CHAPTER 5
Constitutional Law and the Bill of Rights
Chapter Goals
Essentially, this chapter is a brief exploration of the primary intersections between the Bill of Rights and
the practice of commerce in the United States. The chapter primarily focuses on freedom of religion,
freedom of speech, search and seizure, takings, due process, and equal protection. The cases and
readings raise, for the most part, rather unusual situations. The goal is not so much to master the law of
these situations as it is to afford students a general understanding of and respect for the Bill of Rights,
and particularly for its role in the marketplace. Therefore, the instructor’s major task here may be to infuse
the student with a bit of awe for the principles underlying the Bill of Rights and for the power of a
document to hold together the fundamental values of an entire nation.
Note that the Constitution is introduced in this chapter, but the discussion of the Commerce Clause and its
impact upon business is deferred to Chapter Eight.
Chapter Learning Objectives
After completing this chapter, students will be able to:
1. Recognize the purposes of the U.S. Constitution.
2. Describe the separation of powers under the U.S. Constitution.
3. Identify the freedoms protected under the First Amendment.
4. Describe the powerful role the Bill of the Rights plays in protecting personal freedoms.
5. Discuss the differences between First Amendment protections of commercial speech versus political
speech.
6. Explain the “exclusionary rule.”
7. Describe some of the issues arising under the Fourth Amendment “search and seizure” rules.
8. Describe the law of the Fifth Amendment “Takings Clause” and the property rights controversy
associated with it.
9. Compare and contrast substantive due process and procedural due process.
10. Identify some examples of the impact of the Equal Protection Clause on business and society.
Chapter Outline
I. Creating a Constitution—The United States
The U.S. Constitution was based on the 1778 Articles of Confederation. The Articles contemplated a “firm
league of friendship,” but each state was to maintain its “sovereignty, freedom, and independence.” The
Articles soon proved faulty. Seven years of war had basically bankrupted the colonies. As a result of this
turmoil, and in an effort to strengthen the Articles, the Constitutional Convention was called to order in
Philadelphia on May 25, 1787.
The decision to convene the Convention may have been a first in world history in that the state leaders
themselves acknowledged that the existing federal government was faulty, the citizenry calmly talked
things over, violence was avoided, and the decision was made to go forward with the Convention. All 55
delegates, the Founding Fathers, were white males, and most of them were wealthy landowners, but they
were also immensely talented with a wide range of interests and experiences. The delegates agreed that
a stronger central government was needed, but they were split on just how far the notion should go.
On September 17, 1787, the great document, one of the most influential expressions in human history,
was formally signed. Following bitter disputes in some states, the Constitution was ratified and the new
government haltingly moved forward under the leadership of George Washington and John Adams. [For
links to national constitutions around the globe, see http://confinder.richmond.edu/]
A Right to Bear Arms
Addressing one of the most contentious questions in American constitutional history, the U.S. Supreme
Court in 2008 ruled 5–4 that the Second Amendment guarantees individual Americans a fundamental
right to bear arms. The decision struck down a District of Columbia law that effectively banned handgun
possession. Lower court decisions are thus far split on the crucial question of whether states may lawfully
bar or strictly limit carrying guns in public for self-defense. Recent mass murders in a Wisconsin Sikh
temple, in an Aurora, Colorado, movie theater, and at Sandy Hook Elementary School in Newtown,
Connecticut, have energized the national debate over gun control.
II. Structure and Purpose
The Preamble identifies certain goals for American society, such as unity (among the various states),
justice, domestic tranquility (peace), defense from outsiders, increasing general welfare, and liberty. The
Constitution serves a number of broad roles:
It establishes a national government.
It controls the relationship between the national government and the government of the states.
It defines and preserves personal liberty.
It contains provisions to enable the government to perpetuate itself.
The Founding Fathers—Should we Move On?
Author Mark Kurlansky argues that the Founding Fathers’ great accomplishment is losing its luster:
I am sick and tired of the founding fathers and all their intents. The real American question of our times
is how our country in a little over 200 years sank from the great hope to the most backward democracy
in the West. Few informed people look to the United States anymore for progressive ideas. We ought
to do something. Instead, we keep worrying about the vision of a bunch of sexist, slave-owning 18th
century white men in wigs and breeches.
