Con Law 7

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xc. CIVIL RIGHTS xcv. Substantive Due Process w/ Regard to ECONOMIC Rights

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What is the Structure of the Constitution’s protection of civil rights?

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1. The Bill of Rights is incorporated into the 14th Amendment by the due process clause.

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What did Barron v. Baltimore (“5th Amendment claim against the city for recovery of dock being destroyed”) Do? Facts: 1. A wharf owner sued the City for taking his property without just compensation in violation of the Fifth Amendment.

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2. Example on how the BOR did not apply to the states a 100 after this decision.

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What did this case say about the bill of rights? Twining v. New Jersey (“Twining refused to testify; prosecution said jury could infer he was guilty from unwillingness to testify”) Facts: 1. A law providing that a jury may draw an unfavorable inference from a criminal defendant’s failure to testify was challenged under the Due Process Clause of the Fourteenth Amendment.

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2. Affirms Barron 3. However, the language of the opinion opens the door to the possibility that some day the BOR would be applied; if a state violates due process.

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How does the Warren Court overrule Twining?

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1. Due Process Clause includes a number of unenumerated rights (not found in Constitution) [it also includes ENUMERRATED rights from BOR] a. Substantive due process rights i. A woman’s right to choose ii. Contraceptives iii. To be w/ your family b. Procedural due process rights: the government has a procedure before taking away your life, liberty, or property. i. So if the government takes away your children, there are procedures that must be followed. 1. Substantive due process would deal w/ the reasons for why it is taking away your children.

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What did this case do and what did it say about Liberty? Lochner (“law: bakers couldn’t work more than 10hrs a day; freedom of K; infringe economic liberty as part of due process”) Facts: 1. Owner of bakery charged with violating state law restricting number of hours bakery employees could work challenged law on due process grounds.

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2. Liberty would include a number of economic freedoms/rights. 3. The State may infringe this liberty ONLY to protect the health, safety, and morals of the population. a. See Muller (Brandeis brief) i. Such economic substantive due process rights are not absolute ii. Freedom to K may be restricted when it is the public’s interest to protect a woman’s “weak physique” for the well being of society by looking after their health. b. See Weaver v. Palmer i. The Court determined, contrary to the state’s contention of protecting the health of its population, that if there are ALTERNATIVE MEANS to accomplish the same goal of protecting health of public—by sterilizing the shoddy, then the law could not be essential. c. Nebbia v. New York i. The Court UPHELD a state law regulating the safety of milk in the public interest as fundamental to promote the general welfare. d. Even if a state is trying to protect the public in these ways, it has to be necessary—i.e., ESSENTIAL. Not just convenient or reasonable. 4. Finally, Court during this era showed little deference to the states. a. Even if the state says the “magic words” or does its homework, the Court will question it; it is up to the Court to decide. i. Raiche: unlike in this era, Stevens noted the deference of the Court by stating it was up to Congress to make a judgment.

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What are some Criticisms of the Court Lochner Era?

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Criticism of the Court Lochner Era: Nebbia stands out in these decisions. You want the Court to be consistent and not arbitrary—(what is “necessary”?). Federalism: it should be up to the states to decide what is a state interest. An unelected court is striking down leg. that is the will of the people The Court may be seen as taking personal preferences b/c these protected rights are not enumerated in the Constitution; no basis in text, history, or tradition. NOTE: Roe & Griswold vulnerable to same criticism.

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How did West Coast Hotel [Contrary to Lochner; doing away w/ economic rights] demonstrate the Fall of Lochnerism FACTS: Employee sued employer to recover difference between her actual wages and the minimum wage state law required that she be paid.

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2. The Court will uphold a state regulation if the state law has a rational basis to achieve its goal. [also see William v. Lee, opticians out of business; prescription eye glasses] a. The law does not have to be necessary/essential; it just does not have to be arbitrary/capricious/ or makes no sense. b. There just has to be some correlation b/w the purpose of the law and what the law is trying to accomplish. 3. Sometimes a court may invent a purpose to give a side more arguments in its favor—a rational reason to adopt this law. 4. Great deference to the judgment of the legislature. See Raiche a. The legislature is entitled to its judgment even if the court disagrees. The Court will not second guess a legislature UNLESS it has overstepped its bounds.

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How did BMW and State Farm begin to recognize some economic rights? 1. BMW: Consumer who purchased automobile from retailer brought suit for damages upon finding that the vehicle had been repainted prior to sale without consumer’s knowledge. 2. State Farm: After State Farm (D) failed to settle claims against Campbell (P) for its policy limits, Campbell obtained a judgment of $1 million in compensatory damages and $145 million in punitive damages.

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3. Purpose of Punitive damages a. The companies may internalize the cost; a lesson not to engage in egregious behavior b. These damages are also incurred b/c there may be other people who suffered as those bringing in the lawsuit, but did not file one. c. In the end, the Court thinks that even if there are good justifications for having large punitive damages awards, there cannot be big ratios. 4. In both cases the Court says that these damages have gone too far, it violates substantive due process. It includes that you have a right against excessive punitive awards. 5. How do you tell if a punitive damage is excessive?

