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ConLawI CL2APP4 1 19

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ConLawI CL2APP4 1 19

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  1. LEGAL PHILOSOPHY – REJECTING THE FRUITS1. NATURAL LAW – GOD OR STATE OF NATURE – UNENUNCIATED RIGHTS – MANY. FREDDIE KRUGER.2. LEGAL POSITIVISM – LAW IS EXPRESSION OF WILL OF SOVEREIGN. WRITING AND INTENT.3. LEGAL REALISM – SUBJECTIVE BIAS. SUBSET OF LEGAL POSITIVISM. 4. LEGAL PROCESS – NEUTRAL PRINCIPLES, CONSISTENCY, LOGIC, PRECEDENT. HATED REALISM5. CRITICAL LEGAL STUDIES – BEYOND REALISM – INTO SYSTEMIC BIAS. COOPTED. MARXIST OVERTONES. CRITICAL RACE, CRITICAL FEMINIST, ETC. DECONSTRUCTION.

  2. ALREADY SEEN COMMERCE CLAUSE USED FOR CIVIL RIGHTS BUT THAT IS THE END OF THE STORY. 1. 13TH AMENDMENT – 1865 CONGRESS ENFORCES A. INCLUDES PRIVATE – REACH = BROAD B. SUBSTANCE LIMITED = SLAVERY2. 14TH AMENDMENT – 1868 CONGRESS ENFORCES A. “NO STATE” – NEED STATE ACTION. LIMITED B. SUBSTANCE BROAD3. 15TH AMENDMENT – 1870 CONGRESS ENFORCESA. GOVERNMENT ELECTIONS – REACH = LIMITED B. SUBSTANCE NARROW – VOTING.

  3. GENERAL 1. 13 AND 15 SPECIFICALLY RACE – 14 RACE + MUCH MORE.2. PRIVATE ACTIVITY = 13TH AMEND OR COMMERCE CLAUSE. 3. SELF-EXECUTING v STATUTORY BASIS. 13, 14 AND 15 ARE ALL BOTH.CIVIL RIGHTS STATUTES - 8131. 1981 - CONTRACT SAME AS WHITES2. 1982 - REAL AND PERSONAL PROPERTY AS WHITES

  4. 3. 1983 - under color of … (state law), deprives any citizen or person in jurisdiction of any right, privilege or immunity secured by Constitution or laws.14TH AMENDMENT HISTORY (NATURAL LAW INFLUENCE)PRIVILEGES AND IMMUNITIES – 1873 (end)OLD SUBSTANTIVE DP – 1873 – 1937EQUAL PROTECTION - 1941 - PRESENTNEW SUBSTANTIVE DP – 1973 - PRESENT

  5. CIVIL RIGHTS CASES (1883 – 814)BLACKS EXCLUDED FROM HOTELS, THEATERS AND RAILROADS. 814 – STATUTE – SIMILAR TO MODERN STATUTE.BRADLEY1. 14TH AMENDMENT LIMITED TO STATE ACTION. CONGRESS CAN ONLY LEGISLATE ON CORRECTING STATE LAW. IF INDIVIDUAL ACTS WRONGFULLY, REMEDY IS AT STATE LAW 815. PROBLEM – PLESSY.2. NO ASSERTION STATUTE = COMMERCE CLAUSE

  6. 3. 13 AMENDMENT - REACHES PRIVATE ACTIVITY AND CAN REACH ALL BADGES AND INCIDENTS OF SLAVERY. 816.4. THIS DISCRIMINATION IS NOT A BADGE OR INCIDENT OF SLAVERY. MERE CITIZEN AND NOT SPECIAL FAVORITE OF THE LAW.HARLAN 1 (D)BADGE AND INCIDENT COVERS THIS – ELIMINATION OF SLAVERY = REMOVE ALL DISCRIMINATION BASED ON RACE.

  7. BARRON v BALTIMORE (1833 – 426)BARRON SUED CITY FOR RUINING HIS WHARF. CLAIMED VIOLATED 5TH AMENDMENT - NO PUBLIC TAKING WITHOUT JUST COMPENSATION.MARSHALLCONSTITUTION DECLARES POWER OF FEDERAL GOVERNMENT. LIMITATIONS EXPRESSED THEREIN ON FEDS. NO SUCH RESTRICTIONS APPLY TO STATES UNLESS EXPLICIT. CONVENTIONS CONCERNED WITH FEDS.

