14th Amendment (1868):



5th Amendment (1791)

14th Amendment (1868): §1 “… No State shall have or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Applicable to state and local governments.

I. In General. The Constitution protects an individual from govt action which abridges fundamental personal rights.

A. Substantive Due Process Analysis- A court is asked to determine the constitutionality of a law which abridges the rights of a class of persons.

1. Under substantive due process, the Court reviews the substance of legislation to see if it unduly interferes with an individual’s righs or interests that are protected by the Due Process Clauses.

2. 5th amendment. If the federal government acts, the 5th amendment due process clause is the appropriate provision for a plaintiff to use.

3. Function. One function f the Due Process Clause is to limit the substantive power of the states to regulate certain areas of human life. That is, certain types of state limits on human conduct are held to so unreasonably interfere with important human rights that they amount to an unconstitutional denial of “liberty.”

B. Procedural Due Process Analysis – A court is asked to determine the constitutionality of the procedures used when a government deprives an individual of life, liberty or property. (see #4(b) for analysis of this issue)

C. Note. The Due process Clause states “any person” which means this will include aliens and corporations.

II. General Analysis.

A. Identify which government is acting, federal or state.

B. Describe in layperson’s terms the interest that has been abridged.

C. Place the abridged interest in the Constitution ( assert that it is an aspect of liberty under the appropriate due process clause)

D. Ascribe constitutional weight to the interest abridged – is it a low-level liberty interest (relatively unimportant) or a fundamental right (very important)? A right will be deemed fundamental if it is essential to an Anglo-American system of jurisprudence, or implicit in the concept of ordered liberty.

E. Set the appropriate level of scrutiny. Under substantive due process, a law abridging a non-fundamental right receives rational review whereas a law abridging a fundamental right receives strict scrutiny.

F. Balance the abridgment of the individual rights against the proferred government interest.

III. 2 types of Fundamental Rights – Enumerated or Unenumerated.

A. Enumerated rights - provisions of the Bill of Rights which are so important that they are applied against the states as well as against the federal government. The Court has selectively incorporated certain Bill of Rights provisions by declaring them to be aspects of liberty under the Due Process Clause of the 14th Amendment. This is created by the Selective Incorporation Doctrine. They include:

1. 1st Amendment freedoms of speech, press, assembly, petition, free exercise and non-establishment of religion;

2. The 4th Amendment rights to be free from unreasonable search and seizure and to exclude from criminal trials evidence illegally seized;

3. The 5th Amendment rights to be free of compelled self-incrimination and double jeopardy, and the right to just compensation in the event of private property taken for public use;

4. The 6th Amendment rights to counsel, to a speedy and public trial before a jury, to an opportunity to confront opposing witnesses; and to compulsory process for the purpose of obtaining favorable witness; an d

5. The 8th Amendment right to be free of cruel and unusual punishment.

**note: These are normally deemed to be fundamental for purposes of triggering SS under the Equal Protection doctrine.

*** Incorporation Debate - Justice Black said all Bill of Rights are incorporated. Justice Frankfurter said the concept of Due Process embodies concept of ordered liberty. Never resolved. Selective incorporation – those rights that Justices thought were fundamental to American scheme of government. 7th amendment – right to jury is not incorporated.

B. Unenumerated fundamental rights are: unwritten.

1. The right to privacy;

2. The right to interstate travel

3. The right to die

IV. Difference between Substantive Due Process Analysis and Equal Protection Analysis.

A. Substantive Due Process analysis is called for when a legislature passes a mandatory law ( a requirement or a prohibition) which affects all persons within the relevant population. Ex: state law prohibiting abortions to all women.

B. Equal Protection Analysis. A fundamental rights strand of equal protection analysis is called for when the legislature sets up a classification system which deprives only a certain group of persons of a fundamental right. Ex: a poll tax classifies among wealth lines, and deprives poor people of the right to vote.

V. Determination of Fundamental Right.

A. 2 tiered approach. The Court has applies 2 or more different standards of review in substantive due process cases. In the case of economic rights, the Court has required merely that there be a rational relation between the statute and a legitimate state objective. But where the court finds that a “fundamental right” is impaired by a statute, it has applied a scrutiny that is stricter in 2 resepcts:

1. the state’s objective must be “compelling,” not merely “legitimate”; and

2. the relation between that objective and the means (the means-end “fit”) must be very close, so that the means can be said to be “necessary” to achieve the end.

B. Basic Doctrine: Fundamental rights are those which are “implicit in the concept of ordered liberty” and are “deeply rooted in this Nation’s history and tradition.”

