Textbooks: Gerald Gunther & Kathleen Sullivan, CONSTITUTIONAL LAW (13th ed. 1997). Gerald Gunther & Kathleen Sullivan, CONSTITUTIONAL LAW SUPPLEMENT (2000). Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (1997).
Last updated 11-29-00. Start with Part V. III PART V. INDIVIDUAL RIGHTS
BACKGROUND AND PURPOSE OF THE POST-CIVIL WAR AMENDMENTS – 11/01/00 A. Generally: 1. The theme of individual liberty has been underlying all of our discussions about separation of powers and federalism. 2. To understand the substantive due process doctrine, we have to understand its history. B. Pre-Civil Was Situation: 1. 2. 3. 1787 Document – p418 – there were very few references to individual rights in the first Constitution b/c Framers more concerned with national government power. Bill of Rights (1791) – individual rights enter the picture. Barron v. Baltimore (U.S. 1833) – p418: a. Facts: state law allows city to divert water and deposits debris in guy’s harbor; P claims 5A taking of his property by the city. b. Holding: 5A doesn’t apply to the states (no recovery). c. Reasoning: CJ Marshall says Art I § 10 limits states - if Framers wanted to limit the states, they would have done it there. 1) Text: Bill of Rights is meant to protect against federal power – Mag’s suggest this may be weak argument b/c relies too much on Framers’ intent/purpose. 2) Structural argument: Framers knew how to constrain states (see § 9 and § 10). 3) BUT - Marshall is strong nationalist, does it make sense for him not to apply the bill of rights to states? a) He is strong believer in separated powers. b) National government is stronger than the states, therefore it is the one that must be limited. c) ―The powers they (the people who are the authors of the constitution) conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms are naturally and we think necessarily applicable to the government created by the instrument.‖ d. Note: Magarian says Marshall was right at the time Barron was decided - but the Civil War is amendment major disruption - changes everything. e. Note: this is good example of representation reinforcing review. Marhsall Court’s Position: states are not that powerful therefore we do not have to worry about them.
C. Purpose and Impact of Post-Civil War Amendments: 1. Summary: Provision Barron Slaughter-House Cases Slaughter-House Cases Modern Cases 2. Bill of Rights Privileges AND Immunities (Art IV § 2) Privileges OR Immunities (14A) Due Process Clause (14A) What is protected? Enumerated rights Fundamental rights Who is protected against? Federal government States (to extent that states chose to grant them) States States
Limited rights of national citizenship Incorporated and fundamental rights
Amendments: a. 13A: no slavery b. 14A: 1) Privileges OR Immunities: ―No state shall make or enforce any law which shall abridge the privileges OR immunities of citizens of the US.‖ 2) Due process. 3) Equal protection. 4) Citizenship to all born or naturalized here. c. 15A: voting rights. d. Court has made clear that purpose of separated powers is to protect citizens’ ―personal liberty‖ from encroachment by government. e. Pervading purpose of the amendments is freedom of the slave race, the security and the firm establishment of that freedom and the protection of the newly make freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. Slaughter-House Cases (U.S. 1873) – p421: a. Facts: state law creates monopoly and shuts some people out, 1) P’s claim: while P’s claim included arguments under the equal protection clause of 14A, the due process clause of 14A, and the involuntary servitude clause of 13A, case focused on privileges OR immunities clause under 14A. b. Holding: 1) 14A does not apply in this case. 2) Purpose of amendment was to forbid slavery to African Americans—but anyone who can prove slavery can get protection of amendment. c. Reasoning: 1) Justice Miller compares 14th amendment to Art IV §2 (―The citizens of each state shall be entitled to all privileges AND immunities of citizens in the several states‖) 2) Purpose of Art IV § 2: ―to declare to the several states, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction‖ a) Translation: this means whatever rights a state gives its citizens, it must also give to every other citizen within that state’s borders. 3) Purposive analysis of 14A’s privileges OR immunities – purpose was solely to protect former slaves: a) Only protects a narrow class or rights - this is exclusive protection - gives with one hand, takes with the other - says citizens are protected against encroachment of fundamental rights, but only those rights that the state decides to guarantee.
e. f. 4.
