Last updated 12-02-00 Start with IX. PART V. INDIVIDUAL RIGHTS (CONT.)
SUBSTANTIVE DUE PROCESS: ANTECEDENTS AND THE LOCHNER ERA – 11/10/00 A. Mag’s Questions: 1. 2. Was the result in Lochner a necessary or logical progression from the arguments of the dissenters in the Slaughterhouse Cases? What socio-economic assumptions were necessary to the Lochner decision? Are those assumptions rooted in the Constitution? Are they contrary to the Constitution? Should judges ever rely on any socioeconomic assumptions in deciding constitutional questions? Does the Court have any permissible basis for finding “fundamental rights”? Does the Court have nay way to minimize the possibility of subjective judicial lawmaking when it finds fundamental rights?
B. Generally: 1. 2. Substantive due process has strong potential for judicial subjectivity. Nature of what constitutes a fundamental right has changed dramatically over time. a. Initially courts used substantive due process to assert and protect “conservative” values. b. Then courts used substantive due process to assert and protect “liberal” values. Interplay with discussion about proper scope of judicial review: a. If you hate substantive due process, you probably hate judicial review (want to narrow it). b. If you love substantive due process, you like broad judicial review. Economic substantive due process as doctrine to challenge state economic regulations: a. Doctrines you can use to challenge state economic regulations: 1) DCC 2) Priv & Imm Clause 3) Economic substantive due process. Parallel to how Court was treating federal economic regulations at this time.
C. Background Caselaw: 1. 2. Calder v. Bull (U.S. 1798) – p455: Munn v. Illinois (U.S. 1877) – p458: a. Holding: Court upholds state law regulating rates of grain elevators - this is similar to traditional price regulation of utilities and monopolies. 1) Police power includes regulation of individual use of property when such regulation becomes necessary for the public good. b. Reasoning:
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.
3. 4. 5.
Mugler v. Kansas (U.S. 1887) – p459: Santa Clara County v. Southern Pac. RR (U.S. 1886) - p459: Court held that corporations were persons within the meaning of the 14th amendment. Allgeyer v. Louisiana (U.S. 1897) – p460:
D. Lochner v. NY (U.S. 1905) (Peckham) – p460: 1. 2. 3. Facts: NY statute limits working hours to 60 hours a week in the baking industry. Holding: Court strikes down state statute as violation of fundamental right to contract. Reasoning: a. Premise: assumes that the bakers have equal bargaining power with their employers. 1) This premise – based upon a substantive value judgement - has huge policy implications (as pointed out by Justice Harlan in his dissent). b. c. Expansive reading of “liberty”. Balancing test for individual rights - balance government interest with personal liberty: 1) Is this a permissible (appropriate and legitimate) end? a) If no, then end of inquiry. b) Court made substantive policy choice in favor of laissez fair economics. c) Seems deferential. d) Examples: (1) Cannot interfere with right to contract. If end is permissible, then are means directly related to the achievement of that end? a) Not deferential - strict scrutiny. b) Balance individual right with government interest. c) Examples of permissible means: (1) Sufficiently tailored: fair, reasonable and appropriate. d) Examples of impermissible means: (1) Not sufficiently tailored: unreasonable, unnecessary and arbitrary. Application: a) Labor regulation is not valid end but public safety might be. b) Means are not sufficiently relate here. Variations of this test will be our focus for the rest of the year.
3) 4) d.
Three themes: 1) Freedom of K was a right protected by the due process clauses of 5A and 14A. 2) Govt can interfere with freedom of K only to serve a valid police purpose of protecting public health, public safety, public morals. 3) Judiciary would carefully scrutinize legislation to ensure means and ends were valid.
Dissent (Harlan): need for judicial deference to state legislative choices. Dissent (Holmes): Constitution is not intended to embody a particular economic theory.
Note on how NY statute developed: Majority pretends to be protecting the rights of the bakers, but the NY law was probably a result of bakers lobbying for protection. Criticisms of Lochner: a. Undesirable b/c it endorsed a particular economic theory and favored certain groups over others. b. Inconsistency among decisions of the era. c. Potential for judicial subjectivity and activism: unelected judiciary is substituting its judgment for those of popularly elected legislature. d. Allows for judicial review of legislative purpose – Court is constitutionalizing labor arguments. Interpretation Note: a. Originalist: do not like substantive due process. b. Non-originalist: like substantive due process.
E. Lochner and 14A: 1. 2. Liberty and economic rights. Liberty and non-economic rights. a. Meyer v. NE (1923) – p467. 1) Holding: court reversed conviction of school teacher for teaching in language other than English. 2) Reasoning: a) Broad definition of liberty that is relevant to the modern court in its “revival” of Lochner in the non-economic area. b) 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” Property and due process.
Judicial Scrutiny of Economic Regulations During the Lochner Era 1. Maximum Hours. a. Bunting v. Oregon (U.S. 1917) - p471: 1) Holding: overturns the specific holding of Lochner, without mentioning it - 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). Yellow Dog Contracts. Minimum wages. Price Regulations. Restrictions on business entry and other economic regulations.
2. 3. 4. 5.
