Constitutional Law II Fall 2006

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Constitutional Law IIFall 2006

• Professor West-Faulcon

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I. Introduction
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(No Transcript)
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The Bill of Rights and Civil War Amendments Offer
Greatest Individual Rights Protections

• The Original Constitution
• The Bill of Rights (1st thru 10th Amendments)
• Civil War Amendments (13th, 14th 15th
  Amendments)

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The Big Substantive Topics in this Class are

• Due Process (Substantive)
• Equal Protection
• Freedom of Speech
• Freedom of Religion

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Other Issues Crucial to the Substance of
Individual Rights are

• State Action
• Applying the 13th 14th Amendments to private
  action
• Incorporation of B of R to states
• Congress 14th Amendment Enforcement Power

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Course Organization

• I. Introduction
• II. State Action
• III. Privileges Immunities
• IV. Incorporation
• V. Applying 13th14th As to Private Action
• VI. Economic Due Process
• VII. Right to Privacy
• VIII. Economic Equal Protection
• IX. Race The Constitution
• X. Suspect Classes
• XI. School Desegregation
• XII. Intent Requirement
• XIII. Gender
• XIV. Alienage

• XV. Non-Marital Children
• XVI. Affirmative Action
• XVII. Rational Basis Plus
• XVIII. EP Fundamental Rights
• XIX. Congressional Power to Enforce the 14th
  Amendment
• XX. Speech I Content-Based Restrictions
• XXI. Speech II Less Protected and Unprotected
  Speech
• XXII. Speech III Public Forum Doctrine and
  Content- Neutral Restrictions
• XXIII. Religion I Establishment
• XXIV. Religion II Free Exercise
• XXV. End

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Major focus of this course is on just two
provisions of the U.S. Constitution

• The Fourteenth Amendment
• The First Amendment

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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Sections 2, 3, and 4 address issues of national
  importance in the 1860s regarding voting,
  representation in Congress and Civil War debts.

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The 14th Amendment

• Section 5.
• The Congress shall have the power to enforce,
  by appropriate legislation, the provisions of
  this article.

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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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Six Modalities of Constitutional Interpretation

• 1) Historical
• 2) Textual
• 3) Structural
• 4) Doctrinal
• 5) Ethical
• 6) Prudential
• Constitutional Interpretation, Philip Bobbitt
  (1991).

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State Action
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Civil Rights Cases
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The 14th Amendment

• Section 1.
• All persons born or naturalized in the United
  States, and subject to the jurisdiction thereof,
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizenship of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.

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The 14th Amendment

• Section 5.
• The Congress shall have the power to enforce,
  by appropriate legislation, the provisions of
  this article.

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The 13th Amendment

• Section 1.
• Neither slavery nor involuntary servitude,
  except as a punishment for crime whereof the
  party shall have been duly convicted, shall exist
  within the United States, or any place subject to
  their jurisdiction.
• Section 2.
• Congress shall have the power to enforce this
  article by appropriate legislation.

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Public Function Cases

• The White Primary Cases (Nixon v. Herndon)
• Marsh v. Alabama
• Evans v. Newton
• Flagg Brothers v. Brooks

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Make Sure You Take Away (Class Summary)
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Class Summary

• I. Introduction
• A. Diff btw Con Law II Con Law I
• B. Overview of topics
• II. State Action
• A. Intro
• B. Public Function Doctrine

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Next Class Assignment

• Review reading we did not cover
• Text 1165-1178
• Text 1180-1191 (minor change from web)
• Burton v. Willington Parking Authority
• Moose Lodge
• Jones v. Alfred H. Mayer Co.