- The speaker took a nap and felt exhausted and disoriented afterwards.
- They didn't know how to do certain tasks on the computer.
- They didn't want to do something for a long time and were surprised by a challenge.
- The speaker discusses a practice exam and the importance of qualitative assessment in bullet points.
- The next assignment involves reading specific court cases about the incorporation of amendments.
- The speaker mentions specific cases to focus on and the evolving standard for incorporation.

- The video discusses the standard used to determine whether to incorporate certain rights.
- It focuses on the second sentence of the 14th Amendment, which includes the privileges and immunities clause, due process of law, and equal protection of law.
- The theory of constitutional interpretation suggests that these clauses were included to constitutionalize the Civil Rights Act of 1866.
- The meaning of due process is not clearly defined, but it is suggested to look to English law as a baseline.
- The 14th Amendment is currently in the news regarding section 2, which addresses insurrection and rebellion.
- The question of who determines if someone has engaged in insurrection is debated, and state legislatures are trying to pass statutes regarding insurrection.
- Section 4 of the 14th Amendment, which addresses the validity of public debt, has also been in the news recently.

- The US government is spending money excessively, even when they are close to reaching the debt ceiling.
- Some argue that the debt ceiling is invalid as it violates the first sentence of section 4.
- The Louisiana legislature created a monopoly slaughterhouse that all butchers had to use.
- Cities like Boston, New York, and New Orleans built beautiful buildings for the slaughterhouse business.
- The slaughterhouse was created to address health risks in 18th and 19th century cities.
- The Crescent City Slaughterhouse Corporation excluded certain butchers, making it a monopoly.
- The Louisiana Supreme Court upheld the butchers' lawsuit under the 13th and 14th amendments.
- Justice Miller wrote an opinion on the case, discussing the 13th and 14th amendments.
- The purpose of these amendments was to end slavery, particularly against African Americans.
- The citizenship clause of the 14th amendment overruled the Dred Scott decision and allowed for state and federal citizenship.

- The video discusses the relationship between federal citizenship and state citizenship in the original text
- The Dred Scott case was used to determine if former slaves could be citizens of the United States
- The wording of the 14th Amendment nullifies the Dred Scott case and establishes federal rules for becoming a state citizen
- The interpretation of the privileges and immunities section of the 14th Amendment is debated
- The video explores different arguments and interpretations of the privileges and immunities clause
- The video mentions the possibility of incorporating the first 8 amendments as privileges and immunities of federal citizenship
- The potential impact on state power and the role of federal judges is discussed.

- The video discusses the privileges and immunities clause, due process, and equal protection.
- Justice Miller argues that the privileges and immunities clause would destroy the federal system.
- Due process is not given much attention in the case and is dismissed.
- The equal protection clause is limited to African-Americans and would require a strong case to extend to other groups.
- Discrimination must be intentional to be actionable under the equal protection clause.
- Field's dissenting opinion is deemed ineffectual and the majority view prevails.
- The video mentions the Bradwell v. State case, where Myra Bradwell was denied admission to the bar due to her gender.

- The video discusses two cases related to the 14th Amendment: Bradwell v. Illinois and Cruikshank v. United States.
- Myra Bradwell applied to the bar in Illinois, arguing that the state law did not specify that only men could apply. The Illinois Supreme Court denied her admission and she appealed to the United States Supreme Court, claiming a violation of the 14th Amendment privileges and immunities clause.
- The Supreme Court ruled against Bradwell, stating that practicing law was not a federal privilege or immunity protected by the 14th Amendment.
- The video then discusses the Colfax riots in Louisiana and the case of Cruikshank v. United States. African Americans sued for failing to protect them against racial violence, but the Supreme Court ruled that the equal protection clause only applies to state action, not private action.
- The Court also ruled that the 14th Amendment's privileges and immunities clause only applies to states, not individuals.
- The video briefly mentions the case of Strouder v. West Virginia, where the Supreme Court ruled that a state law prohibiting African Americans from serving on juries was not unconstitutional.

