Introduction [177-178]

 

The Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution have been invoked in a number of distinct contexts to protect various classes or categories of rights. Although it has limits, one classification occasionally used would describe some due process rights as property rights and others as personal rights. Another classifying principle for rights guaranteed by the Due Process Clause involves the distinction between substantive and procedural rights.

 

§7.01   Introduction to the Incorporation Controversy and the Bill of Rights [178-182]

 

The Incorporation Controversy addresses the issue of whether the Fourteenth Amendment incorporates the protections of the Bill of Rights to make them applicable against the states. Before the adoption of the Fourteenth Amendment in 1868, the Supreme Court held in Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833), that the protections found in the Bill of Rights were not applicable against the states. The Fourteenth Amendment reopened the door for the argument that the Bill of Rights should also be applied against the states. The Supreme Court first addressed this argument in the Slaughter-House Cases, 83 U.S. 36 (1872). The majority’s decision in Slaughter-House is still good law today. The Privileges and Immunities Clause of the Fourteenth Amendment remains essentially written out of the Constitution by Slaughter-House.

 

Slaughter-House is important for several reasons. Slaughter-House was the Supreme Court’s first interpretation of the Civil War Amendments, which applied against the states. The Court refused the invitation to redistribute power away from the states and toward the federal government. In particular, the opinion narrowly construed the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment. Most of the decision has since been reversed, and the Court has much more liberally construed the Fourteenth Amendment.

 

§7.02   The Rights of the Accused: The “Incorporation Controversy” [182-189]

 

As the different opinions in Slaughter-House illustrate, the incorporation controversy involves important questions of federalism. Did the Fourteenth Amendment rearrange the powers of the states in relation to the federal government? More specifically, did it reverse the holding in Barron and make the Bill of Rights applicable against the states? Most of the provisions of the Bill of Rights have been applied or incorporated by the Court against the states including: the right to compensation for property taken by the state; the rights of free speech, press and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel; to a speedy and public trial; to confrontation of opposing witnesses; and to compulsory process for obtaining witnesses. The Supreme Court’s use of selective incorporation has come very close to Justice Black’s ideal of total incorporation. In fact, the Court has incorporated all of the procedural protections of the Bill of Rights, namely the Fourth, Fifth, Sixth, and Eighth Amendments, except the Sixth Amendment right to indictment by a grand jury, the Seventh Amendment right to civil jury trial, and the Eighth Amendment protection against excessive bail. It also has not applied to the states the Second Amendment right to bear arms, and the Third Amendment right not to have soldiers quartered in one’s home.

 

Although the Supreme Court has applied most of the specific provisions of the Bill of Rights against the states, a related issue arises as to whether the states will be held to the same standards as those imposed by the federal requirements. In many instances, a majority of the Court has applied the Bill of Rights to the states with the same rules required of the federal government. For example, in Mapp v. Ohio, 367 U.S. 643  (1961) the Court applied against the state government the exclusionary rule remedy that it had previously applied against the federal government. However, in cases involving jury size and unanimous verdicts, the Court has not constitutionally imposed on the states federal statutory requirements, such as unanimous verdicts. A related controversy amplified in a jury decision involves whether federal standards for applying the exclusionary rule should be lowered to make the state standards equivalent.

 

§7.03   Regulation of Business and Other Property Interests [190-215]

 

            [1]  Liberty of Contract Under the Due Process Clauses

 

Substantive due process is the concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government cannot abridge those rights. The basis of substantive due process has generally been the “liberty” clause of the Fourteenth Amendment (i.e., government would be violating a person’s liberty despite the procedural guarantees afforded). Substantive due process requires a broad reading of the word “liberty” in the Due Process Clauses of the Fifth and Fourteenth Amendment. This is the same substantive due process analysis that the Court uses today in such areas as privacy, birth control, and the right to choose an abortion.

 

In Lochner v. New York, 198 U.S. 45 (1905), the owner of a bakery challenged a New York statute that prohibited the employment of bakery employees for more than 10 hours a day or 60 hours a week. Although the statute restricted liberty of contract between the employees and the employers, the bakery owner claimed that the statute violated the employer’s and employee’s liberty of contract to purchase and sell labor. Instead of balancing the interests of the employees against the employers, the Court balanced the contract interests of employers and employees against the interest of New York in regulating public welfare.

