Incorporation Doctrine

Intermediate Scrutiny

1. BUZZWORDS: "Substantially Related Means" used to achieve "Important Ends" a. Often gender statutes are struck down if the reason is stereotypical in nature ADHOC

iUnder-Inclusive [Loose]

1. Court is likely to say this is OK, as legislatures want to go "one step at a time" a. Unless it involves a fundamental right 2. Ex: Air pollution has many causes (cars, factories, etc....)- legislature could regulate only one or two and exclude others = OK to take a piecemeal approach to a widespread harm

Both Under- and Over-Inclusive [Very Loose]

1. Likely to be struck down depending on degree of over-inclusiveness 2. Legislature over-regulates by including some that do not contribute to the harm, as well as under-regulates by excluding some that do contribute to the harm Ex: Girls driver's license at 16, Boys at 25 -END: Eliminate bad driving -UNDER: Some girls over 16 are bad drivers -OVER: Some boys under 25 are good drivers

Over-Inclusive [Looser Still]

1. Most likely to be struck down 2. There is a def. harm but Legislature over-regulates and affects those that do not contribute to the harm 3. Ex: punish all drivers for bad driving behavior of a few (hurt innocent bystanders)

Completely Irrational [Worst Possible]

1. Never OK - the method chosen never interfaces with recognized harm, such that it is irrational to cure the harm with the chosen trait 2. Ex: sending baby formula to a country with unclean water

Perfectly Rational [Tight]

1. Obviously perfectly OK - but this is very rare 2. Trait chosen perfectly captures all who contribute to the harm, and no more

iii. TIMELINE LEADING UP TO 14th AMENDMENT

1787: Constitution (with 3/5ths Clause) 1808: Banned international slave trade due to sufficient slaves in US 1820: MO Compromise - above 36*30', free states 1833: Barron - no incorporation 1842: Prigg v. PA - uses fugitive slave clause to say that states have no authority at all involving the return of runaway slaves 1850: Compromise of 1850 - added CA + Fugitive Slave Act 1854: Kansas-Nebraska Act (allowed Kansas and Nebraska to choose) 1857: Dred Scott 1860: Abraham Lincoln elected 1861: SC attacks Fort Sumpter

13th AMENDMENT (1865)

Abolished slavery and granted citizenship Southern states ratified 13th Amendment to gain readmission to United States but enacted Black Codes giving blacks no rights Initially, 13th Am. limited to actual bondage. Eventually expanded to "badges and incidents" of slavery. So: 19th century interpretation would NOT have justified CRA of 1866.

Strict Scrutiny Lite

BUZZWORDS: "Least Restrictive/Necessary Means" used to achieve "Compelling Ends" a. Requires laser-like precision of a statute - extraordinarily high threshold EFFECT: "Strict in theory, and strict in fact"

Strict Scrutiny (virtually impossible to defend the statute)

BUZZWORDS: "Least Restrictive/Necessary Means" used to achieve "Compelling Ends" can't interior with others rights a. Requires laser-like precision of a statute - extraordinarily high threshold b. Least impact on protective constituently right possible in order to reach a compelling end EFFECT: "Strict in theory, but fatal in fact" a. Virtually every challenge is successful (every statute falls) b. Another fatal categorical analysis

Rational Basis w/ Bite (Burger/Rehnquist/Roberts court)

BUZZWORDS: "Rational Means" used to achieve "Legitimate Ends" a. Low threshold EFFECT: "Rational in theory, and rational in fact" a. Is disguised as a rational basis review but then there is a highened form of scrutiny i. Often struck down if there appears to be evidence of malice against the group Looked at for disables, trans-sexuals, smokers, HIV positive... ADHOC

Low Level Rational Basis (very easy to defend the statute)

BUZZWORDS: "Rational/Reasonable Means" used to achieve "Legitimate Ends" EFFECT: "Rational in theory, but feeble in fact" BIG PROBLEM a. Categorical analysis by the court: Once you are in this category, you know the outcome b. Practically ANYTHING passes

WEAK SELECTIVE: (Palko v. Connecticut) (Cardozo, 1937)

Convicted twice and challenged on double jeopardy Incorporated those rights implicit in the concept of "ordered liberty" Those rights that are of the very essence of a scheme of ordered liberty - fundamental due to being so rooted in the traditions and conscience of our people Fundamental rights: Speech, Religion, and Assembly You can have freedom without the right of double jeopardy

POSSIBLE INCORPORATION: Twining v. New Jersey (Moody, 1908)

DA commented on D's refusal to testify - D seeks incorporation of 5th Amendment privilege against self-incrimination HELD: 14th amendment specifically were not incorporated, but the rights included in them may exist as part of the "liberties" in Due Process of law Must interpret due process Left possibility of incorporation open through 14th Amendment, but rejected 5th amendment incorporation.

