Shaun Salmon - Hi everyone I'm Shaun Salmon, the vice president of MCLE and professional development here at Quimbee. Joining me today is retired civil rights attorney Sam Cohen. Sam is based in New York and over his career has successfully represented numerous prominent activists, groups, and journalists in a wide variety of legal proceedings. Today, Sam will be with me about the 14th amendment and our conversation will cover equal protection due process and more. So I think without further ado, Sam let's get started. I think where I would like to start today is just tell me a little bit about the 14th amendment, specifically some of the language.

Sam Cohen - Hi Shaun thank you so much. And thank you so much to everyone at Quimbee. So let's get into it. We're gonna be focusing today on really the first section of the 14th amendment. Which if you look at the text, it's actually rather lengthy. But the first section is just that all persons born or naturalized in the United States and subject to the jurisdiction thereof., are citizens of the United States and of the state wherein they reside. That's part of it. And that in and of itself gives us birthright citizenship, which is a hot issue. 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 of law, nor deny to any person within its jurisdiction, the equal protection of the laws. So we've got both due process and equal protection there, as well as this birthright citizenship.

Shaun Salmon - Right. So and just like, let's remind me a little bit, like wasn't there already a due process clause in the fifth amendment.

Sam Cohen - There was already do you due process clause in the fifth amendment the fifth amendment which deals with self-incrimination among other things, does note that no person shall be deprived of life, liberty, or property without due process of law. So that sort of raises the question of why did the framers of the 14th amendment feel that they needed to put in another due process clause to a constitution that already had one. And there are really two answers to that.

The first one the big one and something that we'll be talking about a lot today is incorporation of rights. And so incorporation is something you may remember from con law. It is the guarantee of constitutional rights, usually rights from the bill of rights, the first 10 amendments against intrusion by state governments, as well as by the federal government. And this was something that prior to the 14th amendment, and really prior to the civil war was a very unsettled piece of law in the United States, whether the rights guaranteed under the bill of rights were simply restrictions upon the federal government or upon the states as well. And the 14th amendment was intended to resolve that. And as we'll see it didn't resolve it quite as smoothly as the framers intended.

The other answer as to why we have a second due process clause in the 14th amendment is later on in the 14th amendment in section five of the 14th amendment, which notes that the Congress shall have the power to enforce by appropriate legislation, the provisions of this article. So this is an enabling clause for constitutional rights enforcement, which raises a question, how does one make legislation to enforce constitutional rights? And we'll be getting into that in just a few moments, but strangely the answer is rather similar to the way that currently in Texas. Texas is attempting to limit abortion protections under their state Senate bill aid, which gives a private right of action to people who can bring suits against people who they believe are performing abortions in violations of the law. This the way that Texas does, it has a bit of a bounty hunter flavor. But what section five of the 14th amendment allows for besides federal legislation that places limits on state power is also the rise of what we now refer to as private attorney general statutes. Where people have a private right of action that they can take up in order to induce the government to act according to its guarantees. So, yeah.

Shaun Salmon - And just out of curiosity I mean, can you talk a little bit more about how they actually legislate in a way to constitutional rights?

Sam Cohen - Sure yeah. So this was something that got started immediately during the reconstruction period because it was necessary to create enforcement mechanisms for the rights that were extended to newly freed slaves among others and other disadvantaged people. And so essentially making states and making governments follow those rules was an immediate priority. And it was something that was done through what were called force acts at the time. And the third force act, which is also referred to as civil rights act of 1871 is the precursor to our modern statute, 42 USC 1983, which currently provides a private right of action for individuals whose constitutional rights have been violated by state actors or government actors. And that is very specifically limited to state because despite all of these questions of constitutional guarantees claims against federal government employees for violations of rights are not under 42 USC, 1983. Those are governed under the Bivens standard, which is a whole 'nother ball of wax. But this civil rights act of 1871 first gave a private right of action for violation of constitutional rights by state actors. And the language of the civil rights act of 1871 is very, very similar to the language that we still use today.