 

The liberty of contract right being asserted in Lochner v. New York was a substantive due process right based on the Liberty Clause of the Fourteenth Amendment, not the Contract Clause of Article I, section 10 of the Constitution. Fearing legislative invasion into all aspects of private life, the Court used substantive due process to prevent legislatures from enacting laws that drew lines, with respect to an individual’s freedom, that the Court considered arbitrary.

 

The programs of President Franklin Delano Roosevelt’s New Deal during the 1930s increased the controversy regarding the use of substantive due process to invalidate economic regulation. The Supreme Court used federalism and substantive due process rationales to strike down many key provisions of the New Deal. The victims included the National Industrial Recovery Act, the Agricultural Adjustment Act, and the Bituminous Coal Conservation Act. These invalidated statutes were central components of the New Deal legislative program, designed to combat the Great Depression. The stand off between Roosevelt and the Supreme Court (described by the President as the “Nine Old Men”) resulted in the New Deal constitutional crisis of the mid 1930s. Determined to continue with his legislative program, President Roosevelt, following his overwhelming re-election in 1936, proposed a “Court packing plan” that would have allowed the President to appoint a new Supreme Court Justice for each incumbent who was 70 years old and had served ten years on the Supreme Court. The plan would have provided the President with six new appointments. The plan generated enormous controversy and was criticized by many of the President’s supporters.

 

Disaster was avoided when the Supreme Court made the famous “switch-in-time-that-saved-nine” compromise in the spring of 1937. The shifting votes of Chief Justice Hughes and Justice Roberts enabled the Court to uphold several key New Deal provisions including the National Labor Relations Act and the Social Security Act.

 

In Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955), the Supreme Court established what is now generally agreed to be the current standard of judicial review for economic regulation. The Court stated that “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”

 

In United States v. Carolene Products Co., 304 U.S. 144 (1938), the Court listed areas in which this extremely deferential standard of review would not apply. The footnote explained the Court’s decision to expand its protection of personal rights:

 

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

 

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see ...; on restraints upon the dissemination of information, see ...; on interferences with political organizations, see ...; as to prohibition of peaceable assembly, see ....

 

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Carolene Products, 304 U.S. at 152 n.4.

 

This footnote embodies the political settlement reached as a result of the New Deal Constitutional Crisis; the Supreme Court would curtail its scrutiny of economic rights and expand its scrutiny of more “personal” rights. In effect, footnote four was a blueprint for the modern Supreme Court’s jurisprudence.

 

         There are three basic sets of personal rights at the heart of footnote four: the rights of the accused (amendments four through eight), restrictions on the political process (the rights of voting, association, and free speech), and the rights of “discrete and insular minorities.” Why did the Court retain scrutiny over these areas? Does something make the Court superior to the Legislature in protecting these three types of “personal rights,” but not economic rights?

 

By definition, “discrete and insular minorities” are groups that have historically been unsuccessful at protecting their interests in the majoritarian democratic political process. The same was true for those accused of committing crimes, who appear to be helpless minorities when pitted against the prosecutorial power of the state. Moreover, it was necessary to closely scrutinize restrictions on the political process because that process could not police itself. Most obviously, political “in groups” could attempt to exclude political “out groups” in order to solidify their power. When this occurred, the political process needed a neutral referee: “the referee is to intervene only when one team is gaining unfair advantage, not because the ‘wrong’ team has scored. Our government cannot be said to be ‘malfunctioning’ simply because it sometimes generates outcomes with which we disagree, however strongly.” John H. Ely, Democracy and Distrust 103 (1980). All three of these interests require the protection of a counter-majoritarian institution that could check the interests of the majority.

 

The legislature is elected by a majority of the people, which makes it well-suited to protect majoritarian and utilitarian interests. Because the long-run distribution of societal wealth is a utilitarian issue, it is the proper realm of the legislature that was structured to reflect the greatest good for the greatest number. Federal judges are noticeably removed from the majoritarian political process; they are appointed for life. This makes the courts functionally superior to the legislature in protecting the interests of “discrete and insular minorities,” and the political process itself. Therefore, courts were deemed better suited to protect counter-majoritarian “personal” rights.

