolve) ii. Federalism: shouldn’t allow federalism as a rational to tolerate violations of fundamental liberties iii. Judicial Role: defenders argue that selective incorporation gives judges too much discretion as to what is fundamental E. Selective Incorporation i. Federalism: desirability to preserve state and local gov’t by freeing them from the application of the B/R; states can advance liberties/rights on their own

iii. 13 th^ amendment: does provide for private action (can’t be or own slaves) B. Public Functions Exception – a private entity must comply with the Constitution if it is performing a task that has been ‘traditionally, exclusively’ done by the gov’t Marsh v. Alabama (1946)(p.474; 520) Jehovah’s witness tired to distribute info in a company town owned by private company; company ran all aspects of the town ; criminally punished the individual i. Running a city is a public function→must be done in compliance with const. ii. Ruling was broad →more an owner opens property for use by public in general, the more his rights become circumscribed by the constitution iii. Balancing Test – case suggests that the determination of state action should weigh the interests of the private property owner and the constitutional rights involved Jackson v. Metropolitan Edison (1974)(p.476; 518) current formulation of the public functions exception ; private utility company didn’t need to provide due process before termination of service because power ≠ traditional prerogative of the state i. Close Nexus Test: State action is in the exercise by a private entity of powers traditionally, exclusively reserved to the states ii. The electric company was privately run for a long time iii. Dissent: fear of privatizing everything and then avoiding constitution violations iv. Other areas that public function exists: public parks v. Malls: first amendment doesn’t apply to privately owned shopping centers ( Hudgens v. National Labor Relations Board ) B. Entanglement Exception – Const. applies if the gov’t affirmatively authorizes, encourages, or facilitates private conduct that violates the const. i. Judicial and Law Enforcement Actions a. Shelley v. Kramer – most broad interpretation; state action = having to use the court system to enforce a contract b. Lougar Two Part Test

The deprivation must be caused by: a. The exercise of some right or privilege created by the state; or b. A rule of conduct imposed by the state; or c. By a person for whom the state is responsible
The party charged with the deprivation must be a person who may fairly said to be a state actor because: a. He is a state official; b. He has acted together with or has obtained significant aid from state officials; or c. His conduct is otherwise chargeable to the state ii. Government Licensing and Regulation of Activities – mere regulation ≠ enough ( Jackson v. Metro – regulation of electricity wasn’t enough) iii. Government Subsidies – highly doubtful const. applies merely by subsidy iv. Voter Initiatives Permitting Discrimination Reitman v. Mulkey (1967)(p.508; 536) S/C found unconst. a voter initiative that repealed open housing laws and prevented enactment of future antidiscrimination laws

a. Court determined the provision would ‘encourage and significantly involve’ the state in private racial discrimination b. On the other hand, could indicate that non -‐ adoption of anti -‐ discrimination implies encouragement Chapter 6: Economic Liberties A. Economic liberties generally refer to constitutional rights concerning the ability to enter and enforce contracts; to pursue trade or profession; and to acquire, possess, and convey property (B) Economic Substantive Due Process (1) Introduction A. Due Process clauses of 5th^ and 14th^ amendment have been interpreted as providing: i. Procedural Due Process – procedures that gov’t must follow when it takes a person’s life, liberty, or property (e.g. what kind of notice/hearing is required) ii. Substantive Due Process – determine whether the gov’t has adequate reason for taking away a person’s life, liberty, or property (e.g. sufficiency of action) B. The S/C initially rejected attempts to use the D/P clause to protect econ rights from gov’t interference in the Slaughter-‐House Cases i. Gov’t argued that D/P only concerned the procedures the gov’t must follow ii. There was no fundamental right to practice a certain trade (3) Substantive Due Process of the Lochner Era Allgeyer v. Louisiana (1897)(p.524; 613) declared unconstitutional a state law that prohibited payments on marine insurance policies issued by out-‐of-‐state companies that were not licensed or approved to do business in the state A. The court determined that the law interfered with freedom of contract→violation of due process clause of 14th^ amend B. First time that court spoke besides out of dicta; actually invalidated a state law Lochner v. NY (1905)(p.526; 614) declared unconstitutional a NY law that set the max hours that bakers could work; violation b/c interfered with freedom of contract and didn’t serve a valid police purpose C. Test: reasonable/fair/necessary use of police power i. Three Principles: a. Freedom of contract is a basic right protected as liberty and property rights b. Government can interfere with freedom of contract only to serve a valid police purpose

