An Elucidation of Fourteenth Amendment Law
Fourteenth Amendment, Winter 2013, BYU Law, Prof. Gedicks
Contents
I.
Introduction & Positive/Natural Laws ................................................................................................. 2
II.
Privileges & Immunities—Troublesome Prelude to Civil War ......................................................... 2
III.
Moving from Civil War to New Deal................................................................................................. 3
A.
Division of Rights ............................................................................................................................. 3
B.
Stillborn Amendments...................................................................................................................... 3
C.
Modes of Interpretation ................................................................................................................... 4
D.
State Action Doctrine ....................................................................................................................... 5
IV.
V.
General Constitutional Law ................................................................................................................. 5
New Deal Comes and Goes .................................................................................................................... 5
VI.
Race/Ethnicity Garners Strict Scrutiny.............................................................................................. 6
A.
Modes of Interpretation & Brown.................................................................................................... 7
B.
Remedies Flowing from Brown ...................................................................................................... 7
C.
Suspect Classification Doctrine....................................................................................................... 8
D.
Prima Facie Equal Protection Clause Violation ........................................................................... 8
1. The Tensions ..................................................................................................................................... 9
E.
A Slightly Modern Example ............................................................................................................ 9
F. Affirmative Action Cases ..................................................................................................................... 9
G.
VII.
Law of Affirmative Action.............................................................................................................10
The Church and Blacks ......................................................................................................................10
VIII.
Gender Equality ..............................................................................................................................10
A.
But . . . How do you get to the point of intermediate scrutiny? ...............................................12
IX.
X.
Other Suspect Bases of Classification—Hard Look Rational Basis ............................................12
More General Constitutional Law Crap ..............................................................................................12
XI.
How to Do a Due Process Analysis .................................................................................................13
A.
Choose Your Poison (On Test—Prioritize if Time Short) .......................................................13
B.
Describe the Right ..........................................................................................................................13
C.
Assess ................................................................................................................................................13
D.
Strict Scrutiny ...................................................................................................................................13
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XII.
DPC/Fundamental Materials ............................................................................................................13
A.
Criticism of DPC Analysis .............................................................................................................13
B.
Birth of Family/Living Arrangement Rights ..............................................................................13
C.
Reproduction Rights .......................................................................................................................14
I.
Introduction & Positive/Natural Laws
The focus of this course is un-enumerated rights. This naturally leads to a discussion or
debate between Positive Law and Natural Law. Natural law pre-exists the sovereign, and are
a characteristic of the universe or cosmos. The counterargument is Schrodinger’s Cat. The
universe does not manifest itself until a human looks at it, and then what is there is
controlled by what the human was looking for. But, the Framers believed that natural law
could be objectively determined. If they got it right, the precedent would endure. So,
perhaps, the natural law of the Constitution is what the Framers believed. Positive law deals
with affirmatively enacted laws.
Fletcher v. Peck: The Yazoo land grant scandal involved fraudulent transactions between
the legislature and buyers. The third party buyers were shielded with Marshall resting his
decision on both law theories. “Either by general principles which are common to our free
institutions, or by particular provisions of the constitution of the United States.”
Nowadays, the liberals like un-enumerated rights, but conservatives want to be objective.
Due Process of Law cannot be separated from the natural law idea, otherwise, the legislature
can do anything so long as there is a process or procedure.
The trouble comes when you have natural laws conflicting with each other. One
must also ask whether humans have the ability to see the transcendent norms.
Further trouble comes when you go down the path of slavery, subordinated women,
etc.
II.
Privileges & Immunities—Troublesome Prelude to Civil War
The Privileges & Immunities clause requires each state to treat its own citizens and other
U.S. citizens equally. And, from Corfield v. Coryell, we get the suggestions that the privileges
and immunities are natural rights.
Then comes Dred Scott. Taney makes an originalist conclusion that blacks are not considered
citizens and thus do not have the ability to call on the federal courts. A dissenting vote
points out that women, children, and servants cannot vote but are considered citizens. (So
maybe, they have civil rights, but not political rights.) And then, Taney really sticks his foot
into it. He declares that it is a violation of Due Process of Law for a positive law to deprive
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one of vested property from the mere crossing of a border. This plays out to mean that
states cannot really prohibit slavery.
