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Unformatted text preview: Topic 5: The Process of Protecting Rights Protecting
1. 3. Are States Limited by Rights? 2. Which Rights, if So? Are Others Restricted Too? What Rights? First, let’s define rights . . . One issue is whether to frame rights as a license of persons, or as a limit on government A related issue is encountered in discussing the content of rights – are they defined in the context of government processes, or on individual actions and beliefs? The Textual Evidence of Rights I.9 restricting Congress on habeas corpus, bills of attainder, ex post facto laws I.10 restricting states on bills of attainder, ex post facto laws, and impairment of the obligations of K III.2 jury trials for crimes, held in states of crime III.3 defining treason and evidence VI no religious test for holding any office The Bill of Rights The Not included initially as inviting the dangers of omission But fear of silence on rights overcame the fear of omitting some Religion establishment, free exercise, speech, press, assembly, petition Arms, quartering, unreasonable searches and seizures, criminal procedures, due process, takings, civil trials, excessive fines and punishments, FDR’s Third Inaugural -- 1941 FDR’s In the future days which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression everywhere in the world. The second is freedom of every person to worship God in his own way everywhere in the world. The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants everywhere in the world. The fourth is freedom from Fear, which, translated into world terms, means a world wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor anywhere in the world. That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so called new order of tyranny which the dictators seek to create with the crash of a bomb. Do the Constitutional Protections of Rights Bind the States? Rights The first look at this question (a question “not of much difficulty”) by Chief Justice Marshall in Barron: No, the fifth amendment only governs takings by the national government Does the P or I Clause in the 14th Does Amendment Change Things? The Court is pushed in the Slaughter House Cases in 1873 to revisit the question of whether states can take property rights without constitutional restriction 300 butchers sued over New Orleans’ monopolization of slaughter on health and environmental grounds A Sanitary Slaughterhouse Sanitary P or I and Incorporation or The Court nonetheless rules again, but this time 54: No The Court also trivializes the P or I clause But gradually, the answer on constitutional applicability to state law shifts to yes the Civil War and the resulting amendments DID make a difference Is Saenz, 2000, an acknowledgement that the other significance of Slaughterhouse – about the meaning of P or I itself – should be overturned? Was Field’s dissent in Slaughterhouse right? The First Incorporated Rights The Chicago Co.,1897 – takings Twining, 1908 – 14th Am. due process is the vehicle for incorporation Gitlow, 1925 – due process protects speech rights Fiske, 1927 – speech, press, religion Powell, 1933 – Scottsboro trial reversed for lack of effective counsel as a due process right The “Scottsboro Boys” The More Images From Powell Price and Bates The Crowd at the First Trial The The First Jury The Scottsboro Courtroom Spectators Scottsboro New Counsel Liebowitz Appointed Judge Horton and Leibowitz Judge Judge Horton Listens to the Doctor Judge Leibowitz and Patterson Leibowitz Four Released – But Five Remain Four The Incorporation Debate The Total incorporationists (Black most notably) vs. selective incorporationists Palko and Cardozo (selective incorporationists): Does the right flow from a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”? If so, it is should be incorporated against (applied to) state actions More on Which Rights are Incorporated Adamson, 1947 – No incorporated Fifth Amendment right not to testify (Frankfurter, concurring on grounds of practice and precedent, notes “an eccentric exception”) Black: The Bill of Rights applies just as much to state gov’t as to the feds More Recent Additions to the Content of the Incorporated Rights Content Oliver – criminal defendant’s right to public trial Mapp v. Ohio, 1961 – Fourth Amendment freedom from unreasonable search and seizure Gideon, 1963 – 6th Am. Right to Counsel Malloy, 1964 – right to “take the Fifth” Pointer, 1965 – right to confront accuser Klopfer, 1967 – right to speedy criminal trial Washington, 1967 – right to process to obtain witnesses Duncan, 1968 – right to jury trial on criminal charge Williams, 1970 – BUT 6person jury okay for state criminal trial, even though 12 for feds Apodaca and Johnson, 1972 – AND nonunanimous state verdicts okay Also incorporated: 3d am, establishment clause (Wallace, 