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Example research essay topic: Equal Protection Clause Due Process Clause - 2,413 words

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... ter the 14 th Amendment was created in 1868. Conversely, although some of the framers of PIC 14 believed that the privileges and immunities of Article IV were strictly limited to fundamental and ancient rights (as discussed in Cornfield v. Coryell), that was not the prevailing view either, in the sense that equal rights for out-of-state visitors was never limited to a narrow range of fundamental and ancient rights. The plain language of PIC 14 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") does not define what those PIC 14 privileges or immunities are. Justice Field's Slaughter-House dissent opined that "The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State.

The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness... " But, it seems unlikely that the people who framed and adopted the 14 th Amendment intended to give the Courts or Congress sweeping power to strike down all state laws that make people unhappy. Arguably, the privileges and immunities of PIC 14 are in one or both of the following two categories: [ 1 ] whatever privileges or immunities the federal government is forbidden to violate, or [ 2 ] whatever privileges and immunities the Supreme Court and Congress (or the Supreme Court alone) feel are appropriate to safeguard against violation by state governments. It has been argued that category [ 2 ] was undoubtedly not intended, for otherwise the federal government would have obtained almost unlimited power to dictate to the states. It seems highly probable that at least category [ 1 ] was intended by some of the 14 th Amendment's framers, which would mean that PIC 14 protects rights of person and property which the Constitution already has safeguarded against federal abridgement. This conclusion has been aptly called the "Lost Compromise. " In 1869, the year after the 14 th Amendment took effect, the Court in Twitchell v.

Commonwealth held that the Bill of Rights is not applicable to the states; the 14 th Amendment was not addressed in Twitchell nor apparently did the Court ask counsel to address that Amendment, and Twitchell was subsequently cited and endorsed (in dicta) by the Court in Justices v. Murray, 76 U. S. 274 (1869) which again did not mention the 14 th Amendment. Both of these cases (Twitchell and Justices v. Murray) were apparently unanimous, and in neither case did the Justices see any relevance in the 14 th Amendment. In view of these two decisions rendered immediately after the 14 th Amendment was adopted, it would be reasonable to infer that the protections of the Bill of Rights were not commonly understood as having been given to a state's citizens by PIC 14, at least not without legislative action by Congress.

The idea that congressional action may be necessary to enforce the Bill of Rights against the states is in keeping with the spirit of PIC 4 which everyone agrees extends protection to out-of-state visitors only when a state confers rights on its own citizens either by a state statute or the state constitution. In other words, it would be reasonable to assume that PIC 14 was not meant to be enforced without authorization from Congress. If PIC 14 has little or no substantive meaning without congressional action, then PIC 14 is very much like its neighbors in the same sentence of the Fourteenth Amendment; the Supreme Court has long recognized that the Equal Protection Clause "creates no substantive rights" (see Vasco v. Quill), and likewise a significant minority of the Supreme Court has long recognized that "substantive due process" is an "oxymoron" (see the dissent in United States v.

Carlton). Although this footnote is getting pretty long, I want to mention that Congress exerted its power to enforce PIC 14 in the Civil Rights Act of 1871 by forbidding anyone to "conspire together... for the purpose, ... of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws. " Congress thus distinguished between laws which provide protection on the one hand, and laws which guarantee privileges or immunities on the other hand, and Congress wanted both types of laws to be applied equally to all citizens of the United States. This congressional interpretation is very much consistent with legal history leading up to the 14 th Amendment; the Civil Rights Act of 1866 did not seek to confer any absolute rights, but merely the "same right" on all people in every state and territory, and President Andrew Johnson's unsuccessful veto message described that Act as conferring on everyone "all the privileges and immunities of citizens of the United States. " It thus appears clear that PIC 14 was primarily intended as a type of equality provision that would complement the Equal Protection Clause. The equality aspects of PIC 14 and the Equal Protection Clause should surely be enforced by the courts with respect to citizens who are similarly situated.