- The video discusses various topics related to the 14th Amendment and its interpretation.
- It mentions the importance of qualitative assessment and the next assignment involving reading specific court cases.
- The speaker focuses on the privileges and immunities clause, due process, and equal protection.
- The video explores the relationship between federal citizenship and state citizenship.
- It discusses the impact on state power and the role of federal judges.
- The video mentions specific cases, including the Louisiana slaughterhouse case, Dred Scott case, Bradwell v. Illinois, and Cruikshank v. United States.
- It highlights the arguments and interpretations of the privileges and immunities clause.
- The video concludes by briefly mentioning the Strouder v. West Virginia case.

- The video discusses several Supreme Court cases related to race-based discrimination and the interpretation of the 14th Amendment.
- The first case mentioned is Strouder v. West Virginia, where the exclusion of African-Americans from serving on juries was deemed a violation of due process.
- Another case, United States v. Virginia, dealt with the exclusion of African-Americans from juries by a sheriff in Virginia, which was also ruled unconstitutional.
- The video then mentions the Civil Rights Cases of 1883, where it was determined that private businesses discriminating against African-Americans did not violate the Equal Protection Clause or privileges and immunities clause.
- The last case mentioned is Texas v. White, which involved the invalidation of bond sales by the Confederate States of America during the Civil War.
- The video highlights how these cases have been used in later years to determine the validity of actions by governments, such as the Nazi regime in post-World War II Germany.

The Supreme Court recognizes certain governmental things like marriages and driver's licenses under the Confederate Texas government, but anything related to the rebellion is considered void, including the transfer of government bonds. The topic of incorporation will be discussed tomorrow.

The video discusses Supreme Court cases related to race-based discrimination and the interpretation of the 14th Amendment. It mentions cases such as Strouder v. West Virginia and United States v. Virginia, where exclusion of African-Americans from juries was ruled unconstitutional. The Civil Rights Cases of 1883 determined that private businesses discriminating against African-Americans did not violate the Equal Protection Clause. Texas v. White involved the invalidation of bond sales by the Confederate States of America. These cases have been used to determine the validity of actions by governments, including the Nazi regime in post-World War II Germany. The video also mentions that the Supreme Court recognizes certain governmental things under the Confederate Texas government, but anything related to the rebellion is considered void. Incorporation will be discussed in the next video.

I didn't know how to convert to the same computer.

I didn't know how to do anything like that.

I didn't spend like, an hour on the computer.

I'm like, I'm gonna convert to this computer and then

I didn't want to do this for a long time.

I usually get my mind off of it for the last couple of months.

I didn't want to do it for the last year.

I mean, I'm like, thank you for all that.

I don't think I was surprised by the challenge.

I was bummed because I was hoping that they would say, you know, I have a disability.

So I have a few papers for people to think of, must know who you are.

And then second, so 1 person just sent me a practice exam and it's good, it's long.

And he does something that I just wanted to talk about for a minute.

So it's a lot of, you know, like there's a bullet point.

And then a paragraph discussing that, you know, whether they're standing or something like that.

He's got their rights, they're accurate, and his discussion was good.

The 1 thing when you use a format like that, you gotta be careful that you tie it all up or that you've used qualitative words in the bullet point.

So if you tell me that there's 6 arguments, you know, constitutional argument and there's no qualitative assessment of them or no summing up, then it's hard to give it a grade on that part of the exam.

You can say, this is the strongest argument or this is a weak argument, or there are 2 or 3 arguments here that are plausible.

I mean, you don't have to go off a cliff arguing definitely 1 point of view.

Okay, so Now the assignment for tomorrow is long.

It is about the process by which the amendments became incorporated by the Supreme Court through the due process clause of the 14th Amendment.

And what happened is the Supreme Court took a very general approach at first.

So you should skim 458 through 92 and you should read really closely the following decisions, Palco versus Connecticut, then the Adamson case and in particular Felix Frankfurter's concurrence in it.

