Political Science

Constitutional Law 2 Midterm

Question 1: court interpretation of economic, property, and contract rights as laid out in the Constitution. Has the Court been a defender of contracts and property rights as John Locke envisioned? Or, has the Court taken away these basic economic rights? Where do we stand with regard to economic and property rights in the United States as seen through the Supreme Court cases we discussed in class?

Over the centuries, the Supreme Court has changed their external makeup of members that seat on the Supreme Court benches. As does the members change so does the interpretations of the Constitution for each generation. When John Locke came up with the political theory of property rights, Locke used the word property to mean all rights that are given by God such as land, food, water, and other. Another part that drove Locke’s political theory was not only property rights, but contract and economics as well. Locke’s work on the property is concerned with “labor theory of value” which displays the role of economic regulation. Through their many Supreme Court cases, they have displayed their attitudes accordingly that have wavered over the years. The purpose of government is to safeguard rights. Where government expands, individual liberty shrinks. Where individual liberty expands, government shrinks. The constitution lays out what is meant for property, economic, and contract laws. The court’s interpretation of these laws remain in the hands of the nine Supreme Court justices, with the necessary updates as the founding fathers expunged on.

Property rights within the Constitution state our changing economic system is one based on massive government spending, expanding regulation, and intrusive oversight.  Since the Constitution was not written with the idea that the government would ever be allowed to do any of those things, it has been “interpreted” to allow for those economic and legal changes.  Where it has stated an inconvenient truth about Rights, balance of power, or the proper functioning of governmental branches, it has been conveniently ignored. Property rights are only mentioned once throughout the Constitution however, they are outlined throughout the Constitution in several amendments. In the Fifth Amendment, the Takings Clause “is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court.” (UMKC, n.d) The Takings Clause says that the government has the right to seize property, for the use of any means but will provide “Just Compensation.” The correct definition is, “”Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” [Cal Cost, Art. I § 19]. “(US Legal, n.d). Only certain types of property cases have to be interpreted by the Supreme Court. When the government seizes property for use of a park or new highway, they have to compensate the owners of the property in some situations, the government may overstep their boundaries and seize property that is a clear violation of the laws presented in the Constitution. Cases where the government violates the law are those that must be heard in front of a higher court. “Those difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant domination of property value.”(UMKC, nod)

In the past and present times the Court has had a difficult time enunciating a test to determine when a regulation becomes a violation of the law to be considered a principle of the Taking Clause.   The court has expressed that there is not clear formula and that each individual case must be dealt with according to the interpretation of the law.  One of the first cases that displayed the Taking Clause was the 1946 case of United States v. Causby (1946). “The Court found a taking when low-flying jets at an airbase made farming impossible on nearby land even though the government never actually claimed the land itself.” (Bill of Rights Institute, n.d) The owners of the chicken farm had to be compensated because of the loss of value the government ensued on their land because of the loss of time that the owners could have spent farming. The past common law of ad coelom had no legal standing in present times. The order came from Justice William Douglas with, Justices Reed, Frankfurter, Murphy, Rutledge in the majority, and Justices Black, Burton in the dissent. The second landmarked case that private property rights are exhibited is Lucas v. South Carolina Coastal Commission (1992), Lucas the owner of a beachfront property was found that the state violated the law and had to be compensated. Lucas wanted to build property on his beachfront property, but the state legislature passed a law banning him from doing so. The Supreme Court ruled 6-2 that the government had indeed taken Lucas’s land, and he was owed compensation, due to the loss because the law eliminated the land’s economic value. The Court held, “When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.”(Cornell Law, n.d) The Justices in case all in the majority were Rehnquist, Scalia, White, Conner, Kennedy, and Thomas. The Justices that were in dissent were Blackmun, Stevens, and Souter wrote a jurisdictional dissent.