C. Sources. To determine what is and what is not a fundamental right.

1. Text. Most of Bill of Rights.

2. History. 1789(5th) framers would have thought were fundamental. 1920s cases cited in Griswald. 1868 – 14th amendment.

a. Fundamental right to marriage. Their concept of marriage was not interracial and it was of different sexes.

b. Fundamentla right to child rearing.

2nd way to create fundamental rights.

3. Purpose. In General, what did framers have in mind when writing bill of rights?

a. Access to Courts – 6th

b. 1st ,3rd ,4th , 5th amendments.

4. Structure

a. Federalism ( right to travel

b. Separation of Powers ( right to vote

5. Practice: Leg/Exec – Procreation; Access to Contraception

6. Precedent

a. Reasoned Elaboration ( Casey “Heart of Liberty”

b. Stare Decisis. ( Roe in part.

7. Social Policy ( Roe p 804.

|Fundamental Rights “Implict in Concept of Ordered Liberty” |

|Literal Text, Specific History: |Extreme Formalist |Most of Bill of Rights |

|A right that framers would have acknowledged | |Marriage: Skinner Case based on Specific History |

|specifically. | |Child Rearing: W/o govt interference. |

|Related Provisions: General History |Moderate Formalist |Access to Courts: 6th Amendment, speedy trial |

|The purpose behind the specific protections are general | |Contraception: 1,3,4,5 – Associational right to privacy|

|concern, like fair trial | | |

|9th supports the Prenumberal Analysis | | |

| | | |

|Structure: Separation of Powers/Federalism |Moderate Formalist |Voting: |

| | |Right to travel: Federalism |

|Practice: |Holmesian |Procreation: Courts do not ban statutes |

|- Legislative/Executive | |Statute to limit contraception |

|Precedents: | | |

|Reasoning from existing precedents | | |

|If right to marry, then right to not get married | | |

|If the right of privacy, “right of the individual | | |

|single or married” | | |

Fundamental Rights

|Yes |No |

|1. Access to Courts- 6th |1. Education |

|2. Voting Rights/Access to Ballot |2. Food |

|3. Right to travel |3. Housing |

|4. Right to Privacy |4. Welfare Generally |

|5. Right to Procreation |5. Health Care |

|6. Right to Marry (Meyer 1923): Basic Civil Right of Man. |6. Out of state tuition |

|Right to Child rearing | |

|Right to Procreate (Skinner) | |

|Right to NOT procreate | |

|Access to contraception | |

VI. Liberty of K.

A. Lochner v. NY. (1905) majority struck down NY law limiting number of hours a bakery employee could work. Due Process includes fundamental right to purchase and sell their labor, their liberty of K. State cannot interfere at all with that right.

1. Health and Safety.

B. Economic Substantive Due Process – criticism. Anti-democratic.

1. Rejected in 1930s.

2. Dead letter now because

a. No fundamental constitutional right to contract.

b. Legislatures can judge this.

3. Rational basis test for economic and social regulation– protection against arbitrariness. Presumed constitutional. If rational basis that will support law, the law is not arbitrary and will be upheld.

4. Summary of modern approach. In summary, the modern Court has withdrawn almost completely from the business of reviewing state legislature economic regulation for substantive due process violations. Not since 1937, has the Court struck down an economic regulation for violating substantive due process, and the present members of the Court all seem in agreement with this withdrawal.

a. Minimum rationality standard. Assuming that the objective pursued by the legislature in an economic regulation falls within the state’s “police power” (now extremely broadly defined to include virtually any heatlh, safety or “general welfare” goal), all that is required is that there be a minimally rational relation between the means chosen and the end being pursued. There is a presumption of constitutionality unless the legislature has acted in an “arbitrary and irrational” way.

b. Social Welfare legislation. The highly deferential “mere rationality” standard of review applies not only in the case of economic regulation but also in the case of “social welfare” legislation, so long as “fundamental rights are not impinged.

VII. Right to Travel. The Court has recognized a fundamental right to interstate travel, protecting different aspects of the right under different provisions of the Constituttion. (triggers strict scrutiny).

A. Shaprio v. Thomas.

1. There is a fundamental right to travel in US Constitution, although not explicit in text. It is an aspect of being a citizen in the US.

2. The Court invalidated, under equal protection, state statutes which denied welfare payments to indigents who had lived in the states less than a year. The classification system set up by theses statutes unduly deterred or punished the fundamental right to interstate travel and was thus invalid as not being narrowly tailored to achieve any compelling government interest.

3. Burden on fundamental right to travel if when moving to a state, are denied of welfare benefits. For this kind of burden, a denial of benefits for one year was a significant undue burden and triggered strict scrutiny.

4. Note: No fundamental right to welfare or healthcare. Govt doesn’t constitutionally have to have a program like this. But if government establishes the program and someone is being burdened because exercising right to travel, will still trigger strict scrutiny because shouldn’t lose otherwise entitled to it because exercising right to travel.

5. Note. If someone wants to move to a state to attend college, they can be burdened in the sense they won’t get same level of help to fund college.

6. States cannot treat old residents differently than new residents.

B. Zobel v. Williams.

1. Illegitimate interests. Even under rational review, it will be invalid if illegitimate interests.

2. Alleged govt interests?

a. Creating a financial incentive for individuals to establish and maintain Alsakan residence – this is not rationally related because trying to encourage people to move in the future, why focusing on the people already there. Court said not rationally related.

b. Assuring the prudent management of the Permanent Fund and the State’s natural and mineral resources.

c. Equal per capita distribution would encourage development of natural resources – even if give more to new residents- all will want moremoney.

C. Saenz v. Roe.

1. Right to travel embraces 3 separate kinds of ideas:

a. The right of a citizen to enter and leave a state. – no constitutional text, being in the US should mean to be freely able to move between borders.

b. The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in a state. The Court based this right in the Privilege and Immunities Clause of Article 4 §2, which removes from the citizens of each State the disabilities of alienage in the other States.

c. The right of the newly arrived citizen to be treated like other residents of the State. This right is protected by the Privileges or Immunities Clause in the 14th Amendment; a ruling which breathed new life into that clause, which had been dormant since the Slaughter House Cases in 1873.

d. Not sure whether this is second order rational review or intermediate scruntiny.

VIII. Right of Privacy.

.

A. Strict Scrutiny - government needs a compelling interest.

B. Right to Marry – comes from the basic civil right of man.

1. Douglas. It predates the constitution. It is a natural right even before having instituted a government. It is a Lockean right that don’t give up to the government. Liberty to choose who you marry. It is so fundamental that any society recognizes. It is a cultural aspect of a Western Democratic society.

2. Formalist judges. Even those judges who rely on text and specific history are willing to say that marriage is a fundamental right, even though there is no text.

C. Right to Procreate – Skinnew v. Oklahoma .

1. In formalist era, there was not a fundamental right to procreate.

2. Reasoned elaboration of precedent. There is a fundamental right to marriage and childrearing –it is a reasoned extension by analogy. If there is a fundamental right at step 1 and step 3, there should be a fundamental right at step 2.

3. Formalist. Static approach. Look at the time of the adoption of the Constitution, should not change meaning over time.

4. Non-formalist approach- concept of a Living Constitution in response to later events. Not limited to views in 1868.

5. Fundamental right triggers SS.

D. Contraception. Griswold v. Connecticut. (1965).

1. Fundamental right to maintain intimacy and privacy in marriage. New unwritten constitutional right of liberty. Protected against legislature interference

2. Strikes statute forbidding use of contraceptives. The majority did not explicitly use the substantive Due Process doctrine. Instead, the opinion found that several of the BOR guarantees protect the privacy interest and create a “penumbra” or “zone” of privacy. The Court concluded that the right of married persons to use contraceptives fell within this penumbra.

a. Penumbral analysis. The Court found, the 4th Amendment’s ban on unreasonable searches has a penumbra, which protects privacy interests, as do the 3rd, 5th, and 9th amendments. Collectively, these amendments establish a zone in which “privacy is protected from governmental intrusion.

b. 9th amendment. States “ [t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Thus, this shows a belief in the framers that fundamental rights exist that are not expressly enumerated in the first 8 Amendments. Suggests that we should not limit ourselves to literal rights.

i. Passed to limit powers of government, not broaden them.

ii. Says certain rights are retained by the people and government cannot limit them or tell them what to do with those rights.

c. Precedent analysis. Decision about procreation also includes decision not to procreate.

d. Leg./Exec. Practice analysis. This statute is far out. The fact that most states did not criminalize possession of contraception be criminal, thus it is infringing on liberty and so it is against the traditions and thus against the fundamental rights.