  8. THIRTEENTH AMENDMENTJONES v ALFRED MAYER CO. (1968 – 843)843 – FN – 1982. P ALLEGED D HAD REFUSED TO SELL BECAUSE HE WAS BLACK.STEWART 1. STATUTE BANS ALL DISCRIMINATION – PUBLIC OR PRIVATE. VALID UNDER 13TH AMENDMENT. CONGRESSIONAL INTENT AT TIME OF PASSAGE.

  9. 2. 844 - QUOTE. CONGRESS CAN ELIMINATE BADGES AND INCIDENTS OF SLAVERY. CONGRESS ONLY NEEDS A RATIONAL BASIS FOR DETERMINING IF RELATED TO SLAVERY.3. 844 - FAMOUS QUOTE. OVERRULES RESULT IN CIVIL RIGHTS CASES.HARLAN (D)STATUTE AS WRITTEN NOT MEANT TO REACH PRIVATE ACTIVITY – GOVERNMENT ACTION IMPLIED IN WORD RIGHT.

  10. IS JONES AN IMPORTANT CASE ?WHAT IF SELLER DOESN’T GIVE REASON ?IS 13TH AMENDMENT LIMITED TO AFRICAN-AMERICANS ?SULLIVAN v LITTLE HUNTING PARK (1969 – 845)HOMEOWNERS ASSOCIATION OPERATED COMMUNITY PARK. MEMBER WHO RENTED COULD ASSIGN SHARE . SULLIVAN LEASES TO FREEMAN (BLACK). BOARD REFUSED TO APPROVE. SULLIVAN EJECTED FOR PROTESTING.

  11. DOUGLAS1. CAN SUE UNDER 1982 – INTERFERES WITH ABILITY TO LEASE.2. NOT A PRIVATE SOCIAL CLUBRUNYON v MCCARY (1976 - 845)1981 PROHIBITS PRIVATE COMMERIALLY OPERATED NON SECTARIAN SCHOOLS FROM DISCRIMINATING.

  12. 1. FIRST AMENDMENT RIGHT TO HAVE SCHOOLS THAT BELIEVE IN SEGRAGATION BUT NOT TO PRACTICE IT. 2. NOT PRIVATE – PUBLIC ADVERTISING FOR STUDENTS.14TH AMENDMENT – THE STATE ACTION DOCTRINECIVIL RIGHTS CASES ESTABLISHED PRINCIPLE. HERE TRYING TO INCLUDE PRIVATE INDIVIDUAL WITHIN 14TH AMENDMENT REQUIREMENTS ON GROUNDS EQUIVALENT TO STATE. WHY LESS IMPORTANT IN 2019 ?

  13. TWO DIFFERENT LINES OF ANALYSIS:1. PUBLIC FUNCTION – PRIVATE ACTING LIKE STATE. 2. NEXUS, CONTACTS, ENCOURAGEMENT OR AUTHORIZATION - RELATIONSHIP BETWEEN PRIVATE DISCRIMINATOR AND STATE.PUBLIC FUNCTIONMARSH v ALABAMA (1946 - 818)PRIVATE TOWN ARRESTED JEHOVAH’S WITNESS FOR TRESPASS. D CLAIMED FIRST AMEND. TOWN ANSWER ?

  14. BLACK1. NO QUESTION FIRST AMENDMENT APPLIES IF AN ORDINARY TOWN (GOVERNMENT). 2. NOT LIKE A PRIVATE HOME. OPERATED PRIMARILY TO BENEFIT PUBLIC AND OPERATION = PUBLIC FUNCTION.COULD ENFORCEMENT OF TRESPASS LAWS BE STATE ACTION ?TENNESSEE ERNIE

  15. EVANS v NEWTON (1966 - 819)PARK IN MACON – WILL OF SENATOR BACON IN 1911. WHITES ONLY. AFTER BROWN, CITY RESIGNS AS TRUSTEE AND PRIVATE TRUSTEES CONTINUE. DOUGLAS1. NO CHANGE IN MUNICIPAL MAINTENANCE AND CONTROL.2. PARK TRADITIONALLY SERVES COMMUNITY – LIKE FIRE OR POLICE. LIKE COMPANY TOWN, PREDOMINIATE CHARACTER AND PURPOSE = MUNI

  16. AMALGAMATED FOOD UNION v LOGAN VALLEY (1968 - 819) PRIVATELY OWNED MALL IS A STATE ACTOR FOR PICKETING PURPOSES (FIRST AMENDMENT).A CHANGE OF DIRECTION JACKSON v METROPOLITAN EDISON (1974 - 820)PRIVATE UTILITY LICENSED AND REGULATED BY STATE. CUT OFF POWER FOR NON PAYMENTARGUMENT FOR MRS. JACKSON ?