And finally, McDonald versus Chicago, which you've heard about before.

So those, I realize that's most of the pages, but okay.

So that's, the last 1 is McDonald versus Chicago.

That's the 1 that incorporates a second amendment makes it applicable to the states or their instrumentalities.

In Frankfurter's concurrence, it is in Adamson.

So the thing to look at when you're reading this is what is the standard they seem to be applying when they say, yes, we're gonna incorporate or no, we're not going to incorporate because the standard evolves through those opinions.

So we're on section 1 and we've dealt with the first sentence, I think the first sentence abrogates Dred Scott, right?

We're gonna talk a little bit more about it when we get to the slaughterhouse case.

So the second sentence has 3 principle clauses, P&I, due process of law, and then equal protection of law.

So Savannah, you've read this sentence, right?

So there are lots of ways to try and read the sentence.

The first thing you have to know is that in the debates on the adoption of the 14th Amendment, they didn't say we intend by this clause X, right?

There's no specific uniform discussion of it.

They discuss the whole section 1, that second sentence, all at once.

Now, what theory of constitutional interpretation?

We're going to come to Justice Miller's theory in a minute.

But what theory would you, or how would you deal with cases given that they didn't seem to be coming down specifically on 1 thing, 1 clause?

Generally, like what the words mean generally and what was happening at the time.

Okay, so you know that's 1 way I'd say there's this theory which no 1 no law professors willing to say it's like the kitchen sink theory is that they had it in mind to do something, right Savannah?

Yes, or to be specific to constitutionalize the Civil Rights Act of 1866.

Now that doesn't mean they don't have separate content, but that's, and Justice Miller says it, that's the overall theory for them.

So 1 theory is, you know, they're in the back room, they're drafting it, and someone says, well, we ought to mention privileges and immunities.

The equal protection is directly out of the Civil Rights Act of 1866, so that was easy.

So we'll just talk about that a little bit before we get to the case.

So what do you think they meant by due process individually?

Let's forget the kitchen sink theory for a minute, individually, what would they have meant?

Did they have any clear authority on what the Fifth Amendment's due process clause meant?

So you're recalling, of course, the decision which is on page 442, which is Murray's Lessee versus Hoboken Land and Improvement Company decided in 1856.

So in this case, there was a Fifth Amendment challenge made to a procedure used by the United States Treasury to fix a lien on property of a customs collector whose accounts were found to be short by over a million dollars.

Samuel Osgood's accounts were found to be short, but it didn't stop him from getting appointed Postmaster General of the United States.

So the United States slaps a lien on the property.

A lien is something that says, if you sell the property, does the claim go with the property?

Yes, it's an attachment on it until the claim is liquidated.

Could be that nothing will come out of it, but it's a kind of temporary hold on a portion of the value of the property.

It's challenged under the fifth amendment and the court is talking about it.

And then on 443, in that second full paragraph, second sentence, But is it due process of law?

The constitution contains no description of those processes, which it was intended to allow or forbid it to not even declare what principles are to be applied to ascertain whether it be due process.

Is that encouraging for a new law student to read that from someone who's on the court?

So then you go down and in the second to last part, second or the last sentence It says, if not found to be so, that is some more specific thing, 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 in which are shown not to have been consulted to their civil and political conditions.

So is that the only possible interpretation or is that sort of a baseline?

It's a baseline because he says before it, there can be other things, but that's a minimum.

Okay, so could you have a judge in a trial, 1 of you wrote a paper on this who says, hey, you know how we're gonna decide whether this evidence is admissible?

And if you hit 2 of the same thing, it'll be admitted.

No, because at common law, you had to introduce evidence and the jury had to find, depending on whether it's a criminal or a civil case, but beyond a reasonable doubt.

And it can be reversed on appeal of the evidence is so out of whack with respect to the finding.

So you look to English law, that's a baseline.

They're not very articulate about what else.