In cases where the city tries to take private property can be trickier, that is when a higher court must step in to interpret the law for the correct decision. In the case of Dolan v. City of Tigard (1994) “cities could not require property owners to give up parts of their land for public use in order to receive permits to develop that land in cases where the city’s demands had no connection with the development intended by the owner.”(Bill of Rights Institute, n.d)  This case was unlike the previous property cases involved legislative determinations classifying entire areas of the city. The city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel, and forced Dolan to deed her property to the city.

Under the doctrine of “unconstitutional conditions,” the government could not make a person give up a constitutional right, such as the right to receive “just compensation” when they seize owners property for a public use conferred by the government where the benefit sought has no relationship to the property. In the case of City of New London v Kelo (2005) cities could take private property in order to turn it over to private developers, if the new development would result in greater revenue and benefits to the city. (Bill of Rights Institute, n.d) The city condemned Kelo’s property only to transfer it to another private party that the city believed could make better use of it. The court concluded if the property seize would be for public benefit than it would be okay because the government can turn over to a private developer for economic development of the area. Justices Stevens was in the Majority as Justice Kennedy was Concurring, and Justice Thomas was in dissent.

According to Locke, he believed in the preservation of property that unites a society. The economic rights outlined in the Constitution, are designed to encourage industry and initiative. Economic rights are protected by the Constitution under the Article I, Section 8: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”(Bill of Rights Institute, n.d) Within the Fifth Amendment property rights of individuals are protect and required by law to receive just compensation if the property is seized for public use. The Court has seen several cases in the past and present that showcased reverent landmarked cases that dealt with the need for interpretation of the economic rights of the Constitution. In the case of Dartmouth College v. Woodward (1818) is a landmarked case that not dealt with economic rights but contract rights as well (discussed later)? In this case, New Hampshire wanted to turn Dartmouth College into a state school.  However, the court ruled in Dartmouth’s favor. Dartmouth College was part of the private charter and in contract with the British Crown. “Chief Justice John Marshall invoked the Contracts Clause of Article I, section 10: “the legislature of a state shall pass no act impairing the obligation of contracts.” In another landmarked case was.”(Bill of Rights Institute, n.d) Not only was this contracts rights, but the landmarked decision help to settle the nature of public versus private charters. The outcome of the case resulted in the rise of the business corporation in American, and the American enterprise system. In this case, Justice Marshall was the majority, as Justices Washington, Story, Johnson, and Livingston was in concurrence, and Justice Duvall in dissent.

In Gibbons v. Ogden (1824) the Court ruled that the Commerce Clause of Article I, Section 8 gave Congress the power to regulate interstate commerce. “According to Chief Justice John Marshall, one fundamental purpose of the federal government was to “rescue [the United States] from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.” (Bill of Rights Institute, n.d) The decision sought the Supremacy Clause that confirmed that state laws that contradict constitutional acts of Congress have to follow the laws that set in the Constitution. The significance of the case identified the courts powers in dealing with the economic regulation of goods. This case furthered set the precedent for cases that powers of the government would not intermingle with commerce or the interstate transportation of goods.

Contract rights are also of importance in the Constitution. The Contract Clause in the Article I, section 10, clause it states,


“No,  State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post factor Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” (, n.d)


What the Contract Clause means is that states are prohibited from enacting laws that take away contract rights of individuals. However, it only applies to state legislature, not court decisions. One of the major landmarked case was the Fletcher v Peck (1810), this landmarked case held that private land and contracts. “The Supreme Court ruled that a grant to a private land company was a contract within the meaning of the Contract Clause of the Constitution, and once made could not be repealed.”(PBS, n.d)  The court overruled on a state law that based on the Constitution and help to establish a clearer interpretation of the Contract Clause. The court ruled in a 4-1 decision that was harrowed by Justice John Marshall being in the majority, and Justice Johnson ruling separate. This decision was finally overturned in another landmarked case of, Charles River Bridge v. Warren Bridge (1837), “was one of the first decisions to find for the state in challenges invoking the constitution Contract Clause.”(PBS, n.d) The decision was based on the battle of the bridges, where the Charles River Bridge company was granted a charter that would a bridge over the Charles River. Warren Bridge Company chartered a contract, not far, thus violating Charles River contract. Justice Taney ruled in the majority as, Justices, McLean, Barbour, Baldwin, and Wayne were in concurrence. Justices Story and Thompson were in dissent.