G. Information Sources:
See Casebook at 453-474. See Chemerinsky at 474-486.
III. THE DECLINE OF SUBSTANTIVE DUE PROCESS 11/13/00: A. Mag’s Question: 1. 2. In what particular ways did the Court in Nebbia critique and reject the assumptions and conclusions of Lochner? What problems does reviewing “fit” b/w legislative means and permissible ends present for the Court? Is the Court justified in not aggressively reviewing legislative means for compliance with substantive due process principles? How do personal rights, such as the right to travel and the right to use contraception, differ from the right to contract freely? Do the two sorts of rights differ in any way that justifies courts’ protection of personal rights but not economic rights under the doctrine of substantive due process?
B. Generally: 1. New rule: economic regulations will be upheld when challenged under the due process clause as long as they are rationally related to serve a legitimate government purpose. 2. Since 1937, not one law has been declared unconstitutional by the S Ct as violating economic substantive due process: a. Is this appropriate judicial deference to legislative choices in regulating the economy or is it judicial abdication of an important role in protecting economic liberties? C. Changes from Lochner to Nebbia: 1. Summary Chart: Key Changes from Lochner to Nebbia Lochner
Nebbia No, courts should defer to legislative policy choices (especially since judges are unelected). Court may be painting itself into a corner (see FN#4 for how to get out). Yes, but these rights are NOT absolute (b/c people can harm each other if there is no regulation of these rights). Substantive value choice: Court favors state regulation (interesting that Court is making a substantive value choice even while trying to get away from making value judgments by deferring to the legislature).
Should courts question legislative policy changes?
Yes, courts can look to legislative policy/purpose.
Yes, these are fundament rights. Substantive value choice: Court favors laissez-faire economics (based on substantive value judgment by Court in Lochner).
Does the 14A protect “fundamental rights” to contract and property?
Yes, “affected” is limited principle.
Court reject Lochner distinction. Circular argument but indicates that ALL businesses are subject to regulation. Leaning towards very liberal means analysis??? Ends: cannot be unreasonable, arbitrary or capricious. Means: real and substantial relation (very low level scrutiny – prevents against court as super-legislature and judicial competence).
May states regulate only those businesses “affected with the public interest”? May a state protect public health through economic rights?
??? Ends: legitimate. Means: direct relation (strict scrutiny).
What is the proper standard of means-ends review for substantive due process?
D. Nebbia v. NY (U.S. 1934) (Roberts) – p474: 1. 2. 3. Facts: 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. Holding: court upholds the statute as valid exercise of police power. Reasoning: a.
Strong relation between regulation and public health:
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!
Court is questioning the basic premise upon which Lochner was based - effectively denies fundamental right to contract. Change standard of review for means: 1) Means selected shall have a real and substantial relation to the object sought to be attained. 2) this is a restricted judicial role in scrutinizing means used in economic regulations Expands class of businesses in public interest. Restricted role for Court: 1) It is not the court’s place to substitute its policy judgment for that of elected representatives. 2) Too much discretion to judges to undermine decisions of duly elected public officials. 3) Hands off approach avoids tyrannical judges.
Impact of Depression: depression may reflect Court’s change. Problem with Nebbia holding: a. Court is setting itself up for a challenge - painting itself into a box. b. Court has a DUTY to protect individual rights. c. Court is promoting idea that it should defer to state legislature and not second guess its policy choices. d. See Carolene Products FN#4 for how to get out of the box.
Note on the DCC: a. Is there a DCC violation? No, this statute regulates in and out of state suppliers, and it regulates retail prices, not wholesale.
E. Other Cases: 1. West Coast Hotel Co. v. Parrish (U.S. 1937) - p476: a. Holding: Court upholds minimum wage law for women. b. Reasoning: 1) Freedom of contract not in constitution. 2) 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. Post-Nebbia judicial deference to legislative judgment – total withdrawal from review abdication: a. Olsen v. Nebraska (U.S. 1941) – p480. 1) Holding: statute upheld - law fixing maximum employment agency fees. 2) Reasoning: we are not concerned with the wisdom, need, or appropriateness of the legislation. Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (U.S. 1949) – p480: 1) Holding: Court upheld state right to work laws (protect employees right not to enter union). 2) Reasoning: 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 v. Skrupa (U.S. 1963) – p480: 1) Holding: Court upholds state law limiting debt adjustment to lawful businesses. 2) Reasoning: we refuse to sit as a super legislature to weigh the wisdom of legislation.
Williamson v. Lee Optical (U.S. 1955) (Douglas) - p481: a. Facts: state law limits who can grind lenses. b. Holding: Court upheld state law as valid. c. Reasoning: 1) Court stressed need for deference to legislature: “it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.” 2) Court refuses to look strictly 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.” Eastern Enterprises (U.S. 1998) - p48supp: a. Holding: Court reluctant to invalidate economic legislation under due process scrutiny- BUT this law has retroactive effect. b. Reasoning: Court recognizes “due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity.”
Impact of US v. Carolene Products Co. (U.S. 1938) (Stone) – p478: 1. Holding: Court upheld federal statute rejected a due process challenge to federal prohibition of interstate shipment of filled milk.