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How did BMW and State Farm define the Degree of reprehensibility of conduct

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1. In Gore (BMW) there was economic damages, in Campbell (State Farm) there was emotional distress. 2. What is the nature of the injury? a. Economic injury is not as reprehensible as physical injury. 3. It also looks at whether it is a single incident or repeated violation. 4. If there is a disregard to injury. A reckless indifference to health. a. Gore or Campbell would not be the case here. 5. Look at the economic status of victim a. If you’re picking at someone who is poor, those individuals will have less access to lawyers. b. This will look more reprehensible. 6. Look at intentional or incidental a. Negligence isn’t as bad. 7. The degree of reprehensible conduct by Gore is not that bad. ci. Ratio 1. Look at reasonable relationship b/w punitive damages and compensatory damages. 2. Here it is 500 to 1 cii. Compare punitive damages to penalties a state may impose same type of conduct. 1. In State Farm, the state penalty would be $10,000; Gore $2,000

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From U.S. Caroline Products, how does substantive due process clause to trigger a heightened standard of review, something close to strict scrutiny? Facts: Company indicted for violating federal law prohibiting the shipping of adulterated milk products across interstate lines challenged constitutionality of the law.

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Footnote 4: certain types of discrimination, under substantive due process clause are going to trigger a heightened standard of review, something close to strict scrutiny. If you have a state infringing some of your liberties, certain types of discrimination, strict scrutiny applies for fundamental—right to vote or exercise of religion. Economic rights are not entitled to that protection—they will apply the rational basis test. A Court will only strike down economic legislation if it makes no sense at all

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What are the four steps to determine whether you have Protection of Personal Substantive Due Process Rights?

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1) If someone is claiming a right, is this a fundamental right? c. If you say yes, then strict scrutiny applies. d. If not, then the Court will apply rational basis review. 2) Has the right been infringed? 3) Is there a sufficient justification for the state law? a. Are the ends sufficiently important in other words? b. Strict scrutiny applies c. You have to have a compelling purpose i. Like saving somebody’s life ii. This has to be your actual purpose 1. Proof to back up the claim that you are trying to save somebody’s life 4) Are the means sufficiently related to the ends? a. Under strict scrutiny, the means have to be ESSENTIAL b. Rational basis i. The means only have to be convenient—McCulloch.

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What did Buck v. Bell determine about fundamental rights?

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• The state sterilized individuals of lower IQ, and are institutionalized. • The Court holds that you have NO (fundamental) constitutional right to procreate. o Or at the very least that the State had a sufficient justification of doing this.

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What did Skinner v. Oklahoma determine about a particular fundamental right? Facts: • Facts: Objections arose when the State of Oklahoma (P) attempted to use its Habitual Criminal Sterilization Act to authorize the sterilization of an individual who had thrice been convicted of theft-related felonies (one of which involved the theft of chickens).

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• The Court recognizes a FUNDAMENTAL right to procreate (even if you’re a felon) o Why is this a fundamental right to procreate (the 1st Q)? Not looking at precedent or text. This is really important in life. It is part of being a person. o Even if the state violates this right, does the state have a compelling purpose and is the law narrowly tailored to serve that purpose (Qs 3 & 4)? The state’s assumption is that criminal’s genes will procreate more criminals in the future. This is a way of preventing crime—compelling interest. • The Court doesn’t buy it. There is no sufficient purpose and means to serve that interest.

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What are a person's rights under Constitutional Protection for Reproductive autonomy?

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o A right to procreate o A right to purchase and use contraceptives o A right to an abortion

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What is the difference between equal protection and due process?

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o Both stem from 14th o Equal protections right the government should treat all similarly indiv similarly. Claim, you are arguing that the gov has treated you differently who is in the same shoes.o Due process Does the government have the right to take away some of your freedom. If so, the gove has to have a compelling justification and narrowly tailored to meet that end.

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Would this be a substantive or a due process claim? The gov passes a law no white woman can get an abortion.

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• You would have both a substantive due process claim—say Roe justifies get an abortion. • Equal protection: this discriminates on basis of race letting other races.

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Would this be a substantive or a due process claim? Gov subsidizes abortions, but only for woman who are white. ---• You have a non-white woman who won’t be funded.

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o You have no substantive due process claim. You’re out of luck. o But you have equal protection claim, and succeed b/c the law discriminates on basis of race.

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Would this be a substantive or a due process claim? Gov subsidizes abortions, but only for woman who are white. ---• Let’s say it’s on basis of getting an abortion if disabled.

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o Due process: it would likely be a valid due process claim. The gov can’t take away an abortion w/out compelling reason—action be under strict scrutiny. o Equal protection: would probably fail b/c the government action would be held to rational basis scrutiny.