Q2: Civil Liberties and Incorporation Due Process Case Law

Lawrence v. Texas (overturned Bowers v. Hardwick) Justice Kennedy wrote a famous opinion for the court, used Ordered Liberty to defend right for gays to have consensual sex

1. Background: Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, (1986), controlling. 2. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," 3. Explicit use of Ordered Liberty. The decision overturned Bowers v. Hardwick (1986)

Procunier v. Martinez 1974 (Protected the 1st and 5th amendment rights of inmates to petition for redress of grievances. Incorporated the 5th amendment)

Censorship of mail is permitted only to the extent necessary to maintain prison security. Context: Robert Martinez was a prisoner in the California State Prison in San Quentin, California. The California Department of Corrections had regulations which censored mail and which prohibited law students and legal paraprofessionals from conducing interviews with the inmates. Martinez and other prisoners in the California corrections system filed suit against officials in the California Department of Corrections in federal court, challenging the constitutionality of the aforementioned regulations. The district court decided in favor of the prisoners, and the officials from the department of corrections appealed. (1) Should a district court abstain from determining the constitutional validity of administrative rules established by the California Department of Corrections when there were state laws addressing the validity of such regulations? (2) Does the Constitution compel California to give law students and legal paraprofessionals the full range of privileges accorded to attorneys in their meetings with inmates? Ruling: No and Yes. Justice Lewis F. Powell wrote for a unanimous Court and affirmed the lower court's opinion. The Court held that it was proper for the district court to refuse to abstain from deciding the constitutionality of the regulations. The Court further held that the censorship of direct personal correspondence created incidental restrictions on the right to free speech for both prisoners and their correspondents. Therefore, the speech could only be restricted if it furthered a substantial government interest and was narrowly tailored to further that interest. Under this rule, the policy censoring mail was unconstitutional. Justice Thurgood Marshall filed a concurring opinion, which Justice William J. Brennan joined. Justice Marshall emphasized his opinion that the prison authorities did not have a general right to open and read all incoming and outgoing prison mail. Justice William O. Douglas wrote separately that prisoners were still entitled to all constitutional rights which were not curtailed by procedures that satisfied all the requirements of due process.

Adamson v. California(heated debate between Justice Black and Justice Frankfurter) Substantive Due Process

Context: Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in accordance with a California law, made comments to the jury which highlighted Adamson's decision not to testify on his own behalf. Is a defendant's Fifth Amendment right not to bear witness against himself applicable in state courts and protected by the Fourteenth Amendment's due process clause? Ruling: A divided Court found that the the Fourteenth Amendment's due process clause did not extend to defendants a Fifth Amendment right not to bear witness against themselves in state courts. Citing past decisions such as Twining v. New Jersey (1908), which explicitly denied the application of the due process clause to the right against self-incrimination, and Palko v. Connecticut (1937), Justice Reed argued that the Fourteenth Amendment did not extend carte blanche all of the immunities and privileges of the first ten amendments to individuals at the state level. In a lengthy dissent which included a deep investigation of the Fourteenth Amendment's history, Justice Black argued for the absolute and complete application of the Bill of Rights to the states.

Gideon v. Wainwright (right to an attorney) Procedural Due Process

Context: Clarence Earl Gideon was charged in Florida state court with felony breaking and entering. When he appeared in court without a lawyer, Gideon requested that the court appoint one for him. According to Florida state law, however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon filed a habeas corpus petition in the Florida Supreme Court, arguing that the trial court's decision violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief. Does the Sixth Amendment's right to counsel in criminal cases extend to felony defendants in state courts? Ruling: The Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in state court by way of the Fourteenth Amendment. In a unanimous opinion authored by Justice Hugo L. Black, the Court held that it was consistent with the Constitution to require state courts to appoint attorneys for defendants who could not afford to retain counsel on their own. The Court reasoned that the Sixth Amendment's guarantee of counsel is a fundamental and essential right made obligatory upon the states by the Fourteenth Amendment. The Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently waived. Justice Douglas, while joining the Court's opinion, elaborated, in a separate opinion, the relation between the Bill of Rights and the first section of the Fourteenth Amendment.

District of Columbia v. Heller (2008)

Context: DC passed a handgun ban Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment? Ruling: The court held that the state did not have the right to infringe upon its citizens' 2nd Amendment rights to bear arms he ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a "militia" is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term "militia" should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to "guarantee an individual right to possess and carry weapons in case of confrontation." This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment. In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right to possess guns for self-defense purposes. Instead, the most natural reading of the the Amendment is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature's power to regulate nonmilitary use and ownership of weapons. Justice Stevens argued that the Amendment states its purpose specifically in relation to state militias and does not address the right to use firearms in self-defense, which is particularly striking in light of similar state provisions from the same time that do so.