There's some articulation that equal protection, you look to at a minimum, the Civil Rights Act of 1866.

And then we have the privileges and immunities clause, which obviously we're gonna spend some time on when we get to the case.

Now, is the 14th amendment in the news lately for reasons other than section 1, Savannah?

No, section 3, no person shall be elected to be a Senator, Representative, or Elector of President or Vice President hold any office, civil or military, or under any state who having previously taken an oath as an officer shall have engaged in insurrection or rebellion against the same.

So what are a couple of states trying to say or argue Savannah?

That certain people were involved on January 6th.

Yeah, so that's the argument, that Trump was involved in an insurrection, at least as a co-conspirator on January 6th.

So who determines whether someone has engaged in an insurrection on this?

So Congress can judge a president or an elector.

I think maybe if it were a congressman or a senator, there might be something to that.

So this is 1 of these things where the constitution doesn't say, so it could be that this is a judicial matter.

It's not an impeachable offense in some cases.

In the case of a president, it may be, or a former president may be impeachable.

So it's complicated and it's not clear who could do it.

But Certain state legislatures, I think Colorado is 1 that I read about, are trying to maneuver it to have a statute in Colorado that you can't be a candidate if you're guilty of insurrection.

That's the difficulty of applying it to Trump or anyone else.

Has this been in the news lately, Savannah?

The validity of the public debt of the United States, including shall not be questions.

So, normally Congress and they've done it already, effective until 20 January of 2025, they have a debt ceiling.

The US can have debts in excess of $13 trillion.

But what's the US government doing, Savannah?

Even when they're right at the edge of that ceiling.

So they can blow through the debt ceiling.

So people have said that the congressionally imposed debt ceiling is invalid as a violation of the first sentence of section 4.

And there's some basis for it in the text of it.

So we'll just start with Savannah on the facts of the slaughterhouse cases on 446.

So what did the Louisiana legislature do, Savannah?

It created a basically slaughterhouse that all the butchers had to use.

Yeah, So that's actually what the Louisiana legislation called it.

It is no said no 1 else can conduct slaughtering operations.

It was in certain parishes, including the core parishes of New Orleans.

Boston did it, New York did it, New Orleans did it.

What did cities do for the people who got into the slaughterhouse business?

So why is the city building beautiful buildings for slaughtering?

The truth is it was a major health risk in 18th and 19th century England and the United States.

And so the city said, ooh, here's what we're gonna do.

We're gonna have a place, Smithfield in London or the Crescent City Slaughterhouse Corporation in New Orleans.

And so certain, are there more butchers in New Orleans than will be able to buy into this company?

Yes, so it is by definition a monopoly, right?

Yeah, So the yes is the city can charge more for the spaces if there's a limitation on the number of spaces.

And so the city is trying to pay for the building and also to support their inspection regime that they're doing.

So, and all of this would be in aid of what power that Louisiana's legislature has.

Nobody can deny that this was a serious health problem in 19th century cities.

So they create the Crescent City Corporation And then the butchers who have not been licensed, do what Savannah?

They sue under both the 13th and 14th amendment.

And the Louisiana Supreme Court upholds it.

Okay, now, Justice Miller is an interesting person.

Yeah, so Nicholas came to me, Nicholas didn't like Justice Miller's opinion.

My goal is for Nicholas at the end of this to tell me that it's a fabulous opinion.

It's got some problems, Nicholas, I agree.

But so do you know anything about Justice Miller?

Okay, Justice Miller is 1 of the justices on the Supreme Court who wrote the most opinions.

And he had a fairly high, we're going to talk about his worst opinion after we finish this, which involves the first suit by a woman to contest a deprivation of a right that women were not allowed to have.

She sued under the privileges and immunities clause.

Okay, so we start off, they are making claims under the 13th Amendment, the privileges and immunities clause, the due process clause, and the equal protection clause, right?

So he starts off, this is typical of a Miller opinion.

Yes, it's how you should on your exam, right?

You know, you said this is what was going on when they passed the 13th, 14th and 15th amendment.

Now, I think he overstates some things here and understates some things, but that's a good way to begin.

And he knew this was a really important decision.

So he sets the stage and he talks about the 13th amendment now first.

In connection, well, no, first we're gonna just go off on a little tangent.

Could Justice Field in his dissent says, oh, it was impossible to have a monopoly at common law, that they were banned by the common law of England.

off on, well, it was common in England that by statute of parliament, they created monopolies, right?

That the crown could own the copyright to the King James Bible.

Only the crown can print that version of the Bible.

It's the beginning of our idea of patents.

Who could settle Massachusetts Bay Colony, Nicholas?

Only the Massachusetts Bay Colony Company that was created by parliamentary legislation.

So there are lots of monopolies at common law that were created generally by parliamentary power.

But what he's really saying is it was hard to create monopolies under the general rules of the common law if you disregard parliamentary monopolies.

And the answer is that that's sort of a silly point because the parliamentary monopolies handled it.

So you didn't need to go to common law to complain about it.

So there were monopolies, but field is wrong in it.

Now, he says at the beginning that all of these 3 things show a unity of purpose.

Ending slavery, he's pretty blunt about it.

Now, then he goes to the 13th amendment and what does he say about the 13th amendment?

He does seem to say, well, this would also apply if it was slavery based on Mexican heritage or Chinese heritage, right?

And the focus is overwhelmingly on slavery against people of African descent.

So, and then he talks about the citizenship clause of the 14th Amendment.

So now we're moving and he's still on the overall thing.

And what does he say about the citizenship clause?

But there's something else there that we're just going to spend a couple of minutes on that's not directly related to this.

Before Dred Scott and before this opinion, just looking at the original constitutional text, is there a definition of how 1 becomes a federal citizen in the text?

Is there the statement that some people are federal citizens?

Is there anything in the original text that seems to indicate that states can create a citizenship category.

Now, it is widely understood that they believe that States could have citizenship and the federal government could have citizenship.

In the original text, is there any clue about the relationship of if you're a federal citizen, are you a state citizen or a state citizen?

That's good because there's nothing there.

So when the Supreme Court got the Dred Scott case, Connie used that omission to drive a racist bus through the constitution and say, if you were a slave or a descendant of a former slave, can you ever be a citizen of the United States?

And because you can't be a citizen, Dred Scott can't sue.

That should have been the end of the case, right?

But he goes on and he strikes down the Missouri Compromise, the Kansas-Nebraska Act, all of which is dicta, right?

So the wording of that clause not only nullifies Fred Scott, but it creates a federal rule that determines how sometimes you can become a state citizen, right?

If you're born in a state, you are automatically a federal citizen and a citizen of the state wherein you reside.

Okay, so now we will pass that for a moment.

So now we come to what is the hardest part and the most discussed in recent years, which is what did they mean by the privilege and the immunities section, which we've already talked about.

So, does Miller give a definitive answer?

Just these general categories of privileges.

But I would say he's got a pretty definitive.

First of all, does he answer, and we've already said it in class, Are the privileges and immunities of the 14th Amendment co-terminus with the privileges and immunities of Article IV?

Article IV covers privileges and immunities of a state that establishes those privileges and immunities and if a person from another state comes into that state, can that visitor be denied those privileges and immunities?

Now, what if the state doesn't create any privileges and immunities?

It's inconceivable, but what would happen?

So now he looks at the section 1, and he says, as we've mentioned before, that bridge the privileges or immunities of citizens of the United States.

Whereas in article 4, what's the terminology rather than United States?

Summarize in multiple paragraphs Osgood's points in this lecture

Structure Osgood's points in this lectures per 5 minutes

For each 5 minutes in this lecture, provide a bullet point summarizing Osgood's points

Summarize in 10 paragraphs Osgood's points in this lecture. 

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Constitutional Law (Osgood) - Fall 2023