  17. 1. ONLY STATE ACTION IF PRIVATE EXERCISING POWERS TRADITIONALLY EXCLUSIVELY RESERVED TO THE STATE.MARSHALL DISSENT – STATE PROVIDES OR HEAVILY REGULATES PRIVATE.HUDGENS v NLRB (1976 - 819)PRIVATE MALL NOT A STATE ACTOR. LOGAN VALLEY IS OVERRULED.FLAGG BROTHERS v BROOKS (1978 - 820)ENFORCING A WAREHOUSEMEN’S LIEN UNDER UCC

  18. ONLY IF TRADITIONALLY EXCLUSIVELY RESERVED TO STATE - EDUCATION, FIRE, POLICE AND TAX (AND COMPANY TOWN). ESSENTIALLY 2019 RULE FOR PUBLIC FUNCTION.CONTACTS, NEXUS, ENCOURAGE, AUTHORIZESHELLY v KRAMER (1948 - 821)RESTRICTIVE COVENANT. WHITE SELLS TO BLACK – NEIGHBORS SUE TO ENFORCE. INJUNCTIVE RELIEF AND DIVESTING TITLEARGUMENT FOR NEIGHBORS ?

  19. 1. AGREEMENTS DON’T PER SE VIOLATE 14TH AMENDMENT AS LONG AS EFFECTUATED BY VOLUNTARY ADHERENCE.2. ACTION OF STATE COURTS AND JUDICIAL OFFICERS = STATE ACTION. FREE TO ACQUIRE TITLE IF STATE COURT HAD NOT INTERFERED. UNDER SHELLEY, CAN BLACKS SUE WHITES IF THEY REFUSE TO SELL BECAUSE OF COVENANT ?BROAD READING OF SHELLEY WOULD DRAMATICALLY EXPAND REACH OF STATE ACTION – ANY COURT ENFORCEMENT WOULD BE STATE ACTION.

  20. BURTON v WILMINGTON PARKING AUTHORITY (1961 - 824)COFFEE SHOP IS LESSEE IN STATE OWNED PARKING GARAGE.1. NEED RENTALS TO PAY BONDS. 2. 824-825 - QUOTE. RELATIONSHIP. DEGREE OF STATE INVOLVEMENT.3. STATE COULD HAVE PUT INTO CONTRACT THAT SHOP COULD NOT DISCRIMINATE

  21. REITMAN v MULKEY (1967 - 826)STATE FAIR HOUSING STATUTE. THEN CALIFORNIA CONSTITUTION AMENDED TO SAY CAN DECLINE TO SELL OR RENT TO ANYONE – OWNER’S DISCRETION. P SUED UNDER STATUTE, D COUNTERED UNDER STATE CONST. P COUNTERED THAT CONST VIOLATES 14TH AMEND1. CONSTITUTIONAL AMENDMENT ENCOURAGED DISCRIMINATION AND MADE STATE A PARTNER. 2. NOT JUST REPEAL OF STATUTE – IN CONSTITUTION ITSELF. AUTHORIZATION OF RACIAL DISCRIMINATION BY STATE. WHEN CAN YOU REPEAL ?

  22. CHANGE DIRECTIONEVANS v ABNEY (1970 - 823)AFTER EVANS v NEWTON, GA S.CT. HELD IMPOSSIBLE TO FULFILL DECEDENT’S WISHES – PARK REVERTS TO HEIRS. P WANTED “CY PRES” TO KEEP AS PARK.1. HARSHNESS COMES FROM SENATOR NOT STATE.2. LOSS OF PARK SHARED BY BLACKS AND WHITES3. CONSTITUTION DOESN’T MANDATE A CERTAIN ANSWER ON QUESTION OF INTENT.