Textual arguments would suggest that the Constitution endorses slavery, or on the other side
of the coin, discourages it through the 3/5 compromise, elimination of importation, etc.
III.
Moving from Civil War to New Deal
A.
Division of Rights
 Civil rights: Sue, be sued, access courts, enforce contracts, buy property, sell
property, inherit property; also the controversial equal protection and antidiscrimination
 Political rights: Voting, political office, hold offices of public trust, trustees,
lawyers; many of these things are seen as governed by positive law
 Social rights: (not a term or construct of period) ability to marry another race,
de-segregated schools, social mixing, etc.
Generally, everybody but the worst Democrats were okay with civil rights for blacks.
Political rights were much more difficult, and social rights did not exist. The chief
Republican motivation for political rights was an interest in preventing the South
from getting as much representation as they might otherwise get. Radical
Republicans had a view of the 14th Amendment that makes privileges and immunities
broad natural rights.
B.
Stillborn Amendments
Getting 13, 14, and 15 passed was tough and involved shady dealing everywhere. On
top of that, the legislative history is fuzzy because the promoters sold it so many
different ways.
The 13th is usually interpreted narrowly, but a broad view looks to give Congress the
power to go after anything that smacks of badges, institutions, practices, etc.
Relevant Text from 14th: No State shall make 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.
Slaughterhouse pretty much crippled these amendments. Louisiana banned all
slaughterhouses except one it had incorporated. All butchers would have access to
this slaughterhouse for nominal fees, etc. Slaughterhouse bifurcates citizenship, saying
that the states control the important, un-enumerated rights and the federal
government protects privileges and immunities (natural law rights) like habeas corpus
and navigable waters. The Court gives great deference to the state’s police power.
The Court also emphasizes that this isn’t a race issue, so the Civil War amendments
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are not especially applicable. Justice Field’s dissent became influential where he says
that the 14th stretches to people seeking to carry out a legitimate occupation
(substantive due process). He also hints at tailoring. Justice Bradley also becomes
influential in his dissent. U.S. Citizens get rights. The federal rights are the basic
rights of Englishmen.
Bradwell next came down the line with Myra Bradwell wanting to practice law. The
Court declared that privileges and immunities is limited. This is a state police power,
etc. Even Field concurred in judgment, relying on coverture theory as limiting his
otherwise broad view of the 14th Amendment. (Women tried a New Departure
movement, trying to merge political rights with civil rights, or claiming that they had
been in past servitude.) In Minor the Court declined to give suffrage to women,
saying that the Constitution does not really enumerate rights, it protects rights
already there. Women previously did not have the right to vote.
In a departure, Strauder viewed the right of a defendant to have a jury of their peers
assembled without discrimination. It seemed to interpret this as a civil right,
analogizing that whites would be furious if weeded out of the jury pool. The dissent
argued that this was a political right and that the state could qualify whom it would
for jury service.
Then comes Plessy. The Court dismisses this as a 13th concern. It declares that this is
not privileges and immunities, is not a deprivation of property, and is in fact equal
protection—separate but equal. Justice Harlan dissents, saying that the law is
supposed to be color blind, that this is a condition of past servitude, etc.
C.
Modes of Interpretation
Consider how you might apply the 14th to racial segregation. No matter what, you
will be making a choice about how to interpret or apply.
 Textual argument: Equal protection is being equal before the law. The
problem with texts, though, is that they cannot speak for themselves. You
have to pull in other principles to guide interpretation.
 Intentionalism: What was the intent of the legislators? What about the intent
of states ratifying the amendment? Can you articulate intent at a higher level
of abstraction and then say that you are following a principle, but perhaps
not the intended application?
 Originalism: What was the public meaning or understanding of this
amendment? What was whitewashing or spin?
 Ignore the text? Do what is right or just?
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D.
State Action Doctrine
The Civil Rights Act of 1875 provided that people are entitled to full and equal
enjoyment of accommodations, etc. Any limitations must be applicable to every
citizen.