1985) Black’s Practical Victory Black’s Save for What’s Not Incorporated Note Black’s concurrence in Duncan claiming victory over the selective incorporationists Not (yet?) incorporated: 2d Am, 3d Am., 5th Am. right to a grand jury in criminal cases, 7th Am., 8th Am. Does the Constitution Prevent Others From Violating Rights? Others Is the federal government constrained by the 14th Amendment jurisprudence? Reverse incorporation . . . The current assumption is that the federal and state governments ARE bound to respect most constitutionallyidentified rights But do others (nongovernmental entities and persons) also have to respect those rights? Civil Rights Cases, 1883 no Exceptions to State Action . . . The exceptions were largely presumed to swallow the rule for many decades in the 20th century until the demise of the commerce clause and the “rediscovery” of the Civil Rights cases in U.S. v. Morrison The State Action Doctrine: Only States Bound to Respect Rights Emerged in the Civil Rights Cases “the prohibitions of the [14th] amendment are [only] against state laws and acts done under state authority” Reaff’d in VMI Two consequences of the doctrine: 1. emphasis on other powers and laws to reach private conduct 2. vigorous exploration of exceptions The Public Functions Exception The Marsh, 1946 – company town Jackson, 1974 Terry, 1953 Evans, 1966 Logan Valley, 1968 Lloyd Corp. v. Tanner, 1972 Hudgens,1976 Marsh v. Alabama – company town Key test from Marsh: “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by . . . constitutional rights of [users].” Jackson: el. utility’s decision to end service Traditionally, exclusively, a gov’t function? Public Functions Exception Tests Tests As Applied to Elections As Terry v. Adams – local political party held to be state action Private and public tied together The 15th Amendment as a special factor? Race as a special factor? Evans v. Newton – Macon devise of white only park is state action Logan Valley – shopping center analogous to community Lloyd Corp. v. Tanner – retreat: shopping center can prohibit handbills Hudgens v. NLRB – Logan Valley dead Private Property for Public Purposes Purposes Another Exception: Public and Private Entanglements Private State Authorization, Encouragement, and/ or Facilitation of Private Actors Four main subcategories:
• • • • Judicial actions Regulated entities Subsidized entities Voter initiatives The Entanglement Exception The Shelley v. Kraemer, 1948 Lugar, 1982 Edmonson, 1991 Burton, 1961 Moose Lodge, 1972 Am. Mfrs. Mutual, 1999 Norwood, 1973 RendellBaker, 1982 Blum, 1982 Reitman, 1967 Judicial Entanglement Judicial Shelley v. Kraemer – restrictive covenants No action by state or local legislatures “[T]he Fourteenth Amendment . . . erects no shield against merely private conduct, however discriminatory or wrongful ... But here there was more . . . judicial enforcement” Are all judicial decisions state action? Other Judicial Entanglement Examples Examples New York Times v. Sullivan – all state libel common law decisions must comply with the First Amendment Lugar v. Edmondson Oil – creditor’s use of attachment subject to due process review Edmondson v. Leesville Concrete – civil defendant’s peremptory strikes include “overt, significant assistance of state” actors Highly Regulated Entities Highly Burton v. Wilmington Parking Authority lessee restaurant’s discrimination is state action by entanglement Moose Lodge – liquor license to private club not state action by entanglement Am. Manuf. Ins. Co – workers’ comp insurer decisions not state action by entanglement (compare Jackson) Government-Subsidized Entities Government-Subsidized Norwood v. Harrison – free schoolbooks to race discriminating schools amounts to state action Gilmore v. Montgomery – sports facilities to racesegregating schools amounts to state action by entanglement RendellBaker v. Kohn – firing of teacher at publicly funded private school not state action Blum – patient discharge/transfer decisions at publicly funded nursing home not state action Reitman v. Mulkey – California initiative endorsing no COA for housing discrimination held state action Washington v. Seattle – frustrating school desegregation is state action Crawford v. Bd. of Ed – no need to go beyond constitution to remedy school seg. Romer – initiative against gays violates EP Voter Initiatives Repudiating Rights Entwinement – A New Exception? Entwinement See in the supplement the 2001 case, Brentwood Academy v. Tennessee Secondary School Athletic Association Athletic Association regulated competition between private and public schools alike, and sanctioned Brentwood for recruiting violations Held to be state action as “entwinement” Different from “entanglement” by not requiring governmental prodding? Next Topic: Economic Rights Next ...
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