Civil Rights and Liberties Midterm

The Doctrine of Incorporation

This doctrine allowed the federal courts to apply most of the provisions of the Bill of Rights to the States by reading or “incorporating” those protections into the Due Process Clause of the Fourteenth Amendment. Selective incorporation looks at whether guarantees should be granted as applying to the states. Selective incorporation was used for cases such-as Adamson v. California (The Due Process Clause does not fully incorporate the 5th amendment privilege against self-incrimination) and McDonald v. Chicago (ruling the 2nd Amendment right to bear arms is applicable to the states).

Natural or Vested Rights

Liberties whose source was the “doctrine of inalienability” suggested by the Declaration of Independence, or the very nature of republican government, rather than positive law. These principles have force whether or not the Constitution expressly incorporates them. In Fletcher v. Peck this was Justice Johnson’s concurring opinion; he grounds his opinion on a belief in a natural right to property believing that the Contracts Clause is a firm foundation for property rights.

The Rule of Construction

Coming from the majority opinion of Chief Justice Taney in Charles River Bridge Company v. Warren Bridge. The rule of construction is that unless there was language the prohibited subsequent construction you can’t assume protection. You want to have a narrow construction of the contracts clause because a broad construct would preclude subsequent development. Property rights according to Taney have to be understood in light of the rights of the community, you have to rule on the contracts clause narrowly to promote economic development. Ruling in favor of the bridge builder’s property rights would undermine the ability to develop better means of travel.

Procedural Due Process

Held in the Majority Opinion by Justice Waite in Munn v. Illinois and rooted in the fifth and fourteenth amendments. The government can take away someone’s life, liberty, or due process of the law if due process and the proper procedures are followed. As long as the correct procedures are followed the preference is given for states to regulate private property for the public good. Justice Waite held that when we enter civil society we give up some of our rights, as long as due process is followed states may regulate private property for the public interest. Waite is saying that the democratic process is valid.

Substantive Due Process

Substantive Due Process is the principle that the fifth and fourteenth amendment protect fundamental rights from government interference unless it is narrowly tailored to serve a state interest. Substantive due process says that no matter the process you go through there are certain rights so fundamental they cannot be abridged regardless of the procedures used. Lochner v. New York was the first case to argue that a New York law regulating working hours of bakers violated the liberty of contract protected by the Due Process clause as the law failed the rational basis test for determining whether government action was constitutional.

Economic Substantive Due Process

Similar to Substantive Due Process, this envisions an assertive role for the courts to protect individual liberties and for liberties that are not explicitly mentioned in the Constitutions text. The most prominent example is protecting the rights of property and contract. This was the rationale for the majority opinion in Lochner v. New York interpreted through the due process clause of the fifth and fourteenth amendment.

Lochnerize

An action that was created out of the majority decision or ruling in Lochner v. New York. To Lochnerize means to impose the views of the jurists on a question that is considered political or meant to be left to the legislative branch. It is the idea of seizing power from democratically elected legislatures; the court abuses its power through finding support for opinions not supported by the constitutions text. The Lochner court ruled that reasonableness was for judicial interpretation, caused the court to assume the role of “perpetual censor” on state economic activity.

Undue Burden Standard

The Undue Burden Standard was a legal standard established in the majority opinion of Planned Parenthood of Southeastern Pennsylvania v. Casey by Justice O’Connor. The Supreme Court in this decision upheld Roe v. Wade but rejected the trimester framework for determining if an abortion would be allowed. The third prong of the Pennsylvania requirement requiring a wife seeking an abortion to inform her husband of the plans prior to the procedure gave rise to an undue burden. A finding of an undue burden is defined as a conclusion that a state regulation on abortion has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. If the person seeking an abortion of a non-viable fetus could prove that they would endure an undue burden as a result of a state restriction on abortion, then the statute imposing an undue burden would be struck down either entirely or partially. On the other hand, the government could pursue its interest in protecting the health of the pregnant person through statutory restrictions, as long as the government’s interest had a rational relation and did not impose an undue burden. Dobbs held that this was unworkable because the term was ambiguous making it difficult for the courts to apply the standard consistently.

Strict Scrutiny

US v. Caroline Products

Rational Basis Review

Roe v. Wade Justice Rehnquist. Sandra day o’connor lawrence v texas