14A only protects rights of national citizenship – rights that individual needs to participate in a national government. Dissent (Bradley): 1) ―in my judgment, it was the intention of the people of this country in adopting the 14th amendment to provide national security against violation by the states of the fundamental rights of the citizen.‖ 2) This state law deprives a large class of the right to pursue a legal employment and therefore would violate the privileges or immunities clause. Note: Court’s narrow definition of the amendments’ purpose dramatically limited their reach. Note: this seems to be contradictory to the purpose of 14A which was to limit state’s power.
Aftermath of the Slaughter-House Cases: a. Privileges and Immunities of National Citizenship: the privileges OR immunities clause protects the limited rights of national citizenship against state (Slaughter-House Cases). 1) National citizenship rights: only those rights that individuals need to participate in a national government. 2) This seems incredibly at odds with what 14A intended. 3) Except for the Privileges OR Immunities Clause, all of the other holdings of the Slaughter-House Cases were subsequently overruled. a) B/c Court’s narrow reading of the Privileges OR Immunities clause has never been overruled, it has precluded the use of this provision as a way to apply the Bill of Rights. 4) Twining v. NJ (U.S. 1908) - p430: effort to catalogue national privileges and immunities: a) right to travel form state to state b) petition congress vote for national offices c) enter public lands d) right to be protected against violence while in the lawful custody of a united states Marshall e) right to inform the US authorities of violation of its laws b. Due Process: 1) Many of the dissenter’s arguments in the Slaughter-House cases have found their way into majority opinions today. 2) Distinguished from Privileges OR Immunities: a) Due process & equal protection apply to any person (including corporations). b) Privileges OR immunities: applies to citizens (not corporations).
D. Mag’s Questions: 1. How could CJ Marshall, who had construed state power narrowly in McCulloch, hold in Barron that the Bill of Rights did not constrain state authority? Precisely b/c he viewed state power as so weak, he did not think a Bill of Rights was needed to protect against it – Bill of Rights was only needed b/c national power was so strong. To what extent did the Court in the Slaughter-House Cases limit the reach of the 14A to African Americans’ claims of unequal treatment? Was the Court correct to do so? Are you persuaded by the Court’s analysis in the Slaughter-House Cases of the meaning of the 14A’s ―Privileges or Immunities Clause? Why or why not?
E. Information Sources: 1. See Casebook at 415-431. 2. See Chemerinsky at 372-85.
II. CRIMINAL PROCEDURE AND THE “INCORPORATION” CONTROVERSY
Non-inc (Twining & Frankfurter)
The Incorporation Debate
Three aspects of incorporation debate: Selective 14A Selective inc a. Argue over history and whether Framers intended forinc to apply to states. Total inc (Duncan) (Black) (Palko) b. Argue over federalism. c. Argue over the appropriate judicial role. 14A dramatically altered the constitutional structure – Protection of individual rights huge threat to state power. a. b. Shows conceptual difficulty with interpreting 14A. Shows tension with federalism – 14A threatens state power.
Protection of states’ perogatives (federalism) history: 3. Why are we studying the Judicial subjectivity
Today: in practice, most of the procedural guarantees of the bill of rights have been incorporated into the 14th amendment and the incorporated guarantees apply to the states in precisely the same way that they restrain the national government.
B. Chart: Non-Incorporation (Twining and Justice Frankfurter) Natural law - 14A protects those rights in accord with the ―cannons of decency and fairness central to our notion of justice.‖
Selective Incorporation (Palko)
Selective Incorporation (Duncan)
Total Incorporation (Justice Black)
Definition – principle to see if the right falls under 14A Role of Bill of Rights
14A protects rights that are ―implicit in the concept of ordered liberty.‖ ??? ―fundamental fairness‖ Look to Bill of Rights for guidance on meaning of due process. Court will look at substance of the rights protected in the Bill of Rights and then measure against due process. Sounds good in theory – moderate approach that represents a compromise position. Honors some aspects of federalism but also protects individual rights. Undue burden on the states. Underprotection of individual rights (b/c Court cannot find that 14A includes rights beyond the Bill of
14A protects rights that are ―fundamental to the American scheme of justice.‖
14A is doorway to a NEW Constitution.
