Calder v Bull (p. 437)

Let's start today's class with a discussion of Calder v. Bull, a case from 1798 that features an interesting debate between Justice Chase and Justice Iredell about natural law and unenumerated liberties in the Constitution of 1789.

Justice Chase proposes that the Court should protect individuals against State legislatures based upon “great first principles of the social compact” and  “ general principles of law and reason.” p. 437-438 What are the terms of the social compact? What are the general principles of law and reason?

 Justice Iredell disagrees with Chase and argues that the Supreme Court is without power to strike down state legislation based upon its view of natural justice: "[S]ome speculative jurists have held that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any court of justice would possess a power to declare it so..." (p. 439)

Whose idea of “natural justice” should be adopted by judges?  Theirs?  That of the State legislature whose law is being challenged?  Mine?  Those recognized by the faculties of elite law schools?  “Sez who?”  P. 408

What does this ancient debate between Chase and Iredell remind you of?

Corfield v Coryell (p. 439)

Here is how one commentator sets the scene for Corfield:

 Corfield is best understood as presenting a “tragedy-of-the-commons” problem. In1820, New Jersey enacted a statute restricting the harvesting of oysters within state waters to prevent exhaustion of a natural resource. Oyster harvesting was barred from May until September, and during the rest of the year only state residents were allowed to take oysters from state waters. The plaintiff in Corfield, who was not a New Jersey resident, was the owner of a vessel that conducted oyster harvesting in state waters and was manned by crew who were also not state residents.

Under the Privileges and Immunities Clause of Article IV, may state A restrict Oyster harvesting in the state to State A residents? Or must State A allow citizens of State B to harvest Oysters in State A? What might happen to the Oysters of New Jersey if all comers were allowed to harvest them during the season? Is this what the commentator means when he calls this case a "tragedy-of-the-commons" situation?

What are the Privileges and Immunities protected by Article IV? How did the Court define them?

See casebook page 439-440.

Barron v. Mayor of Baltimore (p. 441)

Barron brought a Takings claim against the City of Baltimore for damage caused to his property as a result of municipal street construc­tion. The issue was whether the Bill of Rights (and in particular the Takings Clause of the 5th Amendment) restricts State and Local government action.

 Chief Justice Marshall delivered the opinion of the Court and con­cludes that the Bill of Rights is not a limitation on the power of state governments.

P. 441: He says the issue is clear.  It is “of great importance” but “not of much difficulty.” What is the basis for his certainty?

Purpose:  The purpose of the Constitution was to es­tablish and limit the national government.  State government already existed and the people of each State had already enacted state constitutions providing “such limitations and restrictions on the powers of its particular government as its judgment dictated.” (P. 441).

Text:  “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have . . . expressed that intention.” (P. 442).  

History:  Marshall says that “it is universally under­stood” that historically the Bill of Rights was adopted “to guard against the abuse of power” by the new national government.  “These amendments demanded security against the apprehended encroachments of the general government – not against those of the local governments. (P. 442).

And yet today the typical Bill of Rights case involves a person defending his free speech rights against state laws restriction freedom of speech, or a criminal defendant seeking his Fourth Amendment rights against a state criminal prosecution, or a landowner seeking his rights under the Takings Clause against a state law taking his property with just compensation. How is that possible?

Privileges and Immunities Clause of Article IV (the Comity Clause)

Privileges and Immunities Clause of Article IV

          Article IV generally is designed to ensure that the United States is one Nation and that state sovereignty should not be so extreme as to destroy national identity. 

          Article IV, §2 provides:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

The purpose of this provision is to protect the citizens of State A from being treated like non-citizens, like foreign nationals, when they visit State B.  It's like a special kind of equal protection clause protecting citizens of one state when they visit another state. 

State B must treat citizens of State A as welcome visitors to a sister state. The Court has said that when State B discriminates against citizens of another state the issue is whether the interest is "sufficiently fundamental to the promotion of interstate harmony." 465 U.S. at 218. 

Due Process: Procedural and Substantive

 Students often tell me that they are struggling to understand "substantive due process." That is natural, because the idea of substantive process, to quote Justice Scalia, is "babble." 

The Due Process Clause of the 5th Amendment provides that no person shall be "deprived of life, liberty, or property, without due process of law." 

According to one commentator, “Procedural due process concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property." Thus, courts need to focus on  "What procedures satisfy due process?" Basically, due process requires a fair trial, including notice, an opportunity to respond or to defend yourself, and "an impartial tribunal."

Once a person is given fair procedures, his life, liberty, or property may indeed be deprived under laws, such as criminal laws, tort laws, and other duly-enacted laws.

However, the Supreme Court has a long and controversial history of reading substance into the Due Process Clause, as it did infamously in Dred Scott.

Here is how one source defines Substantive Due Process: 

"The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given." 

Thus, in Dred Scott the Supreme Court held that the Missouri Compromise was uncon­stitutional and that any congressional action to emancipate slaves would violate the substantive due process protections for a slave­holder and his right to travel with his property. A slaveholder’s liberty to bring his human property into a U.S. Territory was substantively protected by the Due Process Clause. 

Again, "substantive process" seems like a contradiction in terms. But it is a doctrine that allows the Court to read new substantive rights into the Constitution, and then to treat those rights as highly protected liberties that may not be taken even with fair procedures. It is as though the Court has judicially amended the Constitution to provide that "No liberty deemed fundamental by this Court shall be deprived even with fair process." 

So how does substantive due process work? If the due process clause substantively protects liberty from being restricted by government, which liberties are protected? All liberties? What would that produce?

Then only certain liberties, only liberties that are really important or fundamental?  Which of those? The ones I think are fundamental? The ones you think are fundamental? The ones 5 unelected Justices think are fundamental? Sez who?