This is followed by the Civil Rights Cases, 1883. The Court declined to uphold most
of the portions of this Act. Basically, the Court took a narrow view of the 13th
badges and then differed social from civil rights in the 14th. Finally, it says that
Congress’s power there is remedial and limited to state actions—like jury selection,
which was the portion of the Act upheld. Harlan dissented and argued for a broader
interpretation of the 13th, and also argued that public accommodations are
connected to state action. The result is 1) Narrow interpretation of 13, 2) Private
discrimination allowed, 3) 14th limited to state actions.
Downes v. Bidwell suggests that Congress must affirmatively extend 14 to territories.
Thus, civil rights might apply generally, but political rights do not. What’s the point?
We seem to see differentiation where everything but black and white is excluded. We
also are seeing the Court declining to extend the 14th to cases where it has federal
jurisdiction—this is another facet of the 14th being limited to state action. (You see
incorporated and foreign territories—a difference between whether white people
would be settling them.)
IV.
General Constitutional Law
View this as an informational bridge between State Action and New Deal.
So, if the federal courts are sitting in diversity you have principles of General Constitutional
Law. The 14th is involved, but it is a federal court, so the court goes un-enumerated but will
act strange on Federal questions. This is based on natural law assumptions and economic
libertarianism. You have a natural right to fruits of labor and thus the right to make
contracts. This involves republican democracy. You cannot arbitrarily take property or
dissolve marriages.
V.
New Deal Comes and Goes
The 14th suddenly got a shot in the arm when the rednecks (who couldn’t make the
contracts they wanted) and capitalists (being bothered by public health regulations and
having stark terror over Marxism movements) started to suffer from government regulation
in the late nineteenth and early twentieth century. The Court suddenly embraces Justice
Bradley’s view from Slaughterhouse.
Steps:
 Munn v. Illinois, 1877: Court upholds law capping grain storage rates saying that this
is a public interest and implying that private interests might be immune to state
regulation.
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


Railroad Commission Cases, 1886: Upholds railroad tariffs, but says that there has to
be reasonableness. Suddenly, courts now determine what is reasonable.
Santa Clara v. S. Pacific, 1886: Corporations are people under the 14th.
Minnesota Rate Cases, 1890: Setting rates without proper review is deprivation
without due process. Judiciary will be checking reasonableness.
Lochner v. New York, 1905: Bakery regulations. The model set up by the Court here says
that there is a presumption of unconstitutionality. If you cannot show how a lack of
regulations presents harms to the general public, you have no justification to regulate. This is
tied to Social Darwinism. You have the judiciary making decisions it is not expert about. The
dissenters say there should be a presumption of validity and you strike if there is no relation
to the problem.
Down the road, you see caps on railroad employment (passenger safety), miners doing
blasting (public safety), etc. In Muller v. Oregon, we see the Court uphold female labor caps,
and the Court cites the proper roles of women, etc. And so, we get something like a Redrup
situation. Until FDR comes along.
United States v. Carolene Products, 1938: We’re not going to invalidate anything that has a
rational basis that we can imagine. Here, who knows about the ban on synthetic milk
products. The footnote declares that where the democratic system is broken, higher scrutiny
would be justified. Later, in Williamson v. Lee Optical, we’re saying that stuff violating the
Constitution, distorting the machinery/processes of democracy, or burdening/discriminating against religious,
national, racial minorities or discrete, insular minorities from the political process will be struck down—or at
least examine more carefully.
Railway Express is the most classic example because the regulation is ridiculous, but the
Court is able to imagine a rational basis and even notes that the legislature does not have to
go after every possible, related evil.
VI.
Race/Ethnicity Garners Strict Scrutiny
The NAACP strategically went after Southern law schools. The separate but equal defense
would be expensive for the South to accomplish. The overall attitude of the country also was
changing—Nazis had changed things, and the Communists were making fun of us. A couple
of cases declared that states could not deny access to a law school, and also that some law
schools were not equal enough.
Brown v. Board of Education, 1954: Separate educational facilities are inherently unequal. A
school system providing for segregation is violating 14. So, is this a focus on process or
results, then?
Fifth now includes equal protection: Bolling v. Sharpe: On the same day as Brown, the
Court declared that equal protection is a subset of due process, and due process
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contemplates a full range of abilities/rights that the government should not improperly
impede.
A.