14A is limited to rights protected in the Bill of Rights.
Greater uniformity b/w federal and state govts’ protection of individual rights. Not subject to judicial subjectivity b/c textually grounded in Bill of Rights - greater certainty. Much harder on states – violates federalism. May dilute the federal rights in an effort to be fair to states and to not be subjective.
No textual roots (no history or caselaw). Underprotects individual rights. Open to judicial subjectivity.
Same as total inc. Dilution of the Bill of Rights (see Harlan’s dissent).
Rights). Same results as non-inc.
Non-inc may allow expansion of protected rights beyond the Bill of Rights. May also open door to greater protection of individual rights b/c not tied to the text of the constitution.
Although Court says it is following Palko, it really seems to be adopting total inc approach. Signals shift in focus from state prerogatives to individual rights. Questions analytical integrity of selective inc as a doctrine.
Black is an originalist but the textualist v. nontextualist debate gets all turned around here.
C. Cases 1. Non-Incorporation (Twining, Justice Frankfurter): a. b. Twining v. NJ (U.S. 1908) – p434. 1) Established concept of natural rights. Justice Frankfurter’s concurrence in Adamson v. CA (U.S. 1947): 1) Wrong to use first 8 amendments to discern meaning of due process clause of 14th amendment. 2) Denies the court the ability to use its analytic tools to discern the meaning of due process. 3) Can’t derive the meaning of the 14th amendment from the Bill of Rights. 4) Flexible (because it does not look to an established judicial meaning - yet it seems restrictive because under non-incorporation claimants are denied protection in the early years).
Selective Incorporation (Palko): a. Palko v. Connecticut (U.S. 1937) - p435: 1) Facts: D denied trial by jury – this case provides the best know articulation of the selective incorporation doctrine. 2) Holding: state’s action upheld. a) Not all Bill of Rights guarantees are protected by 14A. 3) Reasoning: a) ―The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence.‖ b) Court derives the meaning of due process from the first 8 amendments on a case by case basis (because it looks to the first 8 amendments - it is argued that it is restrictive approach). (1) my problem is that the non-incorporation approach doesn’t look to the first 8 amendments at all, so there is no ―floor‖ guarantee (2) if you look to the first 8 amendments, at least you know that you will have a minimum guarantee of rights. Without that guidance, it seems the federal government is likely to guarantee you fewer rights as against the states—fear that opens you up for abuse by the states
Test: a given provision of the Bill of Rights will apply to states via 14A due process clause if it is essential to a scheme of ordered liberty. a) A principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Adamson v. CA (U.S. 1947) – p436: 1) Facts: state used defendant’s failure to take the stand against him in the trial - defendant claimed a violation of 5th amendment privilege against self-incrimination. 2) Holding: no violation of 5A b/c not all Bill of Rights are protected by 14A. a) This would have been a violation if it had been done by a federal agent. 3) Reasoning: applied Palko. 4) Concur (Frankfurter): see above. 5) Dissent (Black): see below.
Total Incorporation (Justice Black): a. Justice Black’s dissent in Adamson v. CA (U.S. 1947) 1) Full inc was original purpose of 14A. 2) Rejects natural law formula. 3) If right applies against the federal government, then it applies against the states 4) Applied to this case: concluded that the full protection of the 5th amendment proscription against compelled testimony must be afforded to defendant. 5) Need some constraint on excessive judicial discretion – Bill of Rights is textual constraint.