Reasoning: announces rational basis standard of review - economic regulations should be upheld as long as they are supported by a conceivable rational basis. FN#4 – Double Standard: a. Loose scrutiny: generally Court will defer to government and uphold laws so long as rational. b. Stricter scrutiny: Court’s would not be as deferential when: 1) Law interferes with fundamental individual rights, or 2) Law restricts the ability of the political process to repeal undesirable legislation, or 3) Law discriminates against a discrete and insular minority. c. This is dicta. d. Good opinion writing trick: Court uses reasoning from Nebbia (about proper avenue being the political process in most cases) to create an exception for judicial involvement when the political process break down.
G. Status Update: 1. Economic substantive due process is dead after Nebbia. 2. Non-economic substantive due process is on the rise after Carolene Products. H. Information Sources: 1. 2. 3. See Casebook at 474-486. See Supp at 57. See Chemerinsky at 487-494.
IV. OTHER CONSTITUTIONAL SAFEGUARDS OF ECONOMIC RIGHTS: EMINENT DOMAIN AND THE “TAKING-REGULATION” DOCTRINE – 11/15/00: A. Mag’s Questions: 1. What are similarities and differences b/w striking down a state regulation as a violation of economic substantive due process and requiring a state to compensate regulated parties for the costs of the regulation? What are the factors that distinguish a per se regulatory taking from a regulation in which the Court applies a balancing test to determine whether the government must compensate the regulated entity? How did the balancing tests the Court applied in the Nollan and Dolan cases differ from or resemble the balancing test it applied in Nebbia?
B. Generally: 1. Text: “nor shall private property be taken for public use, without just compensation” [5A]. 2. Add this to list of ways individual can challenge a state economic regulation: a. DCC b. Priv & Imm c. Federal preemption. d. Economic sub due process e. 5A takings clause. f. K clause. 3. Back to Lochner - is Court using takings Clause to go back to Lochner? No – see note in Dolan case.
C. Background Caselaw: 1. Penn Coal Co. v. Mahon (US 1922) (Holmes) - p487: a. Facts: passes statute that virtually eliminates all use of below ground estate. b. Holding: statute invalid. c. Reasoning: 1) State historically recognizes separate distinct estates in land - above ground and below ground. 2) This would be a taking - government has police power, but it is limited. Miller v. Schoene (US 1928) - p490: a. Holding: Court upheld state statute calling for destruction of contaminated cedar trees in order to save apple orchards. b. Reasoning: “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 (US 1987) - p491: a. Holding: 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. Zoning and Other Regulations of the Environment – Goldblatt v. Hempstead (US 1962) p492. Remedies for Regulatory Takings: Damage Actions for Inverse Condemnation: a. First English Evangelical (US 1987) – p492: Court held that state was required to pay damages for temporary taking. Historic Landmarks Protection and the “Taking-Regulation” Distinction: a. Penn Central (US 1978) – p492: Court held that city may place restrictions on the development of individual historic landmarks without effecting a taking.
D. Three Categories: 1. Summary Chart Zoning Regulations No compensation Regulatory Takings Heighten scrutiny balancing test (compensation may be required) Nollan Dolan Per Se Taking (appropriation of land) Compensation is REQUIRED Loretto Lucas -Government takes property in order to utilize the land (e.g. taking your land to build a road). -Government is usually taking the land for a non-injurious use. -Applicable to specific person or persons
-Generally applicable rule- applies to all landowners similarly situated. -Bars injurious use (e.g. no adult theaters within certain distance of school).
Principles that Distinguish Zoning Regulation from a Per Se Taking: a. Scope of application of state action (on individual or broad application). b. Nature of use that is barred.
1) 2) 3) 3.
Regulation of non-injurious use – per se taking. Regulation of injurious or noxious use – zoning regulation. If there is reciprocity of advantage – zoning regulation.