  23. MOOSE LODGE v IRVIS (1972 - 825)CLUB REFUSED SERVICE TO A MEMBER’S BLACK GUEST. ARGUMENTS ?1. 826 - STATE MUST HAVE SIGNIFICANTLY INVOLVED ITSELF WITH INVIDIOUS DISCRIMINATION. NO FOSTER OR ENCOURAGEMENT HERE.2. NOT BURTON – NOT SAME SYMBIOTIC RELATIONSHIP.

  24. JACKSON v METROPOLITAN EDISON (1974 - 828)TURNED OFF SERVICE FOR NON PAYMENT1. 828 - QUOTE. SUFFICIENTLY CLOSE NEXUS.2. P – STATE GRANTED MONOPOLY, APPROVAL OF POLICY MANUAL, AND EXTENSIVE REGULATION. NO – 829 - NOT ENOUGH. MARSHALL (D)830 – QUOTE. ARE THERE DIFFERENT STANDARDS FOR RACIAL DISCRIMINATION THAN OTHER 14 ?

  25. BLUM v YARETSKY (1982 - 831)MEDICAID PATIENTS IN NURSING HOME. DISCHARGE OR TRANSFER WITH NO HEARING.1. EXTENSIVE REGULATION AND FINANCIAL RELATIONSHIP BETWEEN PRIVATE OWNERS AND STATE NOT ENOUGH.2. 831 - COERCIVE POWER OR SIGNIFICANT ENCOURAGEMENT. MERE APPROVAL NOT ENOUGH.

  26. RENDELL-BAKER v KOHN (1982 – 831)PUBLIC SCHOOLS SENT MALADJUSTED STUDENTS TO PRIVATE SCHOOL. STAFF MEMBER FIRED WITH NO HEARING.1. CONTACTS – NO - FUNDING AND REGULATION NOT ENOUGH. 2. PUBLIC FUNCTION – NO – NOT EXCLUSIVE PROVINCE OF STATE.WHAT ABOUT FLAGG LIST ?

  27. LUGAR v EDMONSON OIL (1982 - 833)EDMONSON GOT PREJUDGEMENT ATTACHMENT. HELD FOR 1 MONTH THAN DISMISSED. LUGAR SUED – 1983 – DEPRIVATION OF PROPERTY WITHOUT DP.IS THIS SHELLY OR EVANS/FLAGG ?834- JOINT PARTICIPATION TO SEIZE PROPERTY IS ENOUGH TO MAKE STATE ACTION. STATE HAS CREATED EX PARTE SYSTEM WHICH ALLOWS SEIZURE.

  28. EDMONSON v LEESVILLE CONCRETE (1991 - 834)CIVIL LITIGANT USED PRE EMPTORY CHALLENGES IN JURY SELECTION TO ELIMINATE ON RACE. STATE ACTION834 – GOVERNENT CONTROLS LITIGATION AND PRE EMPTORY/JURY SELECTION SYSTEM.QUINTESSENTIAL GOVERNMENT.DESHANEY v WINNEBAGO COUNTY (1989 - 832)SOCIAL SERVICES LEFT CUSTODY WITH DAD DESPITE REPEATED INCIDENTS OF ABUSE. BRAIN DAMAGE.NOT IN CUSTODY – NO RIGHT TO AID. PRIVATE.

  29. BRENTWOOD v TENNESSEE SECONDARY (2001 – 835)STATE ATHLETIC ASSOCIATION WITH PUBLIC (84%) AND PRIVATE SCHOOLS = STATE ACTOR. BUT NCAA NOT – NCAA v TARKANIAN.HANDOUT – CL 915TH AMENDMENT AND STATE ACTION – THE WHITE PRIMARY CASES (819)ALL WHITE PRIMARY FROM PRIVATE GROUP (STATE CONVENTION) – STILL VIOLATES 15TH AMEND.