The Modern Approach - Selective Incorporation (Duncan): a. Duncan v. LA (U.S. 1968) - p442: 1) Facts: D claims that state must guarantee jury trial in state cases. 2) Holding: Court agrees, incorporates right. a) Trial by jury in criminal cases is fundamental to the American scheme of justice b/c prevent oppression by the government (fundamental right). 3) Reasoning: a) Selective incorporation prevails—and Palko is leading case. b) Court looks to the facts in the case before it simply to ascertain whether they raise issues of the sort covered by the Bill of Rights; having identified the relevant bill of rights provision, the court pays little further attention to the facts and asks instead whether the particular bill of rights guarantee is essential to fundamental fairness and should be made applicable to the states. c) Limits 4) Dissent (Harlan): a) Question in this case is simple - if due process requires fairness, then the only inquiry necessary is whether the state trial was fair. b) Problem - how do you enforce that? State court will say its own trial was fair. Does that mean the defendant must appeal to a federal court each time to see if the trial was fair? If so, isn’t it easier to just grant the jury trial by right? c) Harlan also concerned that all procedural quirks of right to jury trial will be incorporated. (1) Dilution fear turns out to be true – there is some evidence that Supreme Court has ―lowered‖ standards because it knew that its decision would be applied to the states, too 5) Other: are you more concerned with maximizing rights in the federal sphere (like Harlan) or with maximizing the reach of those rights (making them applicable in more jurisdictions)?
D. Problems with the Modern Approach – Incorporating Bill of Rights guarantees “jot-for-jot”: 1. Dilution of federal rights as escape from the incorporationist straightjacket: a. Williams v. Florida (U.S. 1970) – p450: Court held that 12 man jury is not a necessary ingredient of ―trial by jury.‖ b. Apodaca v. OR (U.S. 1972) – p451: Court held that unanimous jury verdict was not required. c. There has been a sharp divide among the Court as to the extent to which the federal right is applied to the states – both cases above show sharp divides. d. Reasoning for not incorporating jot-for-jot = would deprive states of freedom to experiment. e. Reasoning for incorporating jot-for-jot = potential for dilution of federal rights.
E. Mag’s Questions: 1. 2. 3. What are interpretative and substantive problems with nonincorporation or selective incorporation of Bill of Rights guarantees into the 14A? What are interpretative and substantive problems with total incorporation of Bill of Rights guarantees into the 14A? Has the contemporary Court’s approach to incorporating Bill of Rights guarantees into the 14A (a variation on the selective incorporation approach) succeeded in avoiding the problems raised by the other approaches?
Information Sources: 1. See Casebook at p432-52. 2. See Chemerinsky at p378-85.
III. SUBSTANTIVE DUE PROCESS: ANTECEDENTS AND THE LOCHNER ERA I. Substantive Due Process: Antecedents and the Lochner Era A. General 1. derived from the 14th amendment – it is the court’s willingness to review the substance of state legislation –by striking down legislation that ―takes‖ a person’s ―liberty‖ without due process of law 2. 2 bases for substantive due process: a. natural rights- certain fundamental rights not derived form any constitution or legal system but simply from the nature of things b. laissez-faire economic theory-social Darwinism 3. the decision rests on fairness, not the actual substantive right B. early cases: 1. Munn v. Illinois (p. 458) a. court upholds state law regulating rates of grain elevators- this is similar to traditional price regulation of utilities and monopolies b. police power includes regulation of individual use of property when such regulation becomes necessary for the public good c. reason: relied on English theory- private property may be regulated when it is affected with a public interest and that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large 2. Santa Clara County v. Southern Pac. RR (p. 459) a. court held that corporations were persons within the meaning of the 14th amendment