Palko v. Connecticut (1937) Procedural Due Process Case

Context: Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? Ruling: In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938. Provided test for determining which parts of Bill of Rights should be Incorporated - those which are implicitly or explicitly necessary for liberty to exist. Started the use of "selective incorporation"

Griswold v. Connecticut (1965)

Context: In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Ruling: A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void. Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments. Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy. Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.

Slaughter House Cases

Context: Louisiana passed a law that restricted slaughterhouse operations in New Orleans to a single corporation. Pursuant to the law, the Crescent City Live-stock Landing and Slaughter-House Company received a charter to run a slaughterhouse downstream from the city. No other areas around the city were permitted for slaughtering animals over the next 25 years, and existing slaughterhouses would be closed. A group of butchers argued that they would lose their right to practice their trade and earn a livelihood under the monopoly. Specifically, they argued the monopoly created involuntary servitude in violation of the Thirteenth Amendment, and abridged privileges or immunities, denied equal protection of the laws, and deprived them of liberty and property without due process of law in violation of the Fourteenth Amendment. Did the creation of the monopoly violate the Thirteenth and Fourteenth Amendments? Ruling: The Court held that the monopoly violated neither the Thirteenth or Fourteenth Amendments, reasoning that these amendments were passed with the narrow intent to grant full equality to former slaves. Thus, to the Court, the Fourteenth Amendment only banned the states from depriving blacks of equal rights; it did not guarantee that all citizens, regardless of race, should receive equal economic privileges by the state. Any rights guaranteed by the Privileges or Immunities Clause were limited to areas controlled by the federal government, such as access to ports and waterways, the right to run for federal office, and certain rights affecting safety on the seas. Moreover, the Court held that the butchers bringing suit were not deprived of their property without due process of law because they could still earn a legal living in the area by slaughtering on the Crescent City Company grounds. Thus, the Court concluded that the Louisiana law was constitutional. Justice Stephen Johnson Field's dissent argued that the Fourteenth Amendment could not be construed as only protecting former slaves. Rather, he believed that it incorporated strands of common-law doctrine and needed to be interpreted outside the Civil War context. This position would later become widely accepted. This case basically ended using the Privileges or Immunities Clause to protect fundamental liberties. Instead from then on the court would use Substantive Due Process to incorporate and protect fundamental rights

Bowers v. Hardwick

Context: Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? Ruling: No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

Meyer v. Nebraska (1923) - right to educate children before 9th grade in a foreign language

Context: Nebraska passed a law prohibiting teaching grade school children any language other than English. Meyer, who taught German in a Lutheran school, was convicted under this law. Did the Nebraska statute violate the Fourteenth Amendment's Due Process Clause? Ruling: The Court declared the Nebraska law unconstitutional, reasoning it violated the liberty protected by Due Process Clause of the Fourteenth Amendment. Liberty, the Court explained, means more than freedom from bodily restraint. It also includes the right of a teacher to teach German to a student, and the right of parents to control the upbringing of their child as they see fit. While the state has a legitimate interest in encouraging the growth of a population that can engage in discussions of civic matters, the means it chose to pursue this objective was excessive(by using negative law rather than positive law to promote that objective...good point for free response)

McDonald v. Chicago (2010)

Context: Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states? Ruling: Incorporated the 2nd Amendment right to bear arms to the states The Supreme Court held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense. Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.

Pierce v. Society of Sisters (1925): The Court recognized substantive due process right "to control the education of one's children", thus voiding state laws mandating for all students to attend public school

Context: The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Pierce v. Hill Military Academy. Did the Act violate the liberty of parents to direct the education of their children? Ruling: Yes. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