And that, and other sorts of private attorney general statutes like that allow for private citizenry to act as a check on government. But the common thread through any of these enabling legislations is that they enable the of rights and they enable the guarantee of equal protection under the law. So all of this, we'll see in the case law, that there are themes here of making sure that the law is accessible to everyone and that it treats people the same, regardless of what they belong to groups that are socially disfavored, shall we say? So we spoke about incorporation a bit before and incorporation is something that we'll see that the court has really struggled with as to what the framers meant or so they claim in 14th amendment. But when we go back and actually look at the record around the discussion and the, the framing of the 14th amendment representative John Bingham, who was the principal framer of the 14th amendment very expressly put into the record, that it was intended to incorporate the first eight amendments of the bill of rights as to the states. This was something that was clear in the legislative record, but that the court when interpreting the due process and equal protection clauses completely disregarded, and instead, pardon?

Shaun Salmon - Oh no, I was just gonna say, you might actually be getting to it. I was going to ask like, if we know the framer's intent does that ever actually get discussed in the 14th amendment jurisprudence around incorporation or do they just ignore it entirely?

Sam Cohen - Not much. It gets nodded to occasionally, but this is actually a situation. The way that the courts address the 14th amendment is very similar to the way that the first chief justice Marshall sort of created the judicial review practice in Marbury V Madison, rather than looking at the text of the law, the initial discussions around the 14th amendment get into very philosophical ethical discussions about what rights are truly fundamental. And this fundamental rights framework is something that we've gone back and forth on, but that still is at its base the way that the Supreme court interprets whether rights fall under due process or equal protection. Is whether it deals with rights that are fundamental. And this, this framing is a bit of a trap because the idea of a fundamental right is normative. It is something that is not really subject to any kind of external objective standard, but rather it's something that accords with what people are thinking at that time. And we see in the case law, that what people think of as fundamental rights changes really drastically. It first changes drastically when the court starts to talk about what they considered this, which is in a very, this is in the Lochner era, which you may remember from law school when the court found that the right to contract was a fundamental right. Such that a state could not limit the amount of hours that a bakery could make its workers work.

So it was a fundamental right that the state not intrude on employers demanding their workers work 80 hours a week. That is not in a accord with our idea of fundamental rights today, but for a long time, that was the idea of kind of what it meant. And so this the framework that the court uses gets discussed a lot in Palko V Connecticut, which this case is overruled on other grounds, because in Palko, this is Justice Cardozo. And it, the actual holding in Palko was that double jeopardy was not a fundamental right in this particular situation. And that a person who had already been charged with something on the federal level could also be charged in state crimes. And that there is, and so the construction of the opinion it was sort of to get to a result that would allow the court to get this guy. And did not view double jeopardy as a fundamental, right, since then the case has been overruled explicitly. And it is something that we do have a different understanding of it now, but starting in Palko, we start to see the Supremes talk about fundamental rights as those quote, 'without which neither liberty nor justice would exist'. And essentially the question of a fundamental right is a holistic examination for fundamental fairness under the norms prevailing at the time. And we'll see in the case law as we go forward that the shifts of those norms from time to time, really change things one way or another. So incorporation is something that we're gonna be dealing with a lot here as to which rights are incorporated and which ones aren't.

Shaun Salmon - Sure.

Sam Cohen - First we kind of need to ask the question. It seems like the framer pretty clearly intended the first state rights to be incorporated. Why wouldn't we want the guarantees of rights, to be incorporated against the states?

Shaun Salmon - So why?

Sam Cohen - Well there are a couple of reasons. One is that the most obvious that, it isn't in the text of the 14th amendment saying expressly that these rights are to be incorporated and these aren't and the actual text of the bill of rights, clearly isn't meant for incorporation. Like the ninth or 10th amendments reserving rights to the states and stuff like that. There is no way that you could incorporate that to the states. You can't have the state reserve the rights to the states that it hasn't already reserved to itself.

So clearly there is some textual ambiguity, but also this is something that our conception of federalism and the idea that the central government of the Republic should defer in certain areas to the individual governments of the states is something that we hold very closely. And this is a concern that it really functionally grew out of disagreements among the founding colonies and the schisms that led to the civil war, but is still a part of our system that we do allow a significant amount of sovereignty to the individual states. And then there's also a sub concern that sort of comes up from the way that the federal courts do actually review this stuff. The fundamental rights formulation is slippery, and it is not really very well defined and it's something that can and has over time. Sometimes brought things into federal purview and sometimes out of it. And so the concern of the states that the federal government may just toss federal judicial review onto some of their practices at random is to some degree, a real one. And it is a tension that at least on a policy level, we have to keep in mind when we're considering the incorporation of the amendments.