A. Government Power and Constitutional Restraints
The U.S. Constitution divides governmental power between the federal and state governments.
Congressional authority is formally limited to certain enumerated powers (Article I, Section 8), such as
the authority to regulate commerce. Certain constitutional checks or restraints, including the Bill of
Rights, limit how far Congress can reach even within its enumerated powers.
In the landmark 1819 Supreme Court decision, McCulloch v. Maryland, the U.S. Supreme Court
interpreted the Necessary and Proper Clause (Article I, Section 8) to afford Congress those implied
powers necessary to execute the enumerated powers, thus achieving a workable national
government. The McCulloch court also ruled that the Constitution’s Supremacy Clause nullifies state
action that conflicts with federal law.
B. Too Much Government?
Massive federal intervention in health care, to combat the “Great Recession,” to deal with the subprime
mortgage crisis, and to reform banking practices generated renewed pleas for restraints on an
“overreaching” federal government. The Tea Party movement emerged in 2009, and a heated national
debate has ensued about the appropriate balance between individual rights as expressed in the free
market versus an interventionist federal government designed to correct market failures and protect
those least able to care for themselves.
C. Separation of Powers
As a further means of controlling the power of government, the Constitution sets up the three federal
branches and creates mechanisms for them to act as checks and balances on each other. The
President, Congress, and the courts each have specialized areas of authority, as provided for by the
Constitution. The result is a system of separation of powers designed to prevent too much authority
from residing in any one branch.
The role of the judiciary has been a matter of particular controversy in recent years. The historic 1803
Marbury v. Madison decision was the first time the Supreme Court had declared an act of Congress
unconstitutional, and the decision also established the principle of judicial review. [For the National
Constitution Center, see http://www.constitutioncenter.org]
D. Federalism
The United States government is built on federalism principles; that is, the Constitution provides for
shared power among national, state, and local governments. A primary role of the Constitution is to
balance central federal authority with dispersed state power.
The American Civil War was provoked in part because of differing conceptions of federalism.
Southerners held the view, labeled states rights, that each state was entitled to make its own policy
decisions about crucial matters such as slavery, while Northerners favored a strong central
government.
E. The Constitution and the New Federalism
The Supreme Court in the mid-1990s revisited the federal-state balance of power with some decisions
curbing federal authority. The new federalism expressed itself in a landmark 2013 U.S. Supreme Court
decision, Shelby County v. Holder, that challenged the constitutionality of the federal Voting Rights Act
of 1965 which, among other things, subjected nine mostly southern states to federal supervision of
their election processes because of a long history of discrimination against minorities in voting
practices.
F. The Constitution, the Bill of Rights, and Business
The Constitution, in particular, the Commerce Clause profoundly shape the practice of American
business. The Bill of Rights protects one’s personal freedoms (speech, religion, and more) from
encroachment by the federal government. Furthermore, the Supreme Court has ruled that the Due
Process Clause of the 14th Amendment, which is directed at the states, absorbs or incorporates those
fundamental freedoms and protects them against intrusion by state governments. [For the “Guide to
Law Online,” prepared by the U.S. Law Library of Congress, see
http://www.loc.gov/law/help/guide.php]
III. The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
These few words constitute one of the most powerful and noble utterances in history. Much of the
magnificence that people often associate with America is embodied in the protections of the First
Amendment. [For the First Amendment Center, see http://www.firstamendmentcenter.org.]
A. 1. Freedom of Religion
The First Amendment forbids:
The establishment of an official state religion (the Establishment Clause)
The undue state interference with religious practice (the Free Exercise Clause)
Broadly, the idea of the First Amendment is to maintain a separation between church and state. The
precise boundary of that separation, however, has become one of the more contentious social issues
in contemporary life. [For the Freedom Forum database on the First Amendment, see
http://www.freedomforum.org.]
Official State Religion?
North Carolina state legislators introduced a resolution in 2013 asserting the state has a right to
declare an official state religion (presumably Christianity). The bill was quickly withdrawn by the state
Speaker of the House. The bill’s sponsors employed reasoning that has gained some currency on the
right, namely that the Establishment Clause applies only to the federal government, not to the states. A
2013 national poll found that 34 percent of Americans would favor establishing Christianity as the
official state religion in their own state, and 32 percent favor a constitutional amendment that would
make Christianity the nation’s official religion.