Regulatory Takings: a. 2 approaches to resolving: 1) Characterization – Court will characterize the govt action as a per se taking: a) Loretto v. Teleprompter Manhattan CATV Corp (U.S. 1982) – p494: (1) Facts: NY law requires landlords to let cable company to install cable on their land. (2) Holding: this is compensable taking. (a) Establishes a per se rule rather than balancing for “permanent physical occupations” (b) No need to do balancing test. (3) Note: way courts characterize the regulation will vary a great deal and will depend on how the Court sets up the analysis. b) Lucas v. SC Coastal Council (US 1992) (Scalia) – p499: (1) Facts: anti-erosion statute and landowner who wants to build. (2) Holding: this is compensable taking. (a) Strikes down Council’s decision. (b) Rule: where a regulation denies landowner all economically beneficial or productive use of land, it will be considered a per se taking and will be compensable (thus, no balancing). (c) Caveat: govt can deprive landowner of all economically beneficial use of land only when the use landowner is proposing was NOT part of the original bundle of rights to begin with (based on C/L nuisance principles). (3) Reasoning: (a) ??? Rationale: expectancy - 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. (b) There are two discrete categories of regulatory action that are compensable without case-specific inquiry into the public interest advanced in support of the restraint: i. Physical invasion. ii. Regulation denies all economically beneficial or productive use of land. (4) Criticism: (a) Criticized for lack of precision - do you look at the taking of all of a part? Or part of an all? (b) 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. Balancing Test – established in Nollan and Dolan – two part test: a) Two-part test (1) Essential nexus: there must be an essential nexus b/w legitimate government interest and the condition/exaction that the govt is placing on the landowner. (2) Rough proportionality: state must make an individualized determination that regulation or condition is related, both in nature and extent, to the impact of the proposed development. b) Comparatively: (1) Like balancing tests under DCC, Priv & Imm Clause, Nebbia. (2) Stricter than Lochner. c) Nollan v. CA Coastal Comm (US 1987) (Scalia) – p495:
(1) Facts: 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. (3) Reasoning: (a) As long as the restriction substantially advances the end, there is justification for the prohibition. (b) Ends: maintain sight lines - Court characterizes the ends as impermissible because it isn’t what the state set out to accomplish. (c) Means: state wanted to prohibit size of building in order to get an easement - Court found insufficient nexus b/c getting an easement does not advance the preservation of sight lines. (4) Note: STRICTER means test than Nebbia. d) Dolan v. City of Tigard (US 1994) (CJ Rehnquist) – p496: (1) Facts: city conditions the grant of building permit on public greenway and bike path. (2) Holding: exaction is unconstitutional. (3) Reasoning: (a) Establishes 2 prong test. (b) Does not defer to government decision or purported reason for exaction. (c) Puts burden on government to show its assertions are true - this is significant switch! (4) Note: returns to ends testing? (5) *** Note: 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 action - takings merely requires government to compensate.
E. Regulatory Taking Through the Imposition of Liability – Eastern Enterprises v. Apfel (US 1998) – p58supp. F. Takings of Intangible Property - Phillips v. Washington Legal (US 1998) - p49 supp: 1. Facts: law allowed lawyers to keep client’s money in accounts and transfer the interest to charity. 2. Holding: Court invalidated that law - interest is the property of the clients - takings clause applies to property other than real property, including intellectual property. 3. Reasoning: even though the interest will not go to the client, the possession, control and disposition are nonetheless valuable rights that inhere in the property.
G. Public Use: 5A bars takings unless for public use. H. Information Sources: 1. See Casebook at 486-505. 2. See Supp at 58-59. 3. See Chemerinsky at 504-524.
V. OTHER CONSTITUTIONAL SAFEGUARDS OF ECONOMIC RIGHTS: THE CONTRACTS CLAUSE – 11/17/00: A. Mag’s Questions:
Does the K Clause bar state interference even with Ks that have no significance outside the state? Should the reach of the K Clause extend so far? Can the principle that states may not interfere with K obligations be reconciled with the principle that states have power to regulate in the public interest? Has the S CT effectively reconciled these two principles? How potent is the K Clause as a ground for opposing state economic regulation, as opposed to the other possible grounds: DCC, Priv & Imm, federal preemption, substantive due process, Takings Clause?
B. Generally: 1. Text: “no state shall . . . pass any . . . law impairing the obligation of contracts . . .” a. Very broad language – if take the language literally, then there is no room for state economic regulation at all. b. Purpose: prevent states from canceling debts, important rights (of creditors not to have contracts erased). Application: a. Initially, K Clause was major restraint on state economic regulation – no longer. b. Limit: K Clause ONLY applies to state laws that interfere with existing Ks. 1) Contracts clause applies to intrastate activity, even without interstate effects. 2) K Clause does NOT apply to federal government – challenges to federal interference with Ks must be brought under due process clause. 3) State governments can limit the terms of FUTURE Ks. c. Potential for broad application given broad language. d. ??? Retroactivity: ex post facto clauses have long been held to apply only to criminal, not civil legislation. Cases in this area reflects theme of private economic interest v. public interest. Add this to list of ways individual can challenge a state economic regulation: a. DCC b. Priv & Imm c. Federal preemption. d. Economic sub due process e. 5A takings clause. f. K clause.
C. Exceptions to Availability of K Clause: 1. Police power trumps K clause: a. Rationale: b/c state (via police power) is enforcer of K – thus implicit in this is the idea that some power has been reserved to the state to regulate [Blaisdell] b. Limits b/c if take this exception to the extreme than it will swallow up K Clause: 1) State regulation cannot repudiate Ks all together. 2) State regulation cannot impair means of enforcing K. c. Common indicators that police power will trump: 1) Emergency – strong necessity for regulation. 2) Temporary relief. 3) Designed to benefit the public generally – not to benefit specific groups. d. Home Building & Loan Ass’n v. Blaisdell (US 1934) (CJ Hughes) - p507: 1) Facts: 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) Holding: Court upholds statute.
3) D. Other: 1.
Reasoning: see above.