This ruling was tested once again in the Home Building & Loan Association v. Blaisdell (1934), which upheld the state law in restricting the mortgage holder’s ability to foreclose. This was in response to the Great Depression, “the Court ruled that the state could constitutionally alter the terms of any contract so long as the alteration is rationally related to protecting the public’s welfare.”(PBS, n.d) This law was enacted so that due to the economic predicament of the time would prevent mass foreclosures. However, the courts modification of the law was what the Constitution was not set out to do, but the court felt the law was a true interpretation of the state’s power.

Over time the constrictions protections that were laid out have been steadily taken away with new regulations, agencies such as FDA, EPA, OSHA, and other agencies that are able to combine executive and judicial functions. They are able to have make rules and reign authority over individual rights, like the courts. Locke’s right to property is one of humanity’s natural rights. It exists prior to and independent of government by virtue of the mixture of an individual’s labor with nature. Over time the court’s has stayed true to the wants of the Locke’s theory, however, it is up to the people to remain a body that makes sure their rights will not be encroached on.


Question 2: Using the assigned Supreme Court decisions, explain “The Nationalization of the Bill of Rights.” Second explain the different approaches (and tests) used by the justices throughout the nationalization process. Third discusses the relevance of “due process” and “privileges and immunities” to the debate over the nationalization of the Bill of Rights. Fourth, I want you to identify which justice of the Supreme Court you most agree with concerning the nationalization of the bill of rights and why you agree with him (provide a portion of their opinion(s) to emphasize your point).


The Fourteenth Amendment, states “No State shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”(US Constitution, n.d) When the Constitution was drafted, the founding fathers decided to add the Bill of Rights in order to outline the necessary rights for individuals that would not be infringed upon by the government. At first the Bill of Rights was only applied to the Federal Government, however, the Supreme Court, in interpreting cases where individuals Constitutional rights were violated by the state. The Supreme Court eventually ruled that the rights guaranteed in the Constitution are outlined into the 14th amendment. The 14th amendment grants equal protection under due process clause and within the Constitution for all U.S. citizens. The Constitution states must comply with those standards, by complying with the Bill of Rights for equal protection and treatment.

The Nationalization of the Bill of Rights is the process that was extended into the constitution basic rights delegated to the state and local governments. The Supreme Court changed the Constitution in order to apply the rules of the Bill of Rights onto the state. In the case Barron v. Baltimore. (1832) “ the U.S. Supreme Court ruled that the Fifth Amendment to the U.S. Constitution bound only the federal government and was thus inapplicable to actions taken by state and local governments.”(Legal Dictionary, n.d)  The main issue was that the city seized his private property for public use without just compensation. The court was trying to decide if Baron’s Fifth Amendment rights were violated, as the actions of the state where applicable of rights for the federal government. They ruled in favor of state as they felt the Supreme Court had no jurisdiction. “Barron v. Baltimore signaled a retreat from Marshall’s (who was the majority) earlier opinions that had expanded the scope and application of the federal Constitution, a change that reflected the growing States’ Rights movement over the issue of Slavery.”(Legal Dictionary, n.d) This case led to the ratification of the fourteenth Amendment, that was tested once again the Supreme Court selectively included most of the provisions of the Bill of Rights into the 14th amendment so that for states to uphold.

