American Constitutionalism in Historical Perspective (packet)

Art. IV, sec. 4: “The US shall guarantee to every state in this Union a republican form of govt.”

Marshall says Bill of Rts d/n apply to states Barron v. Mayor and City Council of Baltimore: private citizen brings action vs. city under 5^th A (taking w/out just compensation) taking by state violates 5^th A.

Reconstruction Amendments: req fed protection of basic human rts against threats from the states.

1. 
   Amendment XIII [1865][1]: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist with/in US, or any place subject to their j/d.”
   
2. 
   Amendment XIV [1868] [1]: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, w/out due process of law; nor deny to any person w/in its jurisdiction the equal protection of the laws.
   
   1. 
      Slaughter House Cases, 1873: court refuses to apply Amend XIV to dispute about the right of whites to work in slaughter industry in LA. Upholds state monopoly. Dismisses DP & equal protection clauses of 14^th A b/c meant to ameliorate the race problem, not present in this case.
      
      1. 
         Textual arg: distinction b/w citizen of US & citizen of a state. Art IV, sec. 2: metric of national human rts such as rt of free labor. Drafters d/n intend for the P & I clause to be as broad in scope as applied vs. the states as in Art. IV, sec. 2 b/c would upset the fed/state balance. But Reconstruction debates indicate that P & I clause of 14^th A is meant to draw upon SAME conception of human rts that have in Art. IV, sec. 2. So majority makes no sense based on text, history, and is moral shame. Tears heart out of P & I clause b/c “otherwise we will be the perpetual censor” (p. 453). Ct-skeptical worry of monitoring whether states are complying w/ normative basic human rts mandated by federal amendments
         
      2. 
         When ct finally does this d/n do it thru P & I but thru substantive due process. Brandeis in Whitney concurrence said that substantive DP was odd b/c DP was always seen as procedural. If struck down monopoly c’ve fixed health prob w/ zoning, would have been less restrictive alt.
         
3.