 

The modern Court has not abandoned safeguarding property rights. Most notable is the guarantee of just compensation when government takes private property. The modern Court also affords very limited protection to liberty of contract.

 

            [2]  Economic Regulation and the Contract Clause of Article I, Section 10

 

In Exxon Corp. v. Eagerton, 462 U.S. 176 (1983), the Court rejected a Contract Clause challenge to an act prohibiting oil companies from passing on several taxes to consumers, even though pre-existing contracts required consumer absorption of such tax increases.

 

            [3]  Government Takings of Property Requiring Just Compensation

 

The Fifth Amendment’s guarantee against taking without just compensation was one of the earliest constitutional protections of economic rights incorporated into the Fourteenth Amendment. The Fifth Amendment does not prohibit government takings of property, but only requires just compensation. The easiest way to find a taking is through government occupation or expropriation of property for itself. Physical invasions can comprise takings even if government does not expropriate the property for itself. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Court found that cable television companies’ permanent encroachments on rental property were takings, even though the physical invasion of the apartment house only consisted of cables less than ½ inch in diameter and had a minimal economic impact on the owner. A permanent physical occupation caused by the government is basically a per se taking.

 

A taking need not be a complete physical occupation of the property to be compensable, although government appropriation of property for its own use is more likely to result in a taking. To the extent that regulations diminish the value of property, they could be deemed takings requiring just compensation. Widespread use of regulatory takings would increase the cost and thereby severely impair government’s ability to regulate. It could also re-institute Lochner-type problems of severely circumscribing government regulations. Perhaps, for this reason, the Court has been reluctant to find regulatory takings.

 

In the area of land use regulation, however, the Court has increased scrutiny in the context of regulatory takings that have some elements of physical impairment or invasion. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Court held that conditioning a building permit on a landowner’s grant of a public easement across his land constituted a taking. The Court found that the government had not established a nexus between a legitimate governmental objective of nondevelopment and the means of exacting the easement.

 

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court specified two per se rules in which regulatory takings automatically required compensation. One was the Loretto situation of physical invasion of property. The other was depriving property owners of “all economically beneficial uses” for their property. Id. at 1016.

 

            [4]  Economic Penalties

 

A final area of the Court’s economic rights jurisprudence involves excessive penalties. In State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003), the Court held that an award for punitive damages that totaled 145 times the amount of compensatory damages was disproportionate and violated the Due Process Clause.

 

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), imposed three guideposts that are used to determine whether an award is grossly excessive. The first was that a state may not assess punitive damages for unlawful conduct that occurs outside its jurisdiction. The second Gore guidepost indicates that an award of more than four times the amount of compensatory damages moves close to the limit that would constitutionally be allowed. The Gore Court referred to a legislative history that spans the past 700 years that allowed for awards meant to deter and punish worth 2 to 4 times the amount of damages. Although this history is not a strict guideline, it is instructive. The third guidepost discussed in Gore allows the Court to look to penalties in similar cases.

 

§7.04   Liberty in Procreation and Other Personal Matters [215-241]

 

            [1]  The Childbearing Decision: Contraception and Abortion

 

Griswold v. Connecticut, 381 U.S. 479 (1965), was significant because many scholars viewed the decision as a return to the substantive due process analysis disavowed by the Court in the post-Lochner era. In Griswold, administrators of the Planned Parenthood League of Connecticut were arrested and charged under state statutes prohibiting the use or provision of contraceptives. Writing for the majority, Justice Douglas refused to rely explicitly on substantive due process analysis, asserting that the Court does not sit as a “super-legislature” to review legislation on social and economic matters. Instead, Justice Douglas argued that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Id. at 484. Specifically, the First Amendment Right of Association, the Fourth Amendment protection against unreasonable searches, the Fifth Amendment protection against self-incrimination, and the Ninth Amendment combined to create a “zone of privacy” impenetrable by government. Based on this “penumbras” analysis, Justice Douglas held that the statutes in Griswold were overbroad in infringing on the privacy of the marital relationship. In prohibiting the use of contraceptives (as opposed to their manufacture or sale), the law appeared to allow police to search the marital bedroom for evidence of contraceptives.