God, the Pledge, and Currency
Addressing two long-standing sources of constitutional ferment, three-judge panels of the Ninth
U.S. Circuit Court of Appeals in 2010 ruled that the use of the words “Under God” in the Pledge of
Allegiance and “In God We Trust” on the U.S. currency do not violate the separation of church and
state principles of the First Amendment.
God and Student Organizations
The University of California Hastings College of the Law refused to recognize a student
organization, Hastings said the group’s faith-based rules discriminate against gays, lesbians, and
others who do not share the group’s religious beliefs. The organization’s rules require members to
pledge they will not engage in a “sexually immoral lifestyle” including “all acts of sexual conduct
outside God’s design for marriage between one man and one woman.” the Christian Legal Society
(CLS). CLS challenged Hastings’s policy as a violation of the member students’ First Amendment
rights to freedom of religion, speech, and association. The U.S. Supreme Court, by a 5–4 margin,
ruled in 2010 that the students’ constitutional rights were not violated in that the university policy
was a reasonable, viewpoint-neutral condition on access to student recognition in a public
university.
Veils and French Values
France, in 2011, began enforcing its new law forbidding, with some exceptions, the wearing of a
garment in public that hides the wearer’s face. The law was promoted as a matter of security and of
cultural assimilation while it was assailed as an affront to the Muslim faith and a political move
designed to appeal to voters worried about threats to traditional European values and culture.
Following a little more than one year of experience with the veil law, France reported that 425
women had been fined $188 each, and 66 others had received warnings.
B. 2. Freedom of Speech
Freedom of speech is the primary guarantor to the American approach to life. Americans believe that
the free expression of ideas is the most likely path to the best ideas. Americans believe in a
marketplace of ideas just as they believe in a marketplace of goods.
Freedom of speech is not absolute. The state cannot regulate the content of speech. However, the
state does have greater authority to regulate context of speech if that regulation is necessary to
preserve compelling state interests. [For freedom of speech links, see http://gjs.net/freetalk.htm.]
What Is Expression?
Expression is not limited to oral and written utterances. Freedom of speech clearly extends to
messages not communicated with words. In Tinker v. Des Moines School District, one of the
leading free speech cases in American history, the U.S. Supreme Court found First Amendment
protection for the wearing of a black armband to a high school as a protest against the Vietnam
War where no evidence of disruption was presented.
Free Speech Analysis
A tool frequently employed by the courts is the balancing test, where the judges must try to weigh
the interests of the state against the expressive rights of the individual.
Content: Vile Words
One of the most controversial Supreme Court cases of recent years involved the Topeka,
Kansas, Westboro Baptist Church and its practice of protesting at the funerals of American
soldiers killed in service. Pastor Fred W. Phelps and his small congregation, most of whom are
family members, contend that battlefield deaths are God’s punishment for America’s sins,
including homosexuality. The funeral protests include signs displaying messages such as
“Thank God for dead soldiers,” and “God Hates Fags.”
Pastor Phelps and his family picketed the 2006 funeral of Matthew Snyder, a Marine who had
been killed in Iraq. Snyder’s father sued Phelps and Westboro and won a $10.9 million damage
award. That decision was reversed on appeal, and the case reached the U.S. Supreme Court in
2011 where the church’s First Amendment freedom of expression argument prevailed by an 8–1
margin. The Court’s unpopular decision affirmed the longstanding position that the government
ordinarily cannot restrict speech based on its content, however tasteless or valueless.
Context: Panhandling
The context of the begging, that is, when, where, and how the begging is conducted may affect
its constitutionality. The content of the message (begging) is not restricted, but for compelling
reasons, authorities might lawfully shift the time, place, or manner of the expression.
Balancing Interests: Speech at School
Joseph Frederick was across the street from his school with many other students watching, with
school permission, an Olympic torch parade when Frederick, a Juneau, Alaska, high school
senior, and some friends unfurled a large banner reading “Bong Hits 4 Jesus.” The banner was
a prank designed to attract attention from television cameras. The school principal, Deborah
Morse, told Frederick to lower the banner. He refused, and he was suspended from school.