The Supreme Court has used the clauses of the fourteenth Amendment to force the states to justly adopt the Bill of Rights that had originally applied only to the federal government. The nationalization of the Bill of Rights led to selective incorporation of rights to the state government. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (US Constitution, n.d))

In the Slaughterhouse Cases, 83 US 36 (1873) was one of the first cases that showcased a vague interpretation of the Supreme Court’s action of the Fourteenth Amendment on the states, where it upheld  right for Louisiana to create monopolies for slaughterhouses for individual companies.  This ruling upheld the “privileges or immunities” were citizenship under the Constitution should have equal rights and protections provided by not only the federal government but the states as well. In the cases, those companies had workers under the same conditions similar to those in slavery, although the workers were not forced to work but instead volunteered. However, the court decided that the main purpose of the Thirteenth, Fourteenth, and fifteenth amendments were to grant the rights and freedoms of not only mainly the slaves and African American but to also ensure the liberties and the definition of freedom was protected and outlined in the Constitution.

In the 5-4 decision, the Court held to the thin interpretation of what the due process clause of the amendment did not restrict the powers of the state, and felt that the Butchers rights were not violated. The Court held that the Fourteenth amendment Privileges Immunities clause did not affect the rights of state citizenship. The decision in Slaughterhouse Cases made the court opinion of the law clear in aids that help to abolish slavery, clarify citizenship, and provide civil rights for women and African Americans in the future that extended to all nationalities. However, present criticism established that the case held no weight to the application of the Bill of Rights to the states, the Justices that ruled in the majority were Miller, joined by Clifford, Strong, Hunt, and Davis. The Justices in dissent, were Field, joined by Chase, Swayne, Bradley, and Swayne.

Many cases have been heard in the Supreme Court that have tested the Supreme Court interpretation of the fourteenth Amendment. It is the process that tested in each case the court hears. Constitutional adjudication is the process by which justices enforce the Constitution. Courts do not have the authority to rule that all cases that go against their opinion cannot strike down all government actions thought unconstitutional. Justices of the court have the power to exercise Judicial Review on cases they feel test the due process clause, they are either controversy or need further interpretation.

In cases such as Plessy v. Ferguson, which guaranteed equal protection under the law for blacks and white, “separate-but-equal” followed the equal protection clause. This case help to give a clear interpretation of the the the Fourteenth Amendment was not meant for and was overturned in Brown v. Board of Education of Topeka. The court ruled that the previous document of the “separate-but-equal” stance was wrong and made the treatment of African Americans inferior to any race. The Court held by 9-0 vote that discrimination solely on the basis of race requiring black students to be bussed to purportedly “equal” though segregated schools violated the Fourteenth Amendment.” (Rational Wiki, n.d)

The Due Process Clause and the Equal Protection Clause have changed the judicial and legislative interpretation since the Fourteenth Amendment was placed in the Constitution. “The Due Process Clause of the Fourteenth Amendment is in effect a carbon copy of the Due Process Clause of the Fifth Amendment, which also protects against deprivation of property without process of law.”(Rational Wiki, n.d) In the past, the process was seen as only encompassing limitations of rights that were being deprived, like procedural due process. However, once the case of Dred Scott vs. Sanford (1857), the case was the most hated do it deep racist undertones and provocations that help to bring about one of the first openly discussions of due process that has help to fight cases such as those that take away rights due to racial discrimination. In case,   u was first sought that certain rights the government could not take without the due process clause. In certain civil rights cases in the history, they did not input the due process clause, only in certain cases as mentioned early like in the slaughterhouse Cases where it, “held that the Constitution only protects an abridgement of rights undertaken by state action (subsequent cases have significantly confused the state action doctrine, to the benefit of the civil rights movement.” (Rational Wiki, n.d)

As the century has progressed the changes in the interpretation has brought on the observances of additional liberty rights cases that have not been identified in the Constitution. The conservative justices have widely criticized the expansion of the due process clause, including Justice Antonin Scalia, William Rehnquist, John Roberts, and Clarence Thomas. It was most famously criticized in the case Lawrence v. Texas (2003) that held the right of consensual adults could engage in consensual sodomy without prejudice from the law. Justice Scalia dissented,” arguing that this expansion of substantive due process would be “the dicta that ate the rule of law”(Rational Wiki, n.d) with the retirement of Chief Justice William Rehnquist, Scalia’s opinions on due process remain the majority.