Modern Court’s K Clause Revival - State Obligations: a. United States Trust vs. NJ (US 1977) (Blackmum) - p510: 1) Holding: law impairing a state’s own obligations was entitled to less deference than legislation interfering with private contracts 2) Reasoning: 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 - 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. Modern Court’s K Clause Revival – Private Obligations: a. Allied Structural Steel Co. v. Spannaus (US 1978) - p513: 1) Facts: law retroactively modified payment obligations under private pension plans. 2) Holding: statute unconstitutional. 3) Reasoning: a) Not predictable: state intervened in previously unregulated area. b) Degree of impairment: (1) Minimum impairment: minimal alteration of contractual obligations may end the inquiry. (2) Severe impairment: will push the inquiry to a careful examination of the nature and purpose of the state legislation. 4) Application: this law worked a severe and permanent and immediate change –probably not acceptable - retroactively severely impaired financial obligation. 5) Note: this statute aimed only at those employers who had voluntarily in the past set up retirement plans. Modern Court’s K Clause Revival – A Partial Return to Greater Deference: a. Energy Reserves Group v. Kansas Power & Light Co. (US 1983) - p514: 1) Holding: Court upheld statute – rejected challenge on K Clause grounds. 2) Reasoning: a) 3 step balancing inquiry – test is similar to traditional rational basis review: (1) Can challenger show that state law has caused a substantial impairment of a contractual relationship? (2) If yes, can state show (a) that the law serves a significant and legitimate public purpose (i.e., the remedying of a broad social or economic ill)? [ends test] AND (b) that the means (adjustment of the rights and responsibilities of the contracting parties) is reasonably related to the purpose? [means test] 3) Note: balancing tests often give courts room to find one way or another. 4) Note: this falls on the Nebbia side of spectrum - this is permissive test. 5) Note: Court is hesitant to apply contracts clause to states. b. Exxon Corp v. Eagerton (US 1983) - p515: 1) Holding: Court rejects contracts clause challenge. 2) Reasoning: majority distinguishes between laws specifically directed at contractual obligations and laws that merely have the effect of impairing contractual rights - this law had an incidental by-product of a generally applicable rule of conduct. Modern Court’s K Clause Revival - Retroactivity and Regulatory Laws:
E. Review – Federal Judicial Checks on State Economic Regulation:
Information Sources: 1. See Casebook at p505-516. 2. See Chemerinsky at p494-503.
VI. REVIVAL OF SUBSTANTIVE DUE PROCESS FOR NON-ECONOMIC RIGHTS: GRISWOLD – 11/20/00: A. Mag’s Questions: 1. 2. In what ways to the various opinions in Griswold clarify or complicate the question of how judges can discern “fundamental rights”? The Griswold opinions make various statements about the aspects of sexuality and marriage that are and are not proper subjects for state regulation. Do you think any of the opinions endorses regulatory authority that is excessively broad or excessively narrow? If so, what principles support your disagreement with the Court? How effectively do the majority and concurring opinions in Griswold distinguish Lochner?
B. Generally: 1. Background: Lochner – Nebbia – Carolene Products – incorp debates (compare Justice Black [total incorp] with Justices Frankfurter and Harlan [focus on liberty]) – big hole as to what was left of substantive due process and how to define it. 2. Continuing tension b/w protecting individual rights and avoiding judicial subjectivity. 3. Griswold is the beginning of the modern non-economic substantive due process era. 4. Everyone agreed that state could not regulate in this area (and that this was a fundamental right) – great disagreement over why. C. Griswold v. CT (US 1965) (Douglas) – p518: 1. 2. Facts: state law prevents contraceptive use by married couples. Holding: Court finds law unconstitutional - state may not prohibit married persons from using contraceptives. a. Court seems to think this is the right decision, but not sure where to find constitutional support. Reasoning (Douglas): a. Description: “penumbras and emanations” from enumerated rights. 1) Relies on 1A, 3A, 4A, 5A, 9A. 2) Zone of privacy: created by penumbras protects the rights of married couples to privacy in their home. How well does he distinguish Lochner? 1) Focuses on methodology to distinguish – penumbras rather than natural law. 2) Grounded in text. 3) Walking a tightrope. How well does he balance competing interests? 1) Grounded in text. 2) Open to judicial subjectivity.
d. e. 4.
How is this similar to incorp debates? 1) Focus is on specific provisions in the text – like Black in incorp debates – trying to ground in Bill of Rights. DDD
Concurring in the opinion (Goldberg): a. Description: 9A allows Court to find unenumerated rights in 14A, based on “traditions and collective conscience.” 1) Meaning of liberty NOT limited to Bill of Rights. a) Example of libertarian non-incorp approach b/c does not want to be constrained by Bill of Rights. 2) Relies on 9A as catch-all provision: a) Opening for fundamental rights beyond Bill of rights. b) Judges can’t make decisions in light of their personal and private notions, rather they must look to the traditions and collective conscience of our people. (1) Collective conscience: (a) Constitutional interpretation – MORAL CONSENSUS. (b) Collective conscience evolves faster than traditions - perhaps Goldberg looking to allow court to make more “modern” decisions. (2) DDD 3) DDD How well does he distinguish Lochner’s natural law concept? 1) Goldberg’s focus is on social norms as opposed to natural rights. 2) By focusing on means rather than end, Goldberg can distinguish Lochner. How well does he balance competing interests? 1) Will prevent judicial subjectivity b/c society has coalesced around this issue – MORAL CONSENSUS. 2) But is this really a constraint. Ends/means analysis: 1) Where a fundamental right is at stake, heightened scrutiny. a) Ends: must be a distinctly unique, very important governmental interest (compelling) – here, marital fidelity is legitimate end. b) Means: must be necessary – here, means are not necessary to achieve end.