Frederick sued, and the case reached the U.S. Supreme Court. [See Deborah Morse v. Joseph
Frederick, 127 S.Ct. 2618 (2007); and Mark W. Cordes, “Making Sense of High School School
Speech after Morse v. Frederick,” 17 Wm. & Mary Bill Rts. J. 657 (2009)]
Public Sector Workers Off the Job? On the Job?
The First Amendment generally shields public-sector workers’ off-the-job expressions when
speaking as citizens about matters of public concern. Nonetheless, employer restrictions necessary
to effective operation of the government enterprise may sometimes be permissible, as illustrated by
the 2008 dismissal of Crystal Dixon, an African-American woman and the University of Toledo’s
interim associate vice president for human resources. In 2012, the Sixth Circuit Federal Court of
Appeals ruled against Dixon, reasoning that the university’s interest in efficient, effective operations
outweighed Dixon’s First Amendment rights since she was a university policy maker who spoke on
a policy related to her position.
Government employees’ free speech rights are substantially limited on the job. Los Angeles Deputy
District Attorney Richard Ceballos lost his job in a whistle-blowing episode. Ceballos sued; the U.S.
Supreme Court in 2006 ruled that government employees who speak out “pursuant to their official
duties” are speaking as employees, not citizens, and therefore are not protected by the First
Amendment. In 2014, the United States Supreme Court clarified that public workers act as citizens
when they testify under oath; therefore, the First Amendment protects them from retaliation based
on their testimony.
Politically Correct Speech
Many universities have “speech codes” of one form or another designed to stop hate speech,
harassment, bullying, and other offensive conduct. In 2013, the federal Departments of Justice and
Education issued a “blueprint” for colleges nationwide that, according to critics, redefines sexual
harassment to include “unwelcome conduct of a sexual nature.” The federal blueprint and campus
speech codes are designed to maintain safe, civil learning environments that embrace diverse
cultures, but critics argue that the restraints are unconstitutional and that they amount to a demand
for politically correct speech, that is, speech that avoids hurtful words.
Yale
Complaints of a hostile sexual environment and intimidation of female students caused Yale
University in 2011 to impose a five-year ban on all campus activities for a prestigious fraternity
that counts both Bush presidents among its alumni. Following a federal investigation, Yale
agreed to changes in its harassment policy and reached a settlement that did not involve
disciplinary action.
Maricopa CCC
A number of university speech codes have been invalidated as violations of First Amendment
rights. A Maricopa County Community College (Arizona) math instructor won a Ninth Circuit U.S.
Court of Appeals decision involving his right to send racially-charged e-mails over the school
district-maintained server to all employees with an email address. Professor Walter Kehowski
sent three messages declaring, for example, that: “It’s time to acknowledge and celebrate the
superiority of Western Civilization.” On his University-maintained website, he said, “[T]he only
immigration reform imperative is preservation of White majority (sic).” A group of Hispanic
employees then sued the school district claiming that it had failed to properly respond to
Kehowski’s remarks thus allowing the creation of a hostile work environment. The Court of
Appeals, however, ruled that the emails addressed matters of public concern and were
protected by the First Amendment and thus could not constitute illegal harassment.
“Be Happy, Not Gay”
Following a day designated to show support for gays and lesbians at her high school in
Naperville, Illinois, a student wore a T-shirt to school displaying the expression “Be Happy, Not
Gay.” The school’s Dean forbade the expression at the school. The Seventh Circuit U.S. Circuit
Court of Appeals reasoned that the forbidden expression did not constitute “fighting words” or
some other recognized First Amendment exception and ruled that the students had a right to
wear the shirts and express their opinions. Zamecnik and Nuxoll v. Indian Prairie School District,
636 F.3d 874 (7th Cir. 2011).
Ole Miss
Notwithstanding decisions such as Maricopa CCC, colleges and universities have sometimes
been accorded considerable latitude in dealing with speech issues. The Fifth Circuit Court of
Appeals, for example, upheld the right of the University of Mississippi to ban flags, including the
Confederate flag, at campus events. Specifically banning only the Confederate flag presumably
would not have met with the Court’s approval.