  30. PRIMARY IS, BY STATE LAW, PART OF ELECTION PROCESS.CHASING TEXAS:1. STATE LAW EXCLUDES FROM PRIMARIES2. STATE ALLOWS PARTY EXECUTIVE COMMITTEE TO QUALIFY VOTERS.3. PARTY CONVENTION4. PRE-PRIMARY ELECTION OF THE JAYBIRD CLUB.INCORPORATIONDISTINGUISH PROCEDURAL DP (MANNER BY WHICH GOVERNMENT TAKES EG HEARING) WITH SUBSTANTIVE DP (GRANTS RIGHTS EG PRIVACY)

  31. DO FIRST 8 AMENDMENTS APPLY TO STATES ? ON FACE – NO – BARRON v BALTIMORE. DOES THE PASSAGE OF 14TH AMENDMENT CHANGE (LIFE, LIBERTY OR PROPERTY WITHOUT DP) ?APPLYING THE 14TH AMENDMENT TO STATES THROUGH BOTH PROCEDURAL AND SUBSTANTIVE DP = INCORPORATION.CARDOZO, FRANKFURTER AND HARLAN – NATURAL LAW. DP = FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE. FUNDAMENTAL = TRADITIONS AND HISTORY OF ANGLO-AMERICAN JUSTICE. EVEN IF VIOLATION OF 4TH AMEND, CONVICT IF TRIAL WAS OVERALL FAIR. CONSER CRIMINAL, LIBERAL (?) CIVIL.

  32. BLACK AND DOUGLAS. DP = FIRST 8 AMENDMENTS. TOTAL INCORPORATION. NOT FUNDAMENTAL FAIRNESS. APPLY TO STATES SAME AS FEDERAL. LIBERAL CRIMINAL, CONSERVATIVE (?) CIVIL.BLACK THOUGHT HARLAN TOO SUBJECTIVE.HARLAN THOUGHT BLACK IGNORED FEDERALISM (STATES = LABORATORIES) AND DIVERSITY (MORE STATE CRIMINAL CASES) WILL CAUSE WATERING DOWN.MAJORITY ADOPTS HARLAN’S FUNDAMENTAL FAIRNESS LANGUAGE AND THEN, IN A SERIES OF CASES, FOUND MOST OF 1 – 8 AMENDMENTS TO BE PART OF FF. NEVER SAID TOTAL INCORPORATION.

  33. PALKO v CONNECTICUT (1937 - 447)CT ALLOWS STATE TO APPEAL IN CRIMINAL. D CONVICTED OF 2ND DEGREE – SET ASIDE. CONVICTED OF 1ST DEGREE IN NEW TRIAL. D – VIOLATES DOUBLE JEOPARDY (5 AMEND).IF FEDERAL TRIAL, CLEAR 5TH AMEND VIOLATION.447 - QUOTE. NO VIOLATION HERE – JUST TRYING TO GET FAIR TRIAL. (OVERRULED BY BENTON v MARYLAND).

  34. ADAMSON v CALIFORNIA (1947 - 448)PROSECUTOR COMMENTED ON D NOT TAKING STAND.STATE OBLIGATED TO GIVE FAIR TRIAL. UNWILLING TO SAY THIS ISN’T FAIR.BLACK (D) – NATURAL LAW AND FF DEGRADES COURT AND GIVES TOO MUCH POWER TO USSC.FRANFURTER (C) - 449 - QUOTE.ROCHIN - 449 – SUBJECTIVITY. IS BLACK LESS SO ?HISTORY = SCIENCE ?

  35. IN 1960’S, WARREN COURT KEEPS HARLAN LANGUAGE BUT LOOKS TO 1-8 AMENDMENTS.DUNCAN v LOUISIANA (1968 - 450)D = BATTERY – 2 YEAR MAX + $ 300. D WANTED JURY BUT STATE LAW ONLY CAPITAL OR HARD LABOR. D GOT 60 DAYS AND $ 150.450 - INCORPORATED ALREADY.451 - FUNDAMENTAL TO AMERICAN SCHEME, NOT JUST ANY FAIR SYSTEM.

  36. BLACK – 451-452 - SHOULD HAVE BEEN IN PRIVILEGES AND IMMUNITIES CLAUSE.HARLAN (D) – BLACK MORE PHILOSOPHICALLY CONSISTENT THAN WHAT USSC HAS DONE.453 - 454 – CRIMINAL - ALL IN EXCEPT GRAND JURY (5) AND EXCESSIVE BAIL (8). CIVIL – NO 3 AMENDMENT (QUARTERING) OR JURY TRIALS IN CIVIL (7) OR EXCESSIVE FINES (8). WILLIAMS v FLORIDA (1970 - 453)6 PERSON JURY OK FOR BOTH FEDERAL AND STATE UNDER 6TH. HARLAN – WATERING DOWN.