Concurring in the judgment (Harlan): a. Description: 14A protects rights that are “implicitly in the concept of ordered liberty.” 1) Pushing ordered liberty concept from incorp debates. 2) Rejects penumbras and emanations. 3) Focuses on traditional democratic processes. 4) Says marriage is different b/c state usually protects and extols marriage – thus, this law deviates from the state’s usual practice of protecting marriage. 5) Careful scrutiny of invasion of fundamental rights is required. ??? How well does he distinguish Lochner? How well does he balance competing interests? 1) Appeases originalists b/c Court will look at democratic decision-making process and what law has done before and this will curb judicial subjectivity. 2) But, actually it seems open to judicial subjectivity (see homosexuality examples).
Distinguished from Goldberg’s approach: goes way beyond the text – opens door to MANY unenumerated rights. 1) Traditionally, Harlan used non-incorp to protect states but here he seems to open up 14A. Note: this is the most cited opinion from Griswold as to proper reasoning in substantive due process cases.
e. 6. 7. 8.
Concurring in the judgment (White): a. Legislative goal permissible, but no nexus to means. Dissent (Black): interesting to note b/c Black is usually protector of individual rights – wants a specific constitutional provision. Dissent (Stewart): wants specific constitutional provision.
D. Scope of Griswold: 1. 2. Did Griswold announce a right to contraceptives for married people or a right to private autonomy? Eisenstadt v. Baird (US 1972) (Brennan) – p528: a. Facts: law banning the distribution (not use) of contraceptives. b. Holding: Court found law unconstitutional - marriage proved not to be a critical factor. c. Reasoning: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” d. Note: subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of child bearing is not dependent on that element (sanctity of marriage). e. Note: critical stepping point from narrow holding in Griswold to broad one in Roe v. Wade.
E. Griswold and the Double Standard: 1. All the opinions agree that some fundamental rights, values do deserve special protection (heightened scrutiny). F. Information Sources: 1. See Casebook at 516-530. 2. See Chemerinsky at 658-662.
SUBSTANTIVE DUE PROCESS AND ABORTION RIGHTS: A. Roe v. Wade (US 1973) (Blackmun) – p1973: 1. Mag’s Questions: a. b. Which account(s) of fundamental rights from Griswold appear(s) to animate the Court’s approach in Roe? Is the Roe approach principle? What possible analytical relationship did the Roe Court recognize b/w the question when life begins and the question whether a fundamental right to abortion exists? Was the resolution of the former question a necessary prerequisite for resolution of the latter? Did the Roe Court in fact decide when life begins?
Were the post-Roe cases that upheld various limitations on public funding of abortions correctly decided?
Background – two changes from Griswold to Roe: a. Quick turnover of justices. b. Eisenstadt recasts Griswold holding as announcing right to personal autonomy. Roe v. Wade (US 1973) (Blackmun) – p1973: a. b. c. Facts: DIS CT found TX law unconstitutional under 9A. Holding: Reasoning: 1) Constitutional Source of the Abortion Right – which Griswold approaches are used? a) Blackmun focuses on 14A and converges Harlan (natural law/ordered liberty) and Goldberg (moral/collective consensus) approaches in his opinion; rejects Douglas’ penumbras and emanations approach. b) Representation reinforcing review - political process argument (1) Would it have been better to use a political process argument here – abortion as a class issue - argue women are a discrete majority that is not represented in political process? (2) At this time, Carolene Products had been used in equal protection cases c) Problem b/w it is not clear how “principled” any of these approaches are. d) Follows selective interpretation approach. 2) Balancing of Interests: a) Court applies strict scrutiny. (1) Ends: compelling interest: (2) Means: must be narrowly tailored – necessary to achieve that end. b) State’s interest: (1) Right to protect potentiality of human life. (2) Right to protect mother’s health and life. (3) Note: Court does NOT recognize right for state to regulate morals. c) Individual’s interests: (1) Right to privacy/personal autonomy (liberty). (2) Not absolute: “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” d) Court leaves unresolved the question of how to approach what may be a nonjudicial question (medical, philosophical questions) – Casey will struggle with this. Establishes trimester approach: a) First trimester: individual’s interest trumps state’s interest - state can regulate abortion in respects necessary to protect the health of the mother. b) Second trimester: balancing of interests. c) Third trimester: state’s interest outweighs mother’s privacy interest – state can prohibit abortion after viability (as long as exception for medical necessity). d) Even though Court purports not to answer the question of when life begins, it does so through the trimester approach - it claims the state interest in potentiality of life is greater than privacy right after viability.
Concurring (Steward): Concurring (Douglas):
f. g. h. i. 4.
Dissenting (White): Dissenting (Rehnquist): slams majority – says this is NOT a privacy case – wants to apply rational relation test. Note: how to distinguish from Lochner? Note: is Roe less defensible than Griswold b/c no textual grounding.