George Mason
Many First Amendment scholars believe the correct antidote to hate speech is simply more
speech. The decision that follows demonstrates the First Amendment’s role in resolving claims
of racism, sexism, and general insensitivity springing from a George Mason University
fraternity’s “ugly woman contest.” [For a vigorous critique of campus “political correctness,” see
the Foundation for Individual Rights in Education at http://thefire.org/]
Legal Briefcase: IOTA XI Chapter v. George Mason University, 993 F.2d 386 (4th Cir. 1993)
Commercial Speech
In 1942, the U.S. Supreme Court ruled that commercial speech was not entitled to First
Amendment protection. Subsequently the Court changed its stance and extended First
Amendment rights to commercial speech, but those rights were much more limited than for
political speech. In more recent years, the Court has been gradually expanding protection for
commercial speech.
Corporate/Commercial Speech
The U.S. Supreme Court’s controversial 2010 Citizens United decision allows corporations to
spend more freely on elections (See Chapter 3). In the late 1970s, Justices William Rehnquist
and Byron White had described corporations as “creatures of the law” possessed of
wealth-creation powers but not entitled to the rights possessed by voters. By contrast, the
Citizens United majority described corporations as “associations of citizens” deserving of free
speech rights in the manner of individuals.
Cigarette Packs and Graphic Warnings
The federal Food and Drug Administration (FDA) recently issued rules requiring, among other
things, graphic antismoking warnings covering the top half of the front and back of cigarette
packs. Tobacco companies challenged the warnings as violations of their freedom of expression
rights. One federal court of appeals upheld the constitutionality of the rules, but another struck
them down. The FDA decided to rewrite its rules in an effort to resolve the First Amendment
issues.
Animal Cruelty
The Supreme Court in 2010 supported the First Amendment rights of a business selling videos
depicting animal cruelty. Robert J. Stevens advertised and sold pit bull-related videos showing
dog fights and dogs attacking wild boar. Stevens was criminally indicted. Stevens moved to
dismiss the indictment saying that the statute violated his First Amendment right to free speech.
The Supreme Court, in an 8–1 ruling agreed with Stevens.
In an illustration of the balance of powers concept, Congress and President Obama quickly
approved new federal legislation designed to attack certain animal cruelty videos while meeting
constitutional requirements. The Animal Crush Video Prohibition Act of 2010 bans the creation
and distribution of obscene animal torture videos.
Legal Briefcase: Bad Frog Brewery v. New York State Liquor Authority 134 F.3d 87 (2d Cir.
1998)
IV. The Fourth Amendment
The Fourth Amendment provides that:
[T]he 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.
Two crucial inquiries in search and seizure cases are whether a search has, in fact, occurred (as in the
Jones and Jardines cases) and whether the search violated the subject’s reasonable expectation of
privacy. The most controversial dimension of Fourth Amendment interpretation is the exclusionary rule,
which provides that, as a matter of due process, evidence secured in violation of the Fourth Amendment
may not be used against a defendant at trial. While a very effective device for discouraging illegal
searches, seizures, and arrests, also from time to time has the effect of freeing guilty criminals. The U.S.
Supreme Court restricted the exclusionary rule in 2006 holding that the government need not forfeit
evidence collected in constitutionally improper “no knock” searches.
In general, a search warrant issued by a judge is necessary to comply with the Constitution in making a
narcotics search. A warrantless search is permissible, however, where reasonable, as in association with
an arrest or where probable cause exists to believe a drug-related crime has been committed but
circumstances make securing a warrant impracticable.
The Supreme Court restricted the exclusionary rule in 2006 holding that the government need not forfeit
evidence collected in constitutionally improper “no knock” searches. Hudson v. Michigan, 126 S.Ct. 2159
(2006).
Search/privacy problems pervade people’s lives:
1. Vehicle Searches—for nearly 30 years, police officers have commonly understood that lawfully
arresting an occupant of a vehicle confers the right to search the passenger compartment of that vehicle.
In a 2009 decision, Gant v. Arizona, the U.S. Supreme Court significantly diminished that authority by
ruling that such searches are permissible in only two circumstances:
When the individual being arrested is close enough to the vehicle to reach in for a weapon or
evidence
When the officer can reasonably believe that the vehicle contains evidence relevant to the crime of
arrest
2. Cell Phones—Court decisions supporting cell phone searches have relied on well-settled Supreme
Court decisions allowing police to conduct searches incident to lawful arrest. The arrestee’s person and
immediate area of control including any closed containers in possession of the suspect may be examined
by the police in order to insure their safety and to prevent the destruction of evidence.