Modes of Interpretation & Brown
 Textual argument: The Fourteenth demands equal protection. But, equal to
what? Are we caring about equal results or process? At what level to you
enforce the equality?
 Intentionalism: What is the category of people who had intentions? What did
each one think? Which ones are important? Floor managers, leaders, writers,
most people around?
 Original Public Meaning: What was the standard usage and understanding.
This is better for the Fourteenth than intentionalism because of all the dirty
stuff going on.
 Translation: How do you translate what was meant then in politics, attitudes,
background assumptions, etc.?
 Original principle originalism: Split original application from original
principle and move the principle forward.
B.
Remedies Flowing from Brown
Brown II pretty much put everything on hold. Trial courts slowly ground away at the
system. The two remedies were freedom of choice, which resulted in further
segregation, and geography, which was intensely unpopular.
In Green, the Court declares that racially identifiable schools must be abolished.
Swann v. Charlotte-Mecklenburg, 1971: Racial percentage goals can be okay, onerace schools are still possible, but once a violation/intent to segregate has been
shown, you have a de jure situation and the courts can issue some strong medicine.
Busing is appropriate. De jure is established by intent and act. Keyes maintains the
different between de jure and de facto. Plaintiffs must prove de jure in at least a
portion of the district before the strong medicine flows. Once the finding of de jure
is removed, it becomes difficult for plaintiffs to continue.
Parents Involved v. Seattle School District No. 1, 2007: The school system had race
as a tie-breaker in some balancing scheme. Neither school system involved was
under a de jure fining at the time. The Roberts plurality declares that strict scrutiny
applies. The Court has recognized two compelling interests with race diversity: mending the old de
jure, and higher education, and even then, we were including more than race in diversity. Grutter
and Gratz are not applicable—this is totally mechanical. So, the plurality refused to
buy the compelling interest and certainly not the tailoring. Kennedy bought the
compelling interest, but declined on the tailoring. Kennedy thinks the system is crude
and doesn’t stick to the goal. He also doesn’t like deferring. The dissenters would
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defer a lot more and recognize the compelling purpose, etc. In fact, the dissent might
not even acknowledge that strict scrutiny is appropriate.
So, if you’re the clever school district going for diversity, you can play proximity,
racial balance if you have de jure, or do a magnet school.
C.
Suspect Classification Doctrine
Loving: Why is the state classifying marriage applicants by race? We want higher than
rational basis here. Then, in Korematsu, we have the Court saying that the
classification on a racial group is suspicious. We get strict scrutiny basically
announced, but a terrible application of it.
D.
Prima Facie Equal Protection Clause Violation
1) Establish a discriminatory intent or purpose (this is where cases fail)
a. De jure (by law)
b. Inferred from impact if there is an impact and there is no
plausible race neutral explanation or, as per Fordice, the Court
chooses to look at the history (Yick Wo—the Chinese laundry
discrimination that was so obviously involving somebody
systematically denying licenses)
i. Yick Wo—Chinese laundry
ii. Ho Ah Kow—general haircutting regulation, obviously
aimed at Chinese
iii. The town boundaries are ridiculous and exclude all but 2
blacks
2) Establish a discriminatory effect
a. Griggs v. Duke Power—requirement of test even though not
needed to perform work and conveniently, blacks cannot pass
b. But, Washington v. Davis—mere disproportion not enough
i. But, it can be enough where:
1. Impact of action
2. Historical background
3. Sequence of events
4. Departure from normal procedure
5. Factors usually considered would go other way
6. Legislative history
3) Defense: Government proves with clear and convincing evidence that
disproportion exists without race discrimination
4) Defense: Strict scrutiny is met
a. Compelling Interests:
i. Korematsu—national defense or whatever
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ii. Diversity in higher education (Kennedy and Liberals will
stretch to lower education. Kennedy depends on finding
good tailoring)
iii. De jure order in effect
1.
The Tensions
There is now a tension between whacking classifications and going after antisubordination. The former looks forward only. The latter will look back and
cut slack.
Ultimately, if the government has a classification in place, then you’ve got an
easy case to try—good luck to the government in proving that strict scrutiny
is met. Then, where you have noticed an impact, it becomes difficult. You
will have to prove intent to the point where the government has to explain
that the racial gap occurs naturally or that there is a compelling interest.