Political Reactions to Roe: a. Proposed political amendments. b. Legislative actions. c. S Ct appointments. Efforts to Overturn Roe – Regulations of Abortion Procedures - Generally: a. b. Akron v. Akron Center for Repro Health (US 1983) (Powell) – p546: follows stare decisis and affirms central liberty and reiterates Roe’s trimester division. Thornburgh v. Amer College of OB&GYN (US 1986) (Blackmun) – p547: 1) Holding: strikes down several restrictive provisions of PA abortion law. 2) Reasoning: Roe raises moral questions, but that does not relieve the court of the duty to apply the constitution faithfully - “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision- with the guidance of her physician and within the limits of Roe- to end her pregnancy.” Webster v. Reproductive Health Services (US 1989) (plurality) – p548: affirming Roe holding.
Efforts to Overturn Roe – Regulations of Abortion Procedures – State Regulations of Abortions and Contraceptives in the Wake of Roe: a. Spousal and Parental Consent Requirements: 1) Planned Parenthood of Central Missouri v. Danforth (US 1976) - p548: Court strikes down spousal consent to abortion. 2) Bellotti v. Baird (Bellotti II) (US 1979) – p549: Court held that state could involve parent in a minor’s abortion decision ONLY if it also provided an alternative procedure (normally a judicial one) in order that the parental involvement would not amount to an absolute and possibly arbitrary veto. 3) HL v. Matheson (US 1981) – p549: Court sustained parental NOTICE requirement (not consent). Regulations of Medical Practices – Protection of Viable Fetuses: 1) Court generally struck down regulations of medical practices: a) Struck down hospital setting requirement for abortions performed after 1st trimester. b) Struck down complicated abortion information requirement. c) Struck down mandatory 24 hour waiting period.
Efforts to Overturn Roe – Regulations of Abortion Procedures – Refusal to Fund: a. Generally: post-Roe Court struck down most efforts to restrict access to abortion with the EXCEPTION of funding decisions. 1) Rule: in structuring welfare programs, government may constitutionally choose NOT to fund abortions for financially needy pregnant women (even where it does pay for childbirth).
Rationale: right/privilege distinction. a) Right (negative right): right to be free from interference with fundamental right. b) Privilege (positive right): does not give you right of access to implement that right. c) Distinction b/w direct state interference with a protected activity and state encouragement of an alternative activity (but isn’t this more than encouragement).
Maher v. Roe (US 1977) (Powell) (6-3)– p550: 1) State grants medicaid benefits for childbirth but denies them for nontherapeutic, medically unnecessary abortions. 2) Right in Roe was to protect the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. 3) Roe does not imply limit on the authority of state to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds. 4) If poor women can’t get an abortion, it is the fault of their poverty, not the state’s action – this is truly OFFENSIVE. Harris v. McRae (US 1980) – p551: 1) Court rejected constitutional challenges to federal funding limitations that barred payments for most medically necessary abortions. 2) Roe’s freedom of choice does not carry with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. Rust v. Sullivan (1991) – p553: 1) Extends reasoning of 1 & 2 to a restriction on abortion counseling by any project receiving federal family planning funds. 2) “The government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion and implement that judgment by the allocation of public funds for medical services relating to childbirth but not to those relating to abortion.”
Access of minors to contraceptives after Griswold and Roe: a. Carey v. Population Services Int’l (US 1977) (Brennan) (plurality) - p554: 1) Holding: Court struck down a NY prohibition of the sale or distribution of contraceptives to minors under 16. 2) Reasoning: “strict scrutiny required for restrictions on access to contraceptives because such access is essential to exercise of constitutionally protected right of decision in matters of childbearing that is the underlying foundation of the holdings in Griswold, Eisenstadt, and Roe” 3) Rejected argument that statute could be upheld as regulating morality of minors. b. Webster v. Repro Health Services (US 1989) - p555: 1) Holding: Court held that statute’s preamble (life begins at conception) did not conflict with Roe’s statement (that state may not adopt one theory of when life begins to justify its regulation of abortions). 2) Reasoning: a) Statute prohibits public employees from performing abortions in public hospitals this is ok because it leaves woman with same choices as if the state had chosen not to operate any public hospitals at all. b) Plurality: viability testing requirement passes muster because it only requires test when physician in his judgment thinks fetus older than 20 weeks.
Information Sources: a. See Casebook at 530-557. b. See Chemerinsky at 662-685.
B. Planned Parenthood v. Casey (US 1992) (O’Connor, Kennedy & Souter) – p557: 1. Mag’s Questions: a. Did Casey substantially overrule Roe? Does the Casey plurality’s “undue burden” standard provide a more principle basis for a fundamental right to abortion than the application of strict scrutiny in Roe did? Did the Casey plurality apply its new standard properly? Where does the question when life begins fit into the Casey plurality’s analysis? Did the plurality resolve that question adequately to support the result in Casey? How effective and legitimate was the plurality’s judicial approach in Casey? Did the plurality effectively constrain judicial discretion? What do you think of the plurality’s analysis of stare decisis?