E. Abortion – Roe v. Wade

1. Right of privacy – has been extended to abortion context. Roe v. Wade recognized the right of privacy limits a legislature’s freedom to proscribe or regulate abortion. [note- cut back in Casey, see infra]

2. Holding – A women’s right to privacy is a “fundamental” right under the 14th amendment. Therefore, the legislature has only a limited right to regulate –and may not completely proscribe—abortions. The actual result of the case was to invalidate, on privacy grounds, Texas’ nearly-complete ban on abortions.

a. First trimester. During the 1st trimester, a state may not ban, or even closely regulate, abortions. Rationale: The mortality rate for mothers having abortions during the first trimester is lower than the rate for full term pregnancies. Therefore, the state has no valid interest in protecting the mother’s health by banning or closely regulating abortions during this period.

b. Second trimester. Durring the second trimerster, the state may protect its interests in the mother’s health, by regulating the abortion procedure in ways that are “reasonably related” to her health.

c. Third trimester. Here, the fetus becomes viable- capable of meaningful life outside the mother’s womb. Therefore, after viability the state has a compelling interest in protecting the fetus. However, abortion must be permitted where it is necessary to preserve the life or health of the mother.

i. Conflict between mother/viable fetus- mother comes first and will prevail over fetus.

3. Analysis:

a. Literal Text/Specific History: None.

i. Specific history - The framers were not living in societies restricting abortions, but were in society that abortions were available. By 1868, most states had significant restrictions on abortions.

b. Related Previsions/Purpose:

i. General History. Look at Colonial times, 1868, 14th amendment. There is not a large history of restrictive abortions. In 1787, most individuals lived in states that they could have gotten abortions.

ii. Associational Privacy concept: There is also access to abortion to support abortion rights.

c. Legislative/Executive Practice: 3 reasons

i. Discourage illicit sex: regulate abortion to discourage illicit sex. This is not important anymore.

ii. Women’s health

iii. Protecting potential life.

Since 1868m looks like the states did not treat this like a fundamental right.

d. Precedent. 1923 marriage, right to procreate, not to procreate. Reasoned elaboration of precedent.

e. Social Policy. Psychological harm; distress unwanted child; continued stigma of unwed mother.

F. Abortion - Planned Parenthood v. Casey. – partially overruled Roe v. Wade

a. Essence of RvW is maintained. There is some fundamental right for a women to choose abortion, but some slightly greater regulation would be enforced.

b. Throw over of the trimester framework. Would focus on viability as a dividing line. Prior to viability, a state may not impose undue burden- any state regulation that had purpose or effect of putting substantial obstable in front of women seeking an abortion.

c. Undue burden in pre-viability period. It would uphold 24 hour waiting period. Required test to determine if test . Physicans must give truthful abortion info and alternative information. It would be undue burden if required married women to get consent of husband.

d. Minors. States an require parental notification. May require parental consent. As long as have judicial by-pass.

e. Result of Casey. The states may restrict abortion so long as they do not place “undue burdens” on the woman’s right to choose.”

f. Analysis.

i. Due Process: Is this implicit in concept of ordered liberty? Still the same.

ii. Say it is an aspect of liberty, then decide that it is a fundamental aspect of liberty.

Fundamental right analysis:

iii. Text/Specific History. Bill of Rights do not limit the fundamental rights and cite the 9th amendment- you have more than the first 8 amendments.

iv. Precedent:

▪ Reasoned elaboration: reasoned elaboration of the law. Recognized the other rights in individual sin procreation and non-procreation and look to the general rule. Take the prior precedents and apply it to this case.

▪ Heart of liberty: “Heart of liberty is the right to define one’s own concept of existence of meaning of the universe and the mystery of human life. Protected by 14th amendment. Central at the heart of the associational privacy emerges from precedents and you age this…

v.

g. The “undue burden standard” – now the controlling standard in abortion regulation cases.

i. Substantial or undue burden on abortion rights trigger strict scrutiny. “Only where state regulation imposes an undue burden on a woman’s ability to make [the decision whether to abort]does the power of the State reachinto the heart of liberty protected by the Due Process Clause.” A state regulation will constitute an “undue burden” if the regulation “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Under this standard, if state regulations merely “create a structural mechanism” by which the state may “express profound respect for the life of the unborn child,” and do not place a substantial obstancle in the woman’s path, the regulations will be upheld. Similary, the state may regulate to further the health or safety of the woman, as long as the regulation does not unduly burden the right to abortion. After viability, the state may proscribe all abortions are not needed to protect the health or life of the mother.

ii. Minimal burden on abortion rights trigger rational review.