3. Testing Students—an honor student, Lindsay Earls, in rural Tecumseh, Oklahoma, challenged a
mandatory random urinalysis drug-testing the program as a violation of her Fourth Amendment rights. The
U.S. Supreme Court reasoned that those participating in extracurricular activities are subjected to many
rules and restrictions that diminish their expectation of privacy, and the Court said the program is a health
and safety measure rather than an assault on personal privacy.
4. Voyeurism and the Surveillance Society—a 2002 Washington case held that there is no “reasonable
expectation of privacy” in a shopping mall and, thus, convictions of two men who had taken pictures up
the skirts of some women were overturned. A federal law, the Video Voyeurism Prevention Act (limited to
federal jurisdiction/property), and a number of state laws have expanded protection against photographic
voyeurism, but those laws may not meet constitutional requirements.
5. DNA Samples—DNA testing is a valuable tool in prosecuting criminals and in exonerating the
innocent, but DNA collection by the government of suspicionless persons who are presumed innocent at
the time raises significant privacy issues. Over half of the states collect DNA upon arrest for serious
crimes. [For an overview of privacy issues, see http://epic.org/]
Drug Sniffing Dog
The Miami-Dade Police Department received a tip that the residence of Joelis Jardines was being used to
grow marijuana. A drug-sniffing dog was taken to the door of the home. The dog signaled the presence of
marijuana, a search warrant was obtained, and a search discovered marijuana growing in the house.
Jardines was arrested.
A. Business Searches
Government tries to protect citizens from business hazards including pollution, defective products, and
unsafe workplaces as well as business crimes such as fraud and bribery. To do so, government agents
often want to enter company buildings, observe working conditions, and examine company books. The
Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes.
V. The Fifth Amendment
A. Takings—Eminent Domain
The Fifth Amendment prohibits the taking of private property for public use without just compensation
for the owner. In cases where owners do not want to sell, governments often use the power of eminent
domain to take private property for public uses such as building highways, bike trails, and parks, while
providing just compensation.
Kelo v. City of New London, Connecticut (S. Ct. 2005)
[For property rights analysis and updates as well as more on the Kelo story, see http://www.ij.org/].
B. Takings—Regulatory
The “Takings” clause is also at issue when the government does not take the property but rather
regulates it in a manner that deprives that property owner of some or all of its economic usefulness.
These regulatory takings, whether temporary or permanent, normally do not require government
compensation. Nonetheless, in recent years the courts have been more aggressive about requiring
just compensation for some regulatory takings. Three broad classes of such takings have emerged in
court decisions.
1. Total Takings—if a governmental body acts in a way that permanently takes all of the economic
value of a property or permanently physically invades the property, the taking requires just
compensation unless the government is (1) preventing a nuisance or (2) the regulation was
permissible under property law at the time of the purchase of the property.
2. Exaction/Mitigation—a second class of regulatory takings involves situations where the
government allows land development only if the owner dedicates some property interest (called an
exaction) or money (called a mitigation or impact fee) to the government. As discussed in the 1994
Supreme Court case of Dolan. Florence Dolan, owner of a plumbing and electrical supply store in
Tigard, Oregon, applied for a city permit to nearly double the size of her store and to pave her parking
lot. Dolan sued and eventually the U.S. Supreme Court ruled that government can compel a
dedication of private property to public use where it can establish the following two factors:
A nexus or relationship between the government’s legitimate purpose and the condition imposed
and
A “rough proportionality” between the burden imposed and the impact of the development
3. Partial Takings—government may take part of a piece of property to expand a road, install a bike
path, and so on. These are neither total takings nor exactions, but rather fall into a case-by-case
analysis that, very briefly, considers the importance of the government’s goals and extent of the
burden on the property owner.
Zoning in the Sixth Century
Government restraints on property development are not merely a modern imposition, as one learns
from the following description of a zoning law in the Byzantine Empire:
Next came the first zoning law for the beach. Coastal vistas were so cherished, and the competition
for them so keen, that by the sixth century the Emperor Justinian the Great was compelled to pass
an ordinance barring construction within 100 feet of the shore to protect sea views.