Generally: a. Casey is last big word on substantive due process right to abortion. b. Roe was culmination of non-economic substantive due process rights. c. States try to push against Roe as far as possible – examples: 1) Funding restrictions. 2) Spousal consent. 3) Parental consent. 4) Waiting periods. 5) Anti-abortion literature reviews. d. Political tension is at fever pitch and along comes Casey. Planned Parenthood of SE PA v. Casey (US 1992) (O’Connor, Kennedy & Souter) – p557: a. b. Facts: PA abortion law with many restrictive provisions. Holding: 1) In what sense is Casey an affirmation of Roe? a) Affirms the 3 central holdings of Roe (but are these really the holdings of Roe or a modified characterization of them?): (1) Recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. (a) Before viability, state’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure (2) Confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. (3) State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. 2) Departure from Roe: a) Reject trimester approach – switch to viability as interest-shifting point. b) Standard of review: move from strict scrutiny to undue burden. (1) Unknown whether this signals a paradigm shift in all substantive due pro cases. (2) Which test is more precise? Roe’s strict scrutiny was more familiar, easy to apply – undue burden is less familiar test (like Pike balancing test). (3) Which test better constrains judicial subjectivity? You can argue both. Reasoning: 1) ??? Why substantive due process for non-economic rights?
a) b) 2)
Economic rights: zero sum game - someone wins, someone loses. Non-economic rights: some parties will not have standing - no legally cognizable injury to challenge - there is underlying question whether something is “right.” Liberty protected: a) Constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. b) These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14A. Stare Decisis Discussion: a) Plurality seems to say that to overrule precedent there must be a compelling interest - four factors to consider: (1) If rule is unworkable, may be reason to overrule. (2) If past precedent is a doctrinal anachronism, may be reason to overrule. (3) If facts change, may be reason to overrule. (4) If there is great reliance, may be reason to affirm. b) Plurality talks about legitimacy but nobody really buys this. c) Dissents attack this view of stare decisis.
Switch to Undue Burden Standard: 1) Court disposes of trimester test and adopts the undue burden test. a) Undue burden: “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” 2) Guidance in assessing whether burden is undue: a) The right at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. b) Regulations which do no more than create a structural mechanism by which the state, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. c) Under this limit, state can pass a statute designed to persuade a woman to choose childbirth over abortion, if the state statute is reasonably related to the goal. Application: 1) 24-hour waiting period & informed consent requirements: Court upholds both b/c state has interest in protecting fetal life - seems like the Court is giving a little more emphasis to the state’s interest in protecting potential life than individual liberty interest. 2) Reporting requirements: Court upholds even though appear to be extensive reporting requirements b/c identity of woman remains confidential. 3) Parental consent: Court upholds b/c there is a judicial bypass provision. 4) Spousal notification: Court strikes it down as undue burden b/c it is “likely to prevent a significant number of women from obtaining an abortion” - Court said this was more than merely making abortion more difficult or expensive to obtain. Court’s role in the moral debate: “some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” Concurring and Dissenting (Stevens) 1) Does not like the undue burden test - prefers trimester framework. 2) State should not be able to force doctors to provide info aimed at getting woman to choose childbirth over abortion. 3) 24 wait is undue burden. Concurring and Dissenting (Blackmun)
1) 2) i.
Thinks state infringing on right of privacy and should thus be subjected to strict scrutiny. Thinks state is “conscripting” women’s bodies into their service by requiring them to have kids.
Concurring and Dissenting (Rehnquist) 1) Roe wrongly decided and should be overruled 2) Constitution says nothing about right to abortion 3) Longstanding tradition has allowed abortion to be proscribed Concurring and Dissenting (Scalia): similar to above. Note: practical consequence of Casey is to give greater deference to state legislature’s choices – Court is using tricky maneuvering to keep Roe but to also achieve different outcomes. ??? Note: both sides of abortion debate are frustrated with lack of uncertainty in Casey – like playing a game.
j. k. l. 4.
Casey and the Purpose to Restrict Abortion - Mazurek v. Armstrong (US 1997) – p60supp: a. Facts: Montana state law allowed physicians assistants to perform abortions, then passed a statute prohibiting abortion by physician assistant. b. Holding: Court upheld state law as constitutional c. Reasoning: neither side contested that there was no undue burden claim - Court not persuaded that law amounted to undue burden because it only affected one practitioner. Partial Birth Abortions – Stenberg v. Carhart (US 2000) – p61supp: Court found NE law that prohibited partial-birth abortions b/c it did not have medical necessity exception. Information Sources: a. See Casebook at 557-584. b. See Supp at 60-62. c. See Chemerinsky at 669-673.
SUBSTANTIVE DUE PROCESS: FAMILY, SEXUALITY, AND AUTONOMY – 11/29/00
A. Mag’s Questions: B. DDD: C. DDD: D. DDD: E. Information Sources:
IX. SUBSTANTIVE DUE PROCESS AND THE RIGHT TO DIE – 12/01/00
A. Mag’s Questions: B. DDD: C. DDD: D. DDD: E. Information Sources:
X. DUE PROCESS AND THE RIGHT TO A HEARING A. Mag’s Questions: B. DDD: C. DDD: D. DDD: E. Information Sources: