Holding: Court upholds right of plaintiffs to travel; and it is an equal protection violation to give different rights to new citizens than to already established citizens. Rationale: No rights, other than those created by reconstruction amendments, apply to state governments Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. After the Slaughter-house cases, the court reads the Due Process Clause as effectively incorporating a number of important rights to apply against state gov'ts No state shall deprive anyone without life, liberty, or property, without due process of law Tests to use: Does the count as a fundamental principle of liberty? (Twining) the right be included as the essence of a scheme of ordered liberty? (Palco) Is the right really important and fundamental? Different by justices of what is incorporated: Black: All of the Bill of Rights, but only the Bill of Rights Frankfurter: only some of the Bill, but some not in Right to abortion, physician-assisted suicide, etc. Warren Court Incorporates most criminal procedure rights Religion clauses of first amendment Only rights that haven't been incorporated are: 2nd amendment right to bear arms (now incorporated) 3rd amendment: quartering soldiers 5th grand jury 7th grand jury in civil cases Complications with incorporation Some of the rights in the first 8 amendments were designed not to apply to state government, and instead designed to protect states from national government Example: establishment clause Designed to prevent federal government from establishing national church, and from displacing any church established by a state At founding, Bill supposed to protect states and individuals Second Amendment right to bear arms held explicitly that the Second amendment not incorporated Presser v. Illinois: against the states original and historical interpretation of 2nd amendment was the right of states Heller: to organize militias Made no to incorporate against state governments; was right possessed against state governments
Holding: Court upholds right of plaintiffs to travel; and it is an equal protection violation to give different rights to new citizens than to already established citizens. Rationale: No rights, other than those created by reconstruction amendments, apply to state governments Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. After the Slaughter-house cases, the court reads the Due Process Clause as effectively incorporating a number of important rights to apply against state gov'ts No state shall deprive anyone without life, liberty, or property, without due process of law Tests to use: Does the count as a fundamental principle of liberty? (Twining) the right be included as the essence of a scheme of ordered liberty? (Palco) Is the right really important and fundamental? Different by justices of what is incorporated: Black: All of the Bill of Rights, but only the Bill of Rights Frankfurter: only some of the Bill, but some not in Right to abortion, physician-assisted suicide, etc. Warren Court Incorporates most criminal procedure rights Religion clauses of first amendment Only rights that haven't been incorporated are: 2nd amendment right to bear arms (now incorporated) 3rd amendment: quartering soldiers 5th grand jury 7th grand jury in civil cases Complications with incorporation Some of the rights in the first 8 amendments were designed not to apply to state government, and instead designed to protect states from national government Example: establishment clause Designed to prevent federal government from establishing national church, and from displacing any church established by a state At founding, Bill supposed to protect states and individuals Second Amendment right to bear arms Presser v. Illinois: held explicitly that the Second amendment not incorporated against the states Heller: original and historical interpretation of 2nd amendment was the right of states to organize militias Made no to incorporate against state governments; was right possessed against state governments
Con_Law_Levinson_Spring_2011.docx