QUESTION: I am having trouble separating the controversy surrounding the incorporation of the Bill of Rights from the doctrine of substantive due process. Is it correct to say that substantive due process arose from a belief that there are rights "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" that were not included in the Bill of Rights, and therefore couldn't be incorporated?
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
Wednesday, May 13, 2009
Groupwise seems to be down
I cannot get into my Groupwise account, either via the regular client or through the web portal. I apologize if you have a question waiting in my in-box. I will keep trying throughout the evening. Once I can access my e-mail, I will post my answers here.
Preemption
QUESTION: I noticed on your 2001 practice exam in the question about a federal voting regulation where Congress was imposing a nationwide standard, that preemption wasn't an issue. I'm having trouble seeing where it is or isn't an issue. Does preemption only come into play in terms of commercial regulation rather than something like voting?
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
Lopez and aggregate effects
QUESTION: Under the substantial affects prong of Lopez, if the activity examined is neither economic or commercial, can we still examine it in the aggregate or must be examine it as an individual instance?
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
Raich
QUESTION: I cannot see how Raich helps our analysis under the Commerce Clause discussion. Unless we assume that noncommercial, intrastate activities can be aggregated to substantially affect interstate commerce, it appears to be relatively similar to Lopez and Morrison. Can you help?
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
Article IV, section 2 "fundamentalness"
QUESTION: Art. 4., section 2 protects states from infringing on fundamental rights. It is my understanding that these are very narrow: right to travel, right to pursue common calling or vocation etc. My question is are the fundamental rights that are derived from substantive due process, like the right to marriage or right to privacy, protected as well by Art. 4.2?
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
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