In the cases of Rochin v. California (1952), this landmarked case in the Supreme Court held that that tested what violates due process. It was seen as a balancing test that has been used in precedence for future cases. The case dealt with the forced entry and unwarranted search of the Rochin residence by the police. This case was harrowed as, “shock the conscience” of that time. Rochin swallowed two morphine capsules, which, the police forcibly made him eject through taking him to the hospital and get his stomach pumped to show evidence. Rochin sued the state in appellant effort to overturn his case because he felt that his rights were constitutionally violated. However, the court ruled in 8-0 fashion, to overturn the first ruling, because as the court argued that the “brutality of the means used to extract the evidence from Rochin, “shocks the conscience,” and clearly violates the due process of law as guaranteed by the Fourteenth Amendment. Frankfurter also admitted the term due process was nebulous.”(Find Law, n.d) Justices Frankfurter, joined by Reed, Jackson, Burton, Vinson, and Clark was the majority while Justices Black and Douglas wrote concurrences to the case.  Another case that dealt with due process is the case of, Griswold v. Connecticut (1965) this landmarked case established that the Constitution held the right to protect the rights of privacy. At the time, the Connecticut government passed a law that prohibited the use of contraceptives. On a 7-2 vote, the Supreme Court found that the law invalidates the rights laid on the constitution. Although some justices decided to descent, most of the judges felt that it was not originally outlined in the Constitution, but left up to interpretation that privacy is protected by the Fourteenth Amendment under due process. Not only did Justice Marshall Harlan II wrote the majority, he also wrote a scathing due process rationale. In which is totally agreed upon. He felt that the Court should have heard the case rather than dismissing it, and wrote his famous dissenting piece,

“The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” On the basis of this interpretation of the due process clause, Harlan concluded that the Connecticut statute violated the Constitution.”(Cornell Law, n.d)

This is the most quoted and used dissenting opinion on cases used for privacy rights. In the case of BMW of North America, Inc. V. Gore (1996) the Supreme Court limited the punitive damages under the due process in the Fourteenth Amendment. The case dealt with Gore who brought a BMW that was previously painted over, but was told was brand new. Gore sued BMW, and the jury awarded him the loss value of the car, and 4million in punitive damages, however, the amount was reduced to 2million. The excessive amount of punitive damages violated the due process clause because of three factors that they applied.  The degree of reprehensibility of BMW’s conduct, the actual or potential harm inflicted on Gore, and a comparison of the award and the penalties that could be imposed for comparable misconduct.

The purpose of due process is protected the rights that was outlined in the Constitution for every American citizen. The Supreme Court does not have a formal set formula but composes a balancing act of enforcing the state and federal laws against the amendments in the Constitution.

Justice John Paul Stevens makes his opinions on the due process the most relatable as he believes

“The Due Process Clause cannot claim to be the source of our basic freedoms—no legal document ever could … But it stands as one of their foundational guarantors in our law.

If text and history are inconclusive on this point, our precedent leaves no doubt: It has been ‘settled’ for well over a century that the Due Process Clause ‘applies to matters of substantive law as well as to matters of procedure.’ …Time and again, we have recognized that in the Fourteenth Amendment as well as the Fifth, the ‘Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint.’… Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions.” (Supreme Court Gov, 2010)

The Bill of Rights is a framework that allows the rights that already given to citizens a clearer understanding defined under the eyes of the state and federal governments. Over time, the Supreme Court has dealt with several cases that have questioned the Due Process clause however the courts have interrelated what was envisioned in the Constitution in order to continue to protect those rights of life, liberty, and the pursuit of happiness.



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