  37. DISTRICT OF COLUMBIA v HELLER (2008 - 454)DC EFFECTIVELY BANNED HANDGUNS. DC = FEDERAL. INVALID – 5 – 4.SCALIA1. INDIVIDUAL RIGHT NOT COLLECTIVE. NOT CONNECTED TO MILITIA SERVICE.2. ARMS HAS SAME MEANING NOW AS 1789.3. TYRANTS TOOK AWAY WEAPONS. PREEXISTING.4. RIGHT OF SELF DEFENSE AND HUNTING.

  38. 5. NOT ANY WEAPON FOR ANY PURPOSE. SOME REGULATION CLEARLY ALLOWED. HERE – TOTAL SUPPRESSION = BAN. INCLUDES HOME.STEVENS (D)1. HISTORY = MILITIA. NOTHING ABOUT LEGISLATURE REGULATING CIVILIAN USE.2. FF DIDN’T CARE ABOUT LIMITING HANDGUNS IN HIGH CRIME URBAN AREAS. CAN STILL HAVE RIFLE AND SHOTGUN.

  39. MCDONALD v CHICAGO (2010 - 457)CITY ORDINANCE EFFECTIVELY BANS ALL HANDGUNS. 4 – 1- 4.ALITO (ROBERTS, SCALIA AND KENNEDY)1. 457 – TEST. SELF DEFENSE – PROTECT HOME AND FAMILY. BLACKSTONE. FUNDAMENTAL.2. SOUTHERN STATES TOOK GUNS FROM BLACKS.3. OTHER COUNTRIES IRRELEVANT – AMERICAN JURISPRUDENCE.

  40. SCALIA – C – DOESN’T LIKE SUBSTANTIVE DP BUT ACCEPTS INCORPORATION.THOMAS – C – DON’T LIKE INCORPORATION THROUGH DP. SHOULD REVERSE SLAUGHTERHOUSE CASES AND RELY ON PRIVILEGES AND IMMUNITIES CLAUSE. STEVENS – D – GUNS HAVE AMBIVALENT RELATION TO LIBERTY. NO RIGHT TO GUN OF CHOICE. OTHER COUNTRIES. STATES HAVE HISTORY OF REGULATION.BREYER (GINSBURG, SOTOMAYOR) D1. SHOULD NOT INCORPORATE 2ND AMENDMENT

  41. 2. 462-463 - FACTORS FOR INCORPORATION. LEGISLATURES BETTER – ALL STATES WITH REGULATIONS.3. BOTH SIDES ARGUING PROTECT LIVES.PRIVILEGES AND IMMUNITIES SLAUGHTER-HOUSE CASES (1873 - 433)LOUISIANA GIVES MONOPOLY TO 1 CORPORATION FOR CATTLE AND LIVESTOCK SLAUGHTERING IN NEW ORLEANS. ALSO PRESCRIBED RATES. P = OUT OF WORK BUTCHERS. ARGUMENTS FOR P ?

  42. ARGUMENTS:1. 13TH AMENDMENT – TAKING AWAY LIVELIHOOD = INVOLUNTARY SERVITUDE.2. 14TH AMENDMENT, PRIVILEGES AND IMMUNITIES OF FEDERAL CITIZENSHIP = FULL NATURAL LAW = RIGHT TO AN OCCUPATION.MILLER1. POLICE POWER INCLUDES REGULATION.2. NOT 13TH – INTENDED TO ABOLISH AFRICAN SLAVERY

  43. 14th AMENDMENT – P AND I CLAUSE3. AFTER WAR, BLACKS HAD NO PATERNAL PROTECTION AND NO TRULY EQUAL STATUS. 14 AND 15 TO EQUALIZE TREATMENT FOR BLACKS.4. REVERSES DRED SCOTT – ALL PERSONS BORN HERE CITIZENS. BUT DUAL CITIZENS – P AND I AS CITIZEN OF US.5. 434 - 435 - ART 4, SEC 2 P AND I – FUNDAMENTAL RIGHTS RECOGNIZED BY STATES. HOWEVER YOU GRANT YOUR OWN CITIZENS MUST GRANT TO CITIZENS OF OTHER STATES IN YOUR BORDERS.