Miranda v. Arizona ("miranda rights") Procedural Due Process

Context: This case represents the consolidation of four cases, in each of which the defendant confessed guilt after being subjected to a variety of interrogation techniques without being informed of his Fifth Amendment rights during an interrogation. On March 13, 1963, Ernesto Miranda was arrested in his house and brought to the police station where he was questioned by police officers in connection with a kidnapping and rape. After two hours of interrogation, the police obtained a written confession from Miranda. The written confession was admitted into evidence at trial despite the objection of the defense attorney and the fact that the police officers admitted that they had not advised Miranda of his right to have an attorney present during the interrogation Does the Fifth Amendment's protection against self-incrimination extend to the police interrogation of a suspect? Ruling: Chief Justice Earl Warren delivered the opinion of the 5-4 majority, concluding that defendant's interrogation violated the Fifth Amendment. To protect the privilege, the Court reasoned, procedural safeguards were required. A defendant was required to be warned before questioning that he had the right to remain silent, and that anything he said can be used against him in a court of law. A defendant was required to be told that he had the right to an attorney, and if he could not afford an attorney, one was to be appointed for him prior to any questioning if he so desired. After these warnings were given, a defendant could knowingly and intelligently waive these rights and agree to answer questions or make a statement. Evidence obtained as a result of interrogation was not to be used against a defendant at trial unless the prosecution demonstrated the warnings were given, and knowingly and intelligently waived. Justice White wrote a separate dissent in which he argued that the Fifth Amendment only protects defendants from giving self-incriminating testimony if explicitly compelled to do so. He argued that custodial interrogation was not inherently coercive and did not require such a broad interpretation of the protections of the Fifth Amendment. Such an interpretation harms the criminal process by destroying the credibility of confessions. Justices Harlan and Stewart joined in the dissenting opinion.

Loving v. Virginia (1967) Both a Due Process and Equal Protection Case

Context: In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment? Ruling: Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. The Court also held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

Mapp v. Ohio (unreasonable search and seizure; incorporated 4th amendment)

Exclusionary Rule: The exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. Context: Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Were the confiscated materials protected from seizure by the Fourth Amendment? Ruling: In an opinion authored by Justice Tom C. Clark, the majority brushed aside First Amendment issues and declared that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in a state court. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. Justices Black and Douglas concurred. Justice Stewart concurred in the judgment but agreed fully with Part I of Justice Harlan's dissent and expressed no view as to the merits of the constitutional issue.

Timbs v. Indiana(incorporated 8th amendment)

Has the Eighth Amendment's excessive fines clause been incorporated against the states under the Fourteenth Amendment? Context: The state charged Timbs with two charges of felony dealing and one charge of conspiracy to commit theft. He later pleaded guilty to one charge of felony dealing and one charge of conspiracy to commit theft in exchange for the state dismissing the remaining charge. After accepting the plea, the trial court sentenced Timbs to six years, five of which were to be suspended. Timbs also agreed to pay fees and costs totaling approximately $1200. In addition, the state sought to forfeit Timbs' Land Rover. The trial court denied the state's action, ruling that the forfeiture would be an excessive fine under the Eighth Amendment, characterizing it as grossly disproportional to the seriousness of the offense. The court also noted that the maximum statutory fine for Timbs' felony dealing charge was $10,000, and the vehicle was worth roughly four times that amount when Timbs purchased it. The trial court ordered the state to release the vehicle immediately. The court of appeals affirmed. Ruling: The Eighth Amendment's Excessive Fines Clause is an incorporated protection applicable to the states. In an opinion authored by Justice Ruth Bader Ginsburg, the Court found that the Excessive Fines Clause finds its origins in the Magna Carta, the historic English Bill of Rights, and state constitutions from the colonial era to the present day. As such, it is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition." As such, the Fourteenth Amendment's Due Process Clause incorporates the Clause against—that is, applies to—the states with equal force as against the federal government. Justice Neil Gorsuch filed a concurring opinion to acknowledge that, in his opinion, the appropriate vehicle for incorporation is the Fourteenth Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. Justice Clarence Thomas filed an opinion concurring in the judgment but expressly disagreeing with the majority's use of the Fourteenth Amendment's Due Process Clause to incorporate, instead finding that the Clause must be incorporated by the Privileges or Immunities Clause.

Mathew v. Eldridge (established a 3 principle test for Due Process) Procedural Due Process

Principle Test: 1. How much the individual stands to lose. For example facing the death penalty in a criminal case(issue of liberty) versus getting your public library card revoked. Much more Procedures and Process involved for facing the death penalty. 2. How much additional information might improve the accuracy of the decision. Debating the extent to which further Procedure is needed. 3. Cost of additional procedural protections. We live in the real world, this stuff costs time and money.

Gitlow v. New York (incorporated 1st amendment right to free speech)

1. Background: Gitlow, a socialist, was arrested in 1919 for distributing a "Left Wing Manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under New York's Criminal Anarchy Law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action 2. The Supreme Court previously held, in Barron v. Baltimore (1833), that the Constitution's Bill of Rights applied only to the federal government. Gitlow partly reversed that precedent and established that while the Bill of Rights was designed to limit the power of the federal government, the incorporation principle allows it to be applied to states. 3. Established precedent of Incorporating Bill of Rights (applying them to the states); states cannot deny freedom of speech --protected through due process clause of Amendment 14 4. For the case, the Supreme Court recognized that the 1st Amendment rights of free speech and press are among the personal liberties protected under due process.