Source: “The Beach: The History of Paradise on Earth,” by Lena Lencek and Gideon Bosker
VI. The 14th Amendment
A. Due Process
The Due Process clauses of both the Fifth Amendment (applicable to the federal government) and the
14th Amendment (applying to the states) forbid the government to deprive citizens of life, liberty, or
property without due process of law.
Substantive Due Process
Laws that arbitrarily infringe on fundamental personal rights and liberties such as privacy, voting,
and the various freedoms specified in the Bill of Rights may be challenged on due process
grounds. The purpose of the law must be so compelling as to outweigh the intrusion on personal
liberty or the law will be struck down.
Procedural Due Process
Procedural due process means that the government must provide a fair procedure including notice
and a fair hearing before taking an action affecting a citizen’s life, liberty, or property. The precise
nature of procedural due process depends, however, on the situation.
Due Process: Void for Vagueness
A statute may violate due process rights if it is so vaguely written that the ordinary person cannot
understand it.
Legal Briefcase: Skilling v. United States, 130 S.Ct. 2896 (2010)
Afterword: The Fifth Circuit upheld Skilling’s conviction finding the honest services error was
“harmless” in that ample evidence unrelated to the honest services charge supported Skilling’s
conviction on 19 counts of securities fraud, conspiracy, insider trading and making false
representations. At this writing, Skilling is serving sentence in a Colorado prison, but an agreement
was reached to reduce his 24-year sentence by 10 years because of a mistake in interpreting the
federal sentencing guidelines. Skilling also agreed to give up about $42 million, all of which will go
to Enron fraud victims. The case now seems to be at an end, and Skilling may depart prison as
early as 2017.
B. Equal Protection
The 14th Amendment provides that no state shall “deny to any person within its jurisdiction the equal
protection of the laws.” The Due Process Clause of the Fifth Amendment has been interpreted to
provide that same protection against the power of the federal government. Fundamentally, these laws
forbid a government from treating one person (including a corporation) differently from another without
a rational basis for doing so. Most notably, the Equal Protection and Due Process Clauses have
played an enormous role in attacking discrimination (see Chapter 13), but they can also significantly
influence routine business practice in many ways.
How Many Renters?
Trying to reduce the flow of university students into certain portions of the community, Ames, Iowa,
home of Iowa State University, passed a zoning ordinance that permitted only single-family residences
in specified areas. Under the ordinance, “family” was defined as any number of related persons or no
more than three unrelated persons. The Ames Rental Property Association challenged the
constitutionality of the ordinance.
Same-Sex Marriage: Equal Rights?
Edie Windsor, an 83-year-old lesbian, struck an historic but not yet definitive blow for gay and
lesbian rights when she successfully sued the U.S. government to strike down Section 3 of the
federal Defense of Marriage Act (DOMA). Windsor sued because the government, consistent with
DOMA, did not recognize her 2007 marriage to Thea Spyer, her long-time partner, who died in
2009. Windsor’s challenge succeeded when the U.S. Supreme Court in 2013 ruled that Section 3
of DOMA was unconstitutional as a denial of equal protection and due process. Although the
Windsor decision struck down Section 3 of DOMA, it did not address Section 2, which allows states
to refuse to recognize same-sex marriages performed in other states.
Practicing Ethics: Same-Sex Marriage: How Do You Feel?
At this writing in 2013, about 94 million Americans (nearly one-third of the population) live in states
that allow same-sex marriage. Worldwide about 585 million people (about 8 percent of the global
population) live in countries where same-sex marriage is lawful. Those numbers represent
extraordinarily rapid changes in American and global views of gay and lesbian marriage, but the
debate is far from settled.
Stop-and-Frisk
The stop-and-frisk police practice is constitutionally permissible if conducted properly, but in a 2013
class-action lawsuit, Floyd v. City of New York, federal district court judge Shira Scheindlin ruled
that stop-and-frisk, as practiced in recent years in New York City, is an impermissible violation of
citizens’ Fourth Amendment (search and seizure) and 14th Amendment (equal protection) rights.
The judge ruled that police had routinely stopped innocent people without reasonable suspicion
and that the police had been engaging in racial profiling.
Judge Scheindlin did not order a halt to stop-and-frisk, which is an important law enforcement tool if
properly employed. She did appoint a monitor to ensure police compliance with remedies including
the use of body-worn cameras by some officers. The case is on appeal at this writing.