Further trouble arises when you try to define race. Is it status-based, formal
(molds nicely with classification schemes), historical, or cultural?
E.
A Slightly Modern Example
Fordice, 1992: Mississippi had the procedure of a racially neutral system, but the
ACT was still favoring white students, there was duplication of systems, and the
Court found enough signs that something was amiss—basically, the Court could
imagine things the system should be doing. Bazemore did uphold apparent segregation
in clubs because of independent choice. This is different, though. If the state is
involved, independent choice or a focus on process doesn’t fly. There needs to be
results. The main tension is process v. results. Process is winning.
F.
Affirmative Action Cases
Regents v. Bakke, 1978: 16/100 seats reserved for economically or educationally
disadvantaged people to compete for after being denied access to the other 84 seats.
There is no majority opinion, but Powell’s opinion was instructive. He called for
strict scrutiny all around. The sticker is that the liberals think that this sort of
affirmative action is benign, rather than invidious. Powell goes for a strict scrutiny,
but is okay if it is benign and a soft factor in admission.
Croson, 1989: Richmond requires 30% of money devoted to Minority Business
Enterprises. The city wanted to take remedial actions. The Court required a more
compelling, definite interest, rather than just a broad assertion of past problems. The
Court further saw no tailoring based on percentages whatsoever. O’Connor was also
skeptical about whether cities or states had remedial power. O’Connor also
emphasized that the 14th is not dependent on race. The liberals were okay with cities
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fighting discrimination and would have gone for intermediate scrutiny—especially
with a benign system.
Grutter, 2003: The school was doing a “plus” system and going for “critical mass.”
Academic freedom and diversity are important and crucial. We think the tailoring is
sufficient. The conservative were annoyed, of course.
Grataz, 2003: The undergrad point system which gave a boatload of points to
minorities was struck down. Maybe it is enough of a compelling interest, but that’s
pretty sloppy tailoring.
G.
Law of Affirmative Action
1) All racial stuff that smacks of affirmative action triggers strict scrutiny
a. Will not ascertain invidious/benign
b. In any instance, for somebody, it is invidious, and even if it is benign, it is
patronizing and thus invidious.
2) Compelling government interests must be found
a. Diversity/academic freedom
b. Past discrimination of the actual government system at question, and
there is an order for the government to do something about it
3) Narrow tailoring is required, but it is not necessary to exhaust every avenue.
Some cases have been a little to deferential on their tailoring, however.
VII.
The Church and Blacks
Basically, the Church early on strived to avoid being lumped in the Abolitionists. At some
point, it got sucked into the mainstream racial attitudes, at least as a people. The article we
read seems to show to me that the black guy allowed by Joseph Smith may have been an
exception or accident. Brigham Young was vocal and succeeding prophets stayed the course
on policy, though expressed their personal feelings differently. In the 1970s, the Church had
its revelation, etc.
VIII.
Gender Equality
In the 1970s, the Court becomes concerned with equal protection of gender. Until then, at
best, women were getting rational basis review or benefitting from the 19th and the Court’s
attitude toward letting people contract until the New Deal.
In Reed v. Reed, 1971, the Court claims to do rational basis on the Idaho law favoring male
probate administrators after all other factors equal. It finds in favor of women, but really,
pure rational basis would have found for the law then in place.
Frontiero v. Richardson, 1973: The military assumes wives are dependents, but requires
proof to list a husband as dependent. Four justices go for strict scrutiny. Administrative
convenience isn’t compelling, etc. The other four justices assumed that the ERA would
resolve this and did not sincerely weigh in.
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An aside on the ERA: It failed, yet the things that were feared have come to pass largely.
Where does that leave us? So, as parallel to the ERA, what would have been wrong with
strict scrutiny on gender? You can have genuine norms, though if you’re talking about job
requirements, you have a paradox where males have previously set the norms.
Race is tied to classification. Such classifications are almost never legit. Sex equality is
problematic, though. If you have a law demanding equal treatment, you must have women
equal in the first place. Real differences makes it so that classification elimination does not
work. And then there is the question as to whether some of these differences are actual or
just socialized or based on assumptions. Also the questions of whether we should socialize
the cost of some of these differences—pregnancy benefits?