|Substantial Burden |Minimal Burden |

|Spousal notification provision |Reporting requirements – did any women have health problems, keep |

|might create tense dynamic if child not wanted |records |

|other man’s child |24 hour waiting period – in big cities. In N.Dakota, only 1 city has|

| |clinic. Could argue that this is more than a minimal burden. Courts |

| |however say that it is rational review. |

| |Parental notification – minors notify parents or get their consent. |

| |-Should have judicial by-pass –minor goes to court to explain why |

| |don’t want to tell parents. |

|Overturning of Precedent must be based on either (1) case was decided wrong or (2) special reason. |

|Unworkable in practice. Difficulty with application of doctrine. |

|Is precedent inconsistent or incoherent/obsolete? |

|Changed understanding of facts? |

|Substantially wrong/unjust. |

|Undermines rule of law. |

G. Consensual Sexual Activity. Barris v. Hardwick. No fundamental right for adults to engage in sodomy. Homosexuality is not a fundamental right. Won’t be judged by SS. Judged under rational basis test.

a. Not implied in the concept of ordered liberty or deeply rooted in this nation’s history and tradition [interest must also be clearly defined.] Interest in homosexuality does not further family, children, marriage or procreation.

b. Text/Specific History. For specific history, look at 1868

c. Related Provision/Purpose. In the purpose of the bill of rights and general intent, the Court looked up associational rights to privacy, to say there is a right to access of contraception. In Griswals, combined association of privacy and reproduction right and reasoned elaboration that gave right to contraception. Roe had association of privacy + reproductive right + social policy. Casey has association + reproductive right + precedent of Roe. Bowers does not have all 3. May have association of privacy , but don’t have precedent or reproductive right.

d. Leg/Exec Practice.

e. Precedent. The cases recognizing a right of privacy for matters of family, marriage, or procreation did not bear “any resemblance” to the right of homosexuals to practice sodomy.

Note: If this was a heterosexual and homosexual sodomy law—could say it is choices by heterosexual couples to prevent pregnancy. So, there should be a right to engage in sodomy. Connection to reproductive and non-reproductive decisions.

Today: This case may be more difficualt for Supreme Courts. By 2001, States having sodomy laws are down to 10. Strong trend of legislative backing away thinking it is not an appropriate area to regulate.

1) May be exec/leg practice, so won’t prosecute, will let people do what they want in their homes.

2) Heart of liberty language – decisions of meaning of life.

3) Association of privacy.

However, there is the problem of Bower as precedent. Must have a special reason to overturn Bower as precedent ( to get the 2 out of 3 Souter, Kennedy, O’Connor vote).

1. No fundamental right to commit fornication and adultery. Courts probably may ban extreme deviant sexual behavior.

a. Adultery. It is highly unlikely that the Court will recognize a substantive due process right to engage in adultery.

i. Comparison with homosexuality. It could be argued that the case for a “right to commit adultery” is stronger than that for a “right to commit homosexuality,” since our traditions and majority culture probably view the former as being less repugnanat ( and certainly more frequently practiced). This is not an argument that the majority is always right, but simply an argument that in determining what constitutes a “fundamental right,” the degree to which the interest being asserted is a “traditional” one may be considered.

b. Fornication. Nor is there at present any constitutionally-recognized privacy interest in committing fornication, so that state bans on premarital sex remain valid. Apart from the situations where the extreme youth of one or both parties is at issue, the case in favor of anti-fornication laws seems somewhat weaker than that in favor of anti-adultery laws. In the former situation, no clear interest in protecting existing families is present. However, the state does have an interest, probably a somewhat weaker one, in encouraging the formation of new, legally-recognized family unites.

H. The Right to Die.

• A competent adult has a 14th Amendment “liberty” interest in not being forced to undergo unwanted medical procedures, including artificial life-sustaining measures.

• The state has an important countervailing interest in preserving life. At the very lease, this interest entitles the state to require, before it allows “pulling the plug,” “clear and convincing evidence” that a now-incompetent patient would have voluntarily declined the life-sustaining measures.

• Terminally-ill patients do not have a general liberty interst in “committing suicide.” Nor do they have the right to recruit a 3rd person to help them commit suicide.

1. Liberty interest in Refusing Unwanted Medical Treatment. Cruzan v. Director, Missouri Dept of Health.

a. Under current doctrine, there is probably a fundamental interest in not being unnecessarily confined for medical treatment or receiving medical treatment against one’s wishes.

b. The Court does not provide a clear standard in Cruzan. A majority of the Court found that there was a liberty interest in refusing unwanted medical treatment, but only 4 Justices deemed the interest fundamental.

2. No fundamental right to Physician-Assisted Suicide. Washington v. Glucksberg.

a. The court held that there is no general constitutional right to physician-assisted suicide, though 5 members of the Court suggested a narrow right for terminally ill patients to receive pain-killing medication that might indirectly increase the chances of death might be a constitutional right they would be willing to consider in a later case.

b. 49 out of 50 States render Physician aided suicide illegal.

I. No Constitutional Right to:

1. equal education

2. medical funding

3. housing

4. clothing

5. food

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