C. Lochner (p. 460) 1. NY statute limits working hours to 60 hours a week in the baking industry 2. Introduces the balancing test for individual rights- balance government interest with personal liberty a. right violated- individual right to contract (for employee and employer) (i) right to purchase or sell labor (ii) court concludes that right to contract is part of liberty protected by 14th amendment b. government interest(i) NY argues it is protecting public health and safety 3. court strikes down the lawa. sends clear message to NY- the ends are not proper 4. majority pretends to be protecting the rights of the bakers, but the NY law was probably a result of bakers lobbying for protection a. assumes that the bakers have equal bargaining power with their employers 5. interpretive theory: a. non-originalist b. natural rights law- bald assertion that right to contract is a natural right 6. ends / means test of Lochner: a. ends- substantive value choice (i) must be legitimate government purpose (ii) state public health and safety regulation is ok, in theory b. means- nexus- must achieve the end the state says it wants (i) nexus between regulation and purpose (ii) sufficiently tailored means 7. permissible means: a. nexus: direct relation b. sufficiently tailored: fair, reasonable and appropriate 8. impermissible means: a. not sufficiently tailored: unreasonable, unnecessary and arbitrary 9. majority ignores the empirical evidence concerning the health and safety of the workers a. dissent- gives great weight to the health of workers 10. narrow category of businesses that may be regulated in the public interest (common example is utilities) 11. problem with Lochner: judicial review of legislative purpose D. post Lochner decisions 1. Meyer v. Nebraskaa. court reversed conviction of school teacher for teaching in language other than english b. broad definition of liberty that is relevant to the modern court in its ―revival‖ of Lochner in the non-economic area c. liberty: ―denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men‖ 2. Bunting v. Oregon (p. 471) a. overturns the specific holding of Lochner, without mentioning it b. court upheld conviction of employer who did not pay overtime wage as established by statute (that limited work day to 10 hours for male and female factory workers, but also established overtime pay structure)
IV. THE DECLINE OF ECONOMIC SUBSTANTIVE DUE PROCESS
II. The Decline of Economic Substantive Due Process A. Nebbia (p. 474) 1. statute: NY statute establishes milk control board with power to fix minimum and maximum retail prices to be charged by stores to consumers for consumption off premises where sold 2. court upholds the statute as valid exercise of police power 3. reason: a. strong relation between regulation and public health (i) retail price in NY is lower than the farmer’s cost- possible that NY suppliers will go out of business and there will be no milk! Unhealthy! b. effectively denies fundamental right to contract c. standard of review: (i) means selected shall have a real and substantial relation to the object sought to be attained (A) this is a restricted judicial role in scrutinizing means used in economic regulations (ii) absence of discussion of end d. expands class of businesses in public interest e. it is not the court’s place to substitute its policy judgment for that of elected representatives (i) too much discretion to judges to undermine decisions of duly elected public officials (ii) hands off approach- in order to avoid tyrannical judges 4. public interest: a. no closed class or category of businesses affected with a public interest b. affected with a public interest- ―can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good‖ c. under proper occasion and by appropriate measures, the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells 5. due process: a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose a. legislation is improper if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty 6. dormant commerce clause: is there violation? a. no- this statute regulates in and out of state suppliers b. regulates retail prices, not wholesale B. West Coast Hotel (p. 476) 1. court upholds minimum wage law for women 2. freedom of contract not in constitution 3. liberty not absolute- it is necessarily subject to the restraints of due process and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process C. post Nebbia judicial deference to legislative judgment 1. Olsen v. Nebraska a. statute upheld- law fixing maximum employment agency fees b. we are not concerned with the wisdom, need, or appropriateness of the legislation 2. Lincoln Federal Labor Union a. state right to work laws- protect employees right not to enter union b. state have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition or law
Ferguson a. Upholds state law limiting debt adjustment to lawful businesses b. we refuse to sit as a super legislature to weigh the wisdom of legislation D. Williamson v. Lee Optical (p. 481) 1. state law limits who can grind lenses 2. ―it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement‖ 3. court refuses to look at means- ―the day is gone when this court uses the due process clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought‖ E. Carolene Products (p. 478) 1. court rejected a due process challenge to federal prohibition of interstate shipment of filled milk a. congressional findings that filled milk resulted in undernourishment 2. announces rational basis standard of review a. ―the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators‖ 3. footnote 4: a. suggests a narrower scope for operation of the presumption of constitutionality of legislation- in cases when the legislation appears on its face to be within a specific prohibition of the constitution b. ―whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry‖ c. this is dicta d. non-originalist- says if the court looks at the rights of people to participate in the political process, then the court may have a role to play F. Eastern Enterprises (p. 48, supp) 1. court reluctant to invalidate economic legislation under due process scrutiny- BUT this law has retroactive effect 2. court recognizes ―due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity‖ V. OTHER CONSTITUTION SAFEGUARDS OF ECONOMIC RIGHTS: A. Eminent Domain and the “taking-Regulation” Distinction: III. Other Constitutional Safeguards of Economic Rights: Eminent Domain and the Taking Regulation Distinction A. General background 1. rule: while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking 2. government need not compensate the property owner for losses that are incidental consequences of valid regulation; it must compensate when regulation is tantamount to taking B. three categories: 1. per se taking: a. government takes property in order to utilize the land (e.g. taking your land to build a road) b. the government is usually taking the land for a non-injurious use
c. applicable to specific person or persons Zoning regulation a. generally applicable rule- applies to all landowners similarly situated b. bar injurious use (e.g. no adult theaters within certain distance of school) 3. middle grounda. heightened scrutiny for exactions Penn Coal v. Mahon (p. 488) 1. state historically recognizes separate distinct estates in land- above ground and below ground. Passes statute that virtually eliminates all use of below ground estate. 2. Court invalidates the statutea. this would be a taking b. government has police power, but it is limited Miller v. Schoene (p. 490) 1. court upheld state statute calling for destruction of contaminated cedar trees in order to save apple orchards 2. ―When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public‖ Keystone Bituminous (p. 491) 1. court upholds statute similar to the one in Penn coal, but notes that the effect of the statute would be to reduce the value of the estate by 2%--not as severe as the Kohler act other takings cases 1. First English Evangelicala. state required to pay damages for temporary taking 2. Penn Centrala. city may place restrictions on the development of individual historic landmarks without effecting a taking 3. Lorettoa. when government authorizes a permanent physical occupation (even a minor one) of an owner’s property, there is a taking without regard to the public interests that the government action may serve b. physical occupation is per se taking c. no need to do balancing test Nollan1. government conditioned granting of building permit on the owner’s granting of an easement across its property in order to preserve sight lines of the beach 2. holding: exaction not constitutional a. as long as the restrictions substantially advanced the end advanced as the justification for the prohibition b. this case: state wanted to prohibit size of building in order to get an easement?? (i) court found insufficient nexus (ii) getting an easement does not advance the preservation of sight lines 3. stricter means test than Nebbia a. court characterizes the ends as impermissible because it isn’t what the state set out to accomplish Dolan1. exaction- city conditions the grant of building permit on public greenway and bike path 2. 2 prong test: a. is there an essential nexus between legitimate state interest and the permit condition (exaction) b. is there the required degree of connection between the exactions and the projected impact of the proposed development (i) rough proportionality: individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development 2.