It becomes awkward when empiricism starts pointing to unpopular things. If you are going
to have a classification, you had better have data, and even that might not be enough.
This brand of intermediate scrutiny, for gender classification is more than rational basis—
you’ve got to have the right ideas to begin with.
Pregnancy often can be an okay reason to discriminate. Automatically putting widows or
widowers in different categories fails. The Court does not appreciate anything that
perpetuates stereotypes. The official intermediate scrutiny test is as follows: Important
governmental objectives and means substantially related to achievement of the
objectives must be shown. Also, exceedingly persuasive justification.
VMI: Single-sex military academy. Court applies the test above. The separate but equal
school was baloney. Post-hoc arguments. Arguments that females would ruin are not
persuasive. Scalia, dissenting: We should not enforce our own close-minded ideals to get rid
of some other century’s ideals. Democratic process takes care of things. We’ve got unbroken
traditions with no violation of the Bill of Rights. (He argues for a slow route to achieve the
equality.
Hogan: Seems to act like “exceedingly persuasive justification” is code for “intermediate
scrutiny.” Generically saying that one gender is handicapped or disadvantaged is
unacceptable.
ALSO—Michael M. is where you find the court making a gender classification legit—
statutory rape. Some gender classifications can be because of physiological differences—but
one must be careful to make sure that it isn’t an imputed difference between the genders.
The Court applies substantial relationship to important governmental objectives test. The
objective was to reduce teen pregnancy and the fit was the law and that the females had their
own “punishment” of the pregnancy.
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So . . . applying this to the military: The government might have an interest in physical
capability, unit cohesion, emotional fitness, expense, reproductive complications, etc. What
is the solution to these interests? Unfortunately, one can think of better fits.
A.
But . . . How do you get to the point of intermediate scrutiny?
In Feeney, the Massachusetts veteran civil service preference case, we find the
Washington v. Davis of gender discrimination. If you can find the government
overtly or covertly (perhaps through lack of a rational basis or a Yick Wo situation)
discriminating, you can take the path to intermediate scrutiny. But, the government
can still show by clear and convincing evidence that the statute passed in spite of the
discriminatory purpose that some might have had. Foreseeable consequences isn’t
necessarily intent.
From Hynson, we see that you need the cops deciding to provide less assistance to
domestic violence situations because of a sexism policy. And before you could get to
that, you’d have to run some states on how the police react to calls anyway.
Soto v. Flores—even if cops are declining to enforce a law they do not like, you
would have to show that sexism is the reason behind their discretion.
Geduldig—California pregnancy. State has a legit purpose in controlling the
expenditures of their program.
IX.
Other Suspect Bases of Classification—Hard Look Rational Basis
Basically, when there is a government classification, or apparent classification, dealing with
classes vulnerable to stereotype, like LGBT, retarded, food stamps, fornicators, etc., there is
going to be some hard look rational basis.
With Cleburne, the court did not buy any of the zoning excuses against the group home.
Likewise, in Romer, the Court determined that there was a classification going on and did
not buy the reasons.
X.
More General Constitutional Law Crap
There is a range of un-enumerated national and customary rights. This was a national
common law sort of thing until Erie killed them dead. Theoretically, the Bill of Rights
textualizes chunks.
Nowadays, this general constitutional law is kind of in our DPC jurisprudence. A purported
law that violates natural law is not really a law. Basically, Lochner is back for social rights.
The BoR protected against an abusive central government. Then the declaratory theory
comes around—the BoR just tells us some of the big picture. Then, the shift to Congress
protecting people from abusive states.
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Eventually, Justice Black claims total incorporation, but Frankfurter demands that
fundamental fairness and ordered liberty overlap with the BoR sometimes. Ultimately, the
Court selectively incorporates the BoR. Thanks to incorporation, BoR case law built up and
went after the Federal government.
XI.
XII.
How to Do a Due Process Analysis
A.
Choose Your Poison (On Test—Prioritize if Time Short)
 History and tradition of our nation
 Moral reasoning (implicit in ordered liberty) (autonomy)
 Evolved national values (look to indicia like statutes in the states, court
rulings, juries, prosecutors, international laws [Execution of juvenile
offenders] etc.)
B.