  44. 6. 435 – QUOTE. WAS 14TH AMENDMENT TO CHANGE RELATIONSHIP BETWEEN FEDERAL AND STATE ? NO.7. WHAT IS MEANING OF P AND I ? 436 – LIST. - TWINING v NEW JERSEY(439),FIELD + 3 (D) - 436 – QUOTE – VAIN AND IDLE.THEREFORE, AFTER CIVIL WAR, NO SLAVERY BUT …SLAUGHTER HOUSE 1873 (NO FEDERAL P/I)CIVIL RIGHTS – 1883 (13 – NO B/I; 14 = STATE ACTION)PLESSY v FERGUSON 1896 (SEPARATE BUT EQUAL OK)PRE 1937 – CONGRESS CAN’T USE COMMERCE CLAUSE

  45. SAENZ v ROE (1999 – 440)CALIF CAPPED WELFARE FOR FIRST 12 MONTHS AT FORMER STATE MAXIMUM. CONGRESS REAFFIRMS STATES RIGHT TO DO SO.STEVENS1. 441 - 3 COMPONENTS OF RIGHT TO TRAVEL.1 AND 2 = ART 4, SEC 2. 14TH A = FEDERAL CITIZENSHIP + RIGHT TO BECOME CITIZEN OF ANOTHER STATE.2. NO LENGTH OR PRIOR STATE OF RESIDENCE3. BONA FIDE RESIDENT – CAN’T DETER POOR

  46. 4. NOT LIKE DIVORCE OR COLLEGE – BENEFITS USED IN CALIF, NOT TRANSPORTABLE.5. CONGRESS CAN’T AUTHORIZE 14TH AMEND VIOLATION. 14TH AMEND GIVES RIGHT TO CHOOSE TO BE CITIZEN OF ANY STATE.REHNQUIST (D)NOT TRAVELLING ONCE MOVE. CAN PRESERVE RESOURCES FOR IN STATE THOMAS (D)WELFARE NOT FUNDAMENTAL RIGHT. SLAUGHTER-HOUSE WRONGLY DECIDED .

  47. SLAUGHTER HOUSE CASES ELIMINATE P AND I CLAUSE AS VECHICLE FOR NATURAL LAW. GO TO NEXT CLAUSE – DUE PROCESS1. PROCEDURAL – MEANS OR PROCESS – CRIMINALOR CIVIL (NOTICE, HEARING).2. SUBSTANTIVE A. DEFINE LIBERTY ? (NATURAL LAW) B. HOW MUCH IS DUE ? (TEST)OLD SUBSTANTIVE DUE PROCESSUNENUNCIATED (NON-INTERPRETIVIST) v ENUNCIATED (INTERPRETIVIST)

  48. SOCIAL DARWINISM v SOCIALISM – WHAT IS PROPER ROLE OF GOVERNMENT ?DEFINE LIBERTY = RIGHTS. ALLGEYER – 471 AND MEYER - 492– QUOTE.LOCHNER v NY (1905 – 471)NY LABOR LAW PROHIBITED BAKERS FROM MORE THAN 10 HOURS PER DAY AND 60 HOURS PER WEEK.WHY DID NY PASS THIS STATUTE ?

  49. 1. LIBERTY CLEARLY INCLUDES RIGHT TO CONTRACT.2. 473 – MEANS/END TEST (MCCULLOCH – 81).3. LABOR LAW - BEYOND THE POWER OF GOVERNMENT – INAPPRORIATE PURPOSE. WHY NOT A PROPER PURPOSE ?4. PUBLIC HEALTH – VALID PURPOSE BUT MEANS OF EFFECTUATING NOT RATIONAL. COVERS BATHROOMS PER WORKER, TOILET PAPER. HERE – NO EVIDENCE OF BREAD BETTER OR WORKER MORE HEALTHY IF LESS HOURS. NOT REALLY A HEALTH ORDINANCE.

  50. LOCHNER DUE PROCESS TEST:1. DEFINITION OF RIGHT (INCLUDED IN WORD LIBERTY) – NATURAL LAW – BROAD (ALLGEYER 471 AND MEYER 492)2. TEST (DEFINITION OF DUE) A. PURPOSE (END) – LEGITIMATE OR APPROPRIATE (NARROW) B. MEANS – RATIONALLY RELATED TO PURPOSE (NARROW) C. PRESUMPTION – STATUTE INVALID

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