court holds exaction not valid a. does not defer to government decision or purported reason for exaction (i) puts burden on government to show its assertions are true (ii) this is significant switch! b. sort of returns to ends testing 4. are Nollan and Dolan restorations of Lochner? No a. these decisions are limited to real property b. economic substantive due process of Lochner prevents government actiontakings merely requires government to compensate E. Lucas (p. 499) 1. two discrete categories of regulatory action that are compensable without case-specific inquiry into the public interest advanced in support of the restraint a. physical invasion b. regulation denies all economically beneficial or productive use of land (i) criticized for lack of precision (ii) do you look at the taking of all of a part? Or part of an all? (iii) 100% is arbitrary because land owner who loses 95% of value can’t recover at all, but land owner that loses 100% of value can recover fully 2. rule: government can deny use only when that use would be prevented by nuisance law a. when the guy bought the property it contained a certain number of bundle of sticks- and the right that the state seeks to limit was not one of the original sticks that the property owner bought F. Phillips v. Washington Legal (p. 49 supp) 1. takings clause applies to property other than real property, including intellectual property 2. lawyers keep client’s money in accounts and transfer the interest to charity 3. court invalidated that law- interest is the property of the clients a. even though the interest will not go to the client, the possession, control and disposition are nonetheless valuable rights that inhere in the property B. The Contracts Clause: IV. Other Constitutional safeguards of Economic Rights: The contracts Clause A. general 1. Art. I, sect. 10- states may make no law impairing the obligation of contracts 2. Purpose: prevent states from canceling debts a. only applies to state action 3. Contracts clause applies to intrastate activity, even without interstate effects a. federal government can step in and tell states what they can do b. argument for broad application (i) critical federal interest (ii) important rights (of creditors not to have contracts erased) 4. retroactivity: ex post facto clauses have long been held to apply only to criminal, not civil legislation B. Home Building and Loan (p. 507) 1. state law passed to give relief to debtors during the great depression- so home owners would not lose houses (extends time to make mortgage payment) 2. court upholds statute 3. reason: a. time of emergency may furnish occasion for exercise of power b. this is temporary effect & conditional (debtor must go to court and seek extension) and vital public interests would otherwise suffer c. private right to contract cannot exist above and beyond the states’ right to legislate for public good
analogy to takings- this law is not directed at one particular party, it is generally applicable to all lenders 4. limit of state power: a. state can’t destroy contract b. this relief can’t outlast the emergency C. United States Trust vs. NJ (p. 510) 1. law impairing a state’s own obligations was entitled to less deference than legislation interfering with private contracts 2. heightened standard of review: a law impairing a state obligation must be reasonable and necessary to serve an important public purpose in order to pass muster under the contracts clause a. this is necessary because the state’s own interest is at stake 3. note: due process works same result on federal legislation- retroactivity barrier greater when the government seeks to modify its own contractual obligations than when it regulates private contracts D. Allied Structural Steel (p. 513) 1. law retroactively modified payment obligations under private pension plans 2. statute unconstitutional a. retroactively severely impaired financial obligation b. not predictable- state intervened in previously unregulated area 3. degree of impairment: a. minimal alteration of contractual obligations- may end the inquiry b. sever impairment- will push the inquiry to a careful examination of the nature and purpose of the state legislation (i) worked a severe and permanent and immediate change – probably not acceptable 4. note: this statute aimed only at those employers who had voluntarily in the past set up retirement plans E. Energy Reserves (p. 514) 1. possible return to greater deference? 2. 3 step inquiry: a. has state law operated as a substantial impairment of a contractual relationship (i) fairly significant showing on part of challenger b. statute has a significant and legitimate public purpose behind the regulation— such as remedying a broad and general social or economic problem (i) state has chance to rebut c. determine whether the adjustment of the rights and responsibilities of contracting parties is based on reasonable conditions and is of a character appropriate to the public purpose justifying legislation’s adoption (i) nexus 3. this is balancing test a. balancing tests often give courts room to find one way or another b. this falls on the Nebbia side of spectrum c. court is hesitant to apply contracts clause to states d. this is permissive test F. Exxon Corp. (p. 515) 1. court rejects contracts clause challenge 2. majority distinguishes between laws specifically directed at contractual obligations and laws that merely have the effect of impairing contractual rights a. this law had an incidental by-product of a generally applicable rule of conduct
VI. THE REVIVAL OF SUBSTANTIVE DUE PROCESS FOR NONECONOMIC RIGHTS: GRISWOLD
VII. SUBSTANTIVE DUE PROCESS AND ABORTION RIGHTS I: ROE V. WADE
SUBSTANTIVE DUE PROCESS AND ABORTION RIGHTS II: PLANNED PARENTHOOD V. CASEY
IX. SUBSTANTIVE DUE PROCESS: FAMILY, SEXUALITY, AND AUTONOMY
X. SUBSTANTIVE DUE PROCESS AND THE RIGHT TO DIE
XI. DUE PROCESS AND THE RIGHT TO A HEARING