Describe the Right
Glucksberg is where Rehnquist adds this. Beware doing a straw man here. If you
want to protect the right, describe it very specifically, and look for it among the Part
A analysis. If you’re against the right, describe it less specifically and look for it
among the Part A analysis.
C.
Assess
Frankly assess of the plausibility of what is being asserted.
D.
Strict Scrutiny
If it passes the test and becomes a fundamental right—you have a strict scrutiny
situation and the analysis that follows.
DPC/Fundamental Materials
In Meyer, some guy got busted for teaching German and in Pierce, we have the Court striking
down mandatory public school attendance. These are tied to the 14th, somewhat like
Lochner.
A.
Criticism of DPC Analysis
Public morality? Political question. No general morality. What about natural rights?
How do you figure those out? Court isn’t the philosopher. Foreign views? No.
B.
Birth of Family/Living Arrangement Rights
Initially, Village of Belle Terre says that state zoning can prevent unrelated people
from living in the same house. But, City of East Cleveland has the Court strike its
law down for not allowing extended family, etc. in their zoning ordinances. It was a
violation of fundamental rights.
Also—Michael H. v. Gerald D. The Court doesn’t buy the procedural Due Process
claim. The guy got “procedure.” As for his “rights” in the situation as the bastard
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father, Scalia looked to tradition narrowly, and in the infamous footnote basically
said that when looking at tradition, you go as absolutely narrow as you can on a
particular situation. Of course, the liberal rejoinder is that too narrow is absurd.
O’Connor and Kennedy dissent from the footnote—saying they approve of past
decisions that were a little less narrow.
C.
Reproduction Rights
Griswold: Justice Douglas tries a penumbra approach, mentioning that something
about the case seems to intrude on liberty and gives us pause. Douglas was
attempting to avoid the resurrection of Lochner—he succeeded, but Harlan, who
says you should just stick Lochner in for non-economic stuff ultimately wins.
Scalia has a pin-prick theory that says that the rights are on a rational continuum.
The difference between Scalia and Harlan is that Scalia is more of a textualist and
traditionalist while Harlan is an ethoscist, looking to what it means to be American.
Eisenstadt—EPC violation of distribution.
Carey v. Population Services—state can’t really deal with childbearing.
Zablocki—discouraging marriage not good for state—marriage is fundamental right.
Roe v. Wade: Tradition is fuzzed up, ordered liberty in the form of privacy,
penumbra. Trimester 1: Decision entirely the woman. Trimester 2: Can be dangerous
and state thus can regulate. Trimester 3: State can prohibit all but those absolutely
necessary for its interest in potential life. So . . is the state winning those
concessions on compelling interest? Problem—viability is always getting earlier,
along with safety of woman later into abortion.
Planned Parenthood v. Casey: Abandons trimester. Before viability, the state can
regulate choice without placing an undue burden on the woman. Waiting periods
okay, informed consent okay, notifications with judicial bypass pretty much okay.
After viability, the state can start regulating. State has interest in women health and
potential life. If woman’s life in jeopardy after viability, state cannot interfere. Also—
why we kill old rulings: intolerable/unworkable rule, hardship that would come from
previous reliance, already abandoned, facts have changed.
Ultimately, state regulations are on the undue burden test, which is heightened
scrutiny. If it proves to be an obstacle, you can fight abortion on strict scrutiny.
Scalia’s beef with Casey is the bad stare decisis analysis. Plessy and Lochner were
killed, after all. Perhaps Roe gives rights, whereas Plessy went the other way.
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It is difficult to find a middle ground. Pro-life pushes for ridiculous regulation, and
Pro-choice always assumes the legislature has ulterior motives.
Undue standard is pretty much nine Justice voting.
What about the legislature making findings?
With Carhart, we see the Court pretty much pulling a Grutter on the partial-birth
abortions. Kennedy declares it isn’t vague, it isn’t an undue burden because there are
other options, the legislature can make a decisions when there is “dispute” in the
expert community. Basically, we see Kennedy acting like this is rational basis by
allowing one step at a time, by doing a weird assessment of the burden, by deferring
to the legislature, by sticking to stereotypes. It blurs the boundary twixt viability and
post viability—it would have been better to declare that rational basis applies from
now on.
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