In three separate concurrences, Justices Goldberg and White agreed with Justice Douglas’ conclusion that the Griswold statutes were unconstitutional, but their analyses differed. Justice Goldberg, joined by Chief Justice Warren and Justice Brennan, used the Ninth Amendment to support his position that the Fourteenth Amendment Due Process Clause protected a fundamental right to “marital privacy.” Justice Goldberg found substantial historical problems with using the Fourteenth Amendment to incorporate the Ninth Amendment against the states, as the Framers had intended the Ninth Amendment to limit the power of the federal government, not the states. Instead, he construed the amendment as expressing the exhaustive list of fundamental rights. In finding a right of marital privacy, Justice Goldberg looked to “‘the traditions and [collective] conscience of our people’” to determine whether the principle was “‘so rooted [there] ... as to be ranked as fundamental.’” Id. at 487 (quoting Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105 (1934)).

                       

Critical to the Court’s modern substantive due process jurisprudence are the cases involving a woman’s right to choose an abortion. The first case to guarantee that right was Roe v. Wade, 410 U.S. 113 (1973). The Texas statute invalidated in Roe made it a crime to procure or attempt an abortion except to save the life of the mother. The reasoning of Roe applied to a much broader range of abortion restrictions than those in this fairly restrictive statute. In Doe v. Bolton, 410 U.S. 179 (1973), a companion case to Roe decided the same day, the Court invalidated a Georgia law based on the new Model Penal Code’s provisions regarding abortion. The Georgia law restricted abortion except to protect the life or health of the mother, to prevent the birth of a fetus with a serious birth defect, or to end a pregnancy resulting from rape.

In Roe, Justice Blackmun premised the right to choose an abortion on the constitutional right of privacy which deprived from the concept of personal liberty in the Due Process Clause. In describing the scope of modern substantive due process, the Court relied on the Palko v. Connecticut, 302 U.S. 319 (1937), formulation of rights that are “fundamental” or “implicit in the concept of ordered liberty.” Id. at 324. The ambit of these rights extended to marriage, procreation, contraception, family relationships, child rearing, and education.

 

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the majority formally adopted an “undue burden” standard, while reaffirming the essential meaning of Roe. In so doing, the majority rejected the heightened “strict scrutiny” standard to state regulation of abortion. The majority also rejected Roe’s trimester framework, allowing the state to impose abortion regulations that would have been overruled under this framework, although prior decisions had clearly reached this point.

The plurality rejected Roe’s trimester framework due to its unnecessarily rigid character and its diminishment of the importance of the substantial state interest in potential life that existed throughout the pregnancy. Instead, the Court adopted an “undue burden” standard posited by Justice O’Connor in earlier dissenting and concurring opinions. Under this approach, a regulation was unconstitutional if it unduly burdened a woman’s right to choose an abortion. A regulation imposed an undue burden if “it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 876.

 

In applying the undue burden standard to the Casey statute, the plurality upheld three of the four challenged provisions. They upheld the 24-hour waiting period and the requirement that a woman must certify in writing that her physician had informed her of the availability of state-published materials describing the fetus, medical assistance for childbirth, paternal child support, adoption agencies, and other abortion alternatives. A majority of Justices struck down the requirement that a woman certify in writing that she had notified her spouse of her abortion. Alternatively, a woman could certify that another man impregnated her, that her husband could not be found, that the pregnancy resulted from spousal sexual assault, or that such notification would subject her to the danger of physical assault. In light of the district court’s findings of spousal abuse surrounding pregnancy, the requirement was unconstitutional.

 

The Casey Court upheld the parental consent provision, requiring the informed consent of one parent. This provision included an exception for medical emergencies and allowed “judicial bypass” if a determination could be made that the minor seeking an abortion had given informed consent, and that the abortion was in her best interest.

 

With the exception of disclosure of spousal notification, the provision requiring abortion providers to keep records was upheld. While preserving the confidentiality of the woman’s identity, the provision required identification of the treating and referring physicians; the woman’s age, prior pregnancies, and prior abortions; fetal weight and age; the date of the abortion and the procedure used; medical conditions that might complicate the abortion or medical complications from the abortion; when applicable, the basis for determining that the abortion was medically necessary; and the woman’s marital status. Abortion facilities were required to report quarterly the number of abortions on their premises by trimester. The plurality found maintenance of such records advanced the state interest in health and posed no substantial obstacle to the right to abort.

 

            [2]  The Family Relationship