Cruikshank (further weakens 14th Am. as a tool to protect African-Americans in the South)

Disputed election resulted in Colfax massacre - 105 black people and 3 whites were killed. State refused to prosecute - indicted under Federal Enforcement Act (which prohibited murder based on a deprivation of constitutional rights) RULE: Dismissed federal indictments of "private murders" due to a lack of state action - prosecution of KKK was left in the hands of state courts. Court's rationale: -BOR only protected people from national government -13th Amendment: narrowly viewed in that it only applies to actual slavery -14th Amendment: expansive reading of state action requirement -14th amendment could only be used in actions against the state, not private violence

Dred Scott v. Sandford (Taney, 1857)

Dred Scott gained freedom in IL and returned to MO and claims that he is still free. MO Supreme Court changes the "once free, always free" rule in Scott's state court lawsuit - living in a free state has no effect in MO. Scott sues in federal court hoping to get federal common law and ignore this new MO rule ISSUE HOLDING: People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the United States and are not entitled to the protections and rights of the Constitution. although the Framers' language in the Declaration of Independence stated that "all men are created equal," the prevailing negative view of African Americans at the time of the Declaration's drafting meant that the Framers could not have intended those words to apply to African Americans. Reaches this through an ignorance of history a. "White" was changed to "Free Inhabitants" in Art IV Privileges and Immunities b. "We the people" (1787) = includes blacks and whites Effectively prevented future political efforts to deal with the expansion of slavery into the territories, making war virtually inevitable

a. END [Mischief/Benefit]

Goal of statute - considering what the purpose of the statute is: What mischief is it designed to eliminate or what benefit is it designed to achieve

STRONG SELECTIVE PLUS: (Griswold v. Connecticut) (Douglas, 1965)

Griswold arrested for giving info to married persons for preventing conception. statutes prevented using contraception/assisting someone else in using contraception. Griswold alleged statutes violated the 14th Amendment. (Right to Privacy case) Incorporated all rights of American tradition plus SDP gray areas - adds right to privacy as SDP -Lists various (but not all) enumerated rights in the Bill of Rights and adds "marital privacy" to them method that is used today

Slaughter-House (first major interpretation of the 14th amendment)

Louisiana state legislature sought to centralize the location of all slaughtering away from the water supply. It did this by creating the Crescent City Livestock Landing & Slaughter-house Co. (defendant) and gave the company a monopoly over the entire slaughtering business in and around New Orleans. The legislature required all butchers to rent out space from the company and conduct all butchering activities on the premises. butchers claimed this violated 14th Amendment RULE: 14th Amendment P&I clause prohibits states from infringing on rights of federal citizenship, not state citizenship. Slaughters P&I clause. HOLDING: -The rights guaranteed by the United States are very limited and historically do not include civil rights. -Thus, the clause does not apply to protect the Butchers' Benevolent Assn. from the monopoly in the present case. -No precedent supports finding that the Louisiana restraint on butchers constitutes a deprivation of their property without due process of law. -Any state action not specifically directed at emancipated slaves as a class or at the AA will not fall within the restrictions of the Equal Protection Clause. Holding leads to creation of "Substantive Due Process" Doctrine (giving content to "liberty" vs. only "Procedural Due Process") as continuing demands for federal judicial protection against state government behavior are eventually granted

MEANS [Trait]

Method to achieve desired end - looking to see how the chosen method will achieve the purpose of the statute

Non-Interpretavist (Justice Frankfurter):

Natural law tradition, uses reason to determine level of protection (use reason for legal rights) Not about the merits of the rights but whether or not that right is fundamental Whats important for citizen to have liberty

ART IV § 2 PRIVILEGES & IMMUNITIES (life, liberty, and pursuit of happiness)

No State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government Renders the P and I clause irrelevant The 14th amendment was interpreted as to protects rights of federal citizenship and not the general civil liberties This was created because there was a history of denial of civil rights from the states (the black codes) Art IV § 2: Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States -Could provide a federal judicial forum if a state was discriminating against out-of-state residents

Barron v. Baltimore (Marshall, 1833)

P filed an action against a city because the city construction damaged his wharf ISSUE: Does the 5th Amendment limit states as well as federal government (specifically the Takings Clause) HOLDING None of the guarantees of the federal bill of rights limited state or local governments Text does not say whether the BOR constrains states Federal constitution was created for the federal government so If people want a state remedy - the remedy is at the state level Historical: BOR was signed to protect against federal government control, not local/state control

14th AMENDMENT (1868)

PURPOSE Provides a federal judicial forum to enforce federal constitutional rights against state officials Historically, states controlled extent of liability for violating civil rights of citizens in state courts - needed newly free slaves to have a forum to enforce federal protections against state laws RIGHTS CREATED P&I Considered to be most important Rep. Bingham: P&I include 8th amendment BORs, so doesn't take away any state rights Intended to address black codes *Enforcement - § 5: Congress has the power to enforce, by appropriate legislation, provisions of this article DRAFTING: establishes textual protection not to have rights invaded by the states -Required ratification for readmission into US - otherwise it would have never passed in the South

STRONG SELECTIVE: (Duncan v. Louisiana) (White, 1968)

Right to Jury Trial Incorporated those rights that are among those fundamental principles of liberty and justice which lie at the base of our civil and political institutions -Virtually includes all BoR There is a strong presumption that the Bill of Rights that it should be applied to the states

Incorporation

Taking rights that existed against the federal government and adding clarity to the vague language found in the 14th Amendment Specifying which rights existed against the states as well as the federal government Incorporating a FEDERAL SHIELD against STATE SWORDS

Interpretavist (Justice Black):

textual/positive law proponent, where "liberty" is congruent to the bill of rights = total incorporation Find expression of law in the meaning of the word liberty should be exactly congruent to the bill of rights (total incorporation)