Valid purpose – protect public safety, public health, or public morals c. Judicial role to carefully scrutinize legislation interfering w/ freedom of contract

A. The End of Lochnerism West Coast Hotel v. Parrish (1937)(p.541; 623) upheld state law that required a minimum wage for women employees; expressly overruled Adkins v. Children’s and Morehead i. Government wasn’t limited to only regulate public safety, health or morals → aiding those that have unequal bargaining power etc is legitimate interest ii. Shift from individual idea to the society as a whole; strong deference to legisl. US v. Carolene (1938)(p.542; 624) court upheld the ‘filled milk act’ that prohibited vegetable oil as an additive to milk iii. Economic regulations should be upheld so long as they are supported by a conceivable rational basis ( even if not legislature’s actual intent ) iv. Challenger has burden of proof ; only question is whether some facts support it v. FN 4: courts generally presume the laws are constitutional and give great deference to the legislature a. Courts should not give deference (higher scrutiny) when the law:

Interferes with individual rights
Restricts ability of political process to repeal undesirable legislation
Discriminates against a discrete and insular minority B. Economic Substantive Due Process Since 1937 i. Largely dead→regulations receive the rational basis test ( any conceivable purpose is sufficient, law only need to seem a reasonable way of attaining the end; need not be narrowly tailored ) Williamson v. Lee Optical (p.545; 626) upheld OK statute prohibiting an optician to fit or duplicate lenses without a prescription from optometrist/ophthalmologist ii. Same type of test as Carolene; any purpose whatsoever→uphold law C. Punitive damages have been held to be violating due process i. Grossly excessive damages awards violate due process BMW of N. America v. Gore (1996)(p.547; 597) $2 million punitive damage award based on repainting automobiles was grossly excessive ii. Three Part Test to Determine When Punitives are Excessive: a. What is the degree of ‘reprehensibility’ of Δ’s conduct b. What is the ratio of punitive damages to actual harm suffered c. What are the sanctions for comparable misconduct on other state laws iii. Scalia’s Dissent – we gave up substantive d/p→ we should only be looking to procedure; any punitive damage may be brought under this court’s purview State Farm Mutual v. Campbell (2003)(p.551; 598) claim against state farm for bad faith and fraud in refusing to settle a claim ($1 million in compensatory; $145 million punitive) iv. Punitive damages are limited to punishing Δ for that type of conduct in that state (e.g. State Farm couldn’t be punished for fraud etc. outside of the state) a. Must limit damages to what harmed Π v. Reaffirming Three Part Test a. Reprehensibility is the most important consideration (State farm = low) b. There is no bright line ratio that punitive damages can’t exceed
“few awards greater than single-‐digit ratio will satisfy d/p”; courts aren’t sure when a larger ratio is permissible

Court indicated greater amounts would only be justified in particularly egregious acts resulting in only a small amount of economic damages Phillip Morris v. Williams (2007)(p.135 Supp.) suit based on death of smoker and Phillip Morris’s fraud; fraud was to everyone, as opposed to State Farm above with only individuals vi. Court finds that the Constitution forbids punishing Δ for injury that it inflicts upon non parties vii. Dissents : mostly say that we’ve done it before→able to do it now

Evolution of Bill of Rights Incorporation: Study of Key Cases, Study notes of Law

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