For citizens who are not situated in the same state, the issue is more difficult, and the case for discretionary congressional enforcement stronger. An argument can be made that Congress ought to have at least some discretion to ensure that people living in the fifty states have the same basic rights vis a vis their local governments as people living in territories under the direct authority of the federal government. [ 8 ] In Adamson v. California, Justice Black provides extensive historical material about the framing of the 14 th amendment. Justices Black and Douglas also expressed the following view about "substantive due process": "to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of 'natural law' deemed to be above and undefined by the Constitution is another. 'In the one instance, courts proceeding within clearly marked constitutional boundaries seek to execute policies written into the Constitution; in the other they roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people. ' Federal Power Commission v. Natural Gas Pipeline Co. , 315 U. S. 575. " Adamson was decided in 1947.

Justice Black reiterated and expanded upon these views much later in his dissent in the 1970 case of In Re Winship. [ 9 ] Here's an excerpt from the dissent of Supreme Court Justice Benjamin Robbins Curtis in the Dred Scott case: "[t]he position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, [does not] bear examination. It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter. It existed in every political community in America in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed. And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna Charta, the ordinance of 1787 also violated it; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate Magna Charta by the ordinance, no one discovered that violation.

Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding States which have enacted the same prohibition? As early as October, 1778, a law was passed in Virginia, that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free. " It is interesting to compare this dissent of Justice Curtis in Dred Scott to the very similar dissent of Justice Rehnquist in Roe v. Wade, in which Rehnquist cited the abortion laws in force when the Fourteenth Amendment was created. It is also interesting to note that Justice Curtis previously wrote an opinion for the Court dealing with Fifth Amendment due process, in Murray v. Hoboken Land. The Murray Court correctly reiterated Lord Coke's view that "The words, 'due process of law, ' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land, ' in Magna Charta. " But then the Murray Court went further, saying that the Fifth Amendment's Due Process Clause is: "a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law, ' by its mere will.

To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. " This two-prong test of Justice Curtis is of very limited use, and has long since been discarded (the Murray Court itself decided not to strike down any legislation based upon this test).

Regarding the first prong of this two-prong test, if a process enacted by Congress violates some provision of the Constitution apart from the Fifth Amendment's Due Process Clause, then Congress is in violation of the Constitution regardless of whether due process is violated, so this first prong of the Murray test will always be moot. Regarding the second prong, if a process enacted by Congress violates settled usage prior to the eighteenth century then certainly it should not be doomed to unconstitutionality, or else Congress could never write innovative laws that bear no resemblance to eighteenth century statutes. The clearest evidence that this two-prong test has been discarded are the cases of Roe v. Wade and Planned Parenthood v.

Casey, in which the Supreme Court held that all of the common law penalties for pre-viability abortions violated due process (see footnote one above). Unfortunately, the Supreme Court has replaced the faulty two-prong test of Justice Curtis with a subjective test that conflicts even more egregiously with the intent of the Constitution's framers. I entirely and emphatically agree with Justice Black who wrote (see the dissent in In Re Winship) that, "Mr. Justice Curtis... gave 'due process of law' an unjustifiably broad interpretation. For me the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'-that is, according to written constitutional and statutory provisions as interpreted by court decisions" (see discussion on "law of the land" at footnote six above).

Historical factors are useful in understanding intent of lawmakers and in establishing judicial precedent, but as an independent test of constitutional "due process" they are of dubious value and legitimacy. [ 10 ] The Fourth Amendment of the Constitution says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " Even if you believe that the issue of abortion somehow fits into the scope of this great amendment, still the standard for governmental action is simply that it not be "unreasonable. " The Fourth Amendment does not require a "compelling state interest. " Even if the Constitution did require a compelling state interest, states certainly do have a compelling interest in protecting the most frail, the most helpless, and the most abused. Moreover, if the legislative process results in a strange compromise that only affords partial or incomplete protection to second or third trimester fetuses, it would be unreasonable to expect a legislature to deal with this entire issue in one fell swoop. [ 11 ] In Stenberg v. Carhart, Justice Breyer delivered the opinion of the Court. As discussed above, the vast majority of Americans believe abortion should generally be legal in the first trimester and illegal thereafter. Justice Breyer began the Carhart opinion by recognizing the extremists instead of the vast majority: "We again consider the right to an abortion.

We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution's guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. "


Free research essays on topics related to: property without due process, equal protection clause, 14 th amendment, due process clause, civil rights act

Research essay sample on Equal Protection Clause Due Process Clause

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