Shaun Salmon - Oh, sorry. I actually you might also be going to this cause I did see something about the ninth and 10th in your notes, but if the whole bill of rights is like clearly not intended to be incorporated as to the states, what's the point of incorporating certain ones like the ninth and 10th amendment and who knows, maybe that's where you were going.

Sam Cohen - Yeah, well the ninth and 10th are not. And it the incorporation of the rights of the states the main point of it is guaranteeing that state governments do not violate people's constitutional rights, as well as the federal government. And this is something that a lot of my work in my past career as a civil rights attorney dealt with applications of the first and fourth amendments through the action of the 14th to actions of the New York city police department. And if we did not have the due process clause if we did not have this incorporation of rights, the NYPD wouldn't be bound by constitutional protections in its interactions with citizens. And that is something that we absolutely want. And so over time the question is which are incorporated, and the answer has sort of become most of them, plus a few extras that have sort of popped into existence just as a function of the discussion. So I think that it'll be useful at this point, just to take a quick run through what rights are incorporated for our purposes. So we'll go down the list of the bill of rights. First off for the first amendment we've got all of the first amendment rights, freedom of speech, freedom of petition, free exercise, freedom of the press. Plus we have an additional one that didn't even show up in the first amendment, which is the right to expressive association.

Shaun Salmon - Wait so expressive association. I mean why didn't we discuss that when we talked about first amendment?

Sam Cohen - Well, because it's not really a first amendment right. It is one of these penumbras that we're gonna be getting into and everyone from your con law class should be shuttering when I say penumbra, but don't be scared it's gonna be okay.

Shaun Salmon - I shuttered.

Sam Cohen - Yeah. But it, this is discussed in the Supreme court case, NAACP V Alabama. And that was relating to a law passed by the state of Alabama that would require the NAACP to disclose its membership list to the state. And there is a concern that the state would use this information in a retaliatory manner. And so there is not a particular first amendment right. That it, freedom of speech doesn't cover this situation, freedom of press doesn't. And so the justices said to themselves essentially, this is normatively really wrong. And it seems like there is something that is sort of incident to first amendment expression, that there needs to be a right to associate with other people for the purposes of it without government intrusion. And so this is a right, that really comes up in due process and equal protection, but no one goes out to expressively associate. It is not an action that you can undertake at any one given time. It is a state of being. And so the state of being gets protection, but it isn't really a first amendment right because it isn't, it is sort of a form of, of expression by default but there's no actual content to it.

Shaun Salmon - I mean I feel like the state of being were the supremes just like in a really good yoga class when they did this one.

Sam Cohen - Yeah.

Shaun Salmon - You know.

Sam Cohen - I mean it, yeah just really started thinking about Alabama and those vibes.

Shaun Salmon - Those vibes.

Sam Cohen - Yeah sometimes the discussions on this stuff get very metaphysical and we see that especially later on, in Griswold V Connecticut where we, where we get into the penumbras and emanations. But yeah it is a very, a very mystical line of thinking around due process. That moving on through the incorporated rights, the second amendment is incorporated as against the states. That one is a no brainer. The third amendment quartering of troops, strangely there is a circuit split as to whether the third amendment is incorporated.

Shaun Salmon - Really?

Sam Cohen - Yeah.

Shaun Salmon - How a circuit split on that?

Sam Cohen - For some reason the Supreme court just is not in a rush to resolve this issue is the short answer. But you can think about it that there would really be different geographical concerns about whether the government should have any ability to quarter people that come up in different areas. Like in like California for like wildfire fighting having an enactment that people have to put up firefighters who are helping to put out giant wildfires that may not offend the third amendment in the same way that the concerns the framers really envisioned. And I'm not saying that California isn't one of the states that holds to the third amendment. But just to say that you can see some situations where it would not normatively really be a problem for the government to say, we need to put some people up from time to time for your own good.

Shaun Salmon - Right. And where maybe citizens wouldn't I mean where they don't even need to feel forced because it's possibly an obvious decision that they would naturally be inclined to make anyway.

Sam Cohen - Yeah. And that is really in all these situations, if no one calls the cops, everyone has all the rights in the world. This is just about what the government has the right to touch and what they don't and what the government has the right to induce. Obviously you can invite a member of the armed forces to have a sleepover, anytime you want. But the third amendment says---

Shaun Salmon - I think I'll pass.

Sam Cohen - But the third amendment says that the armed forces can't induce you to do it by force.

Shaun Salmon - Got it.

Sam Cohen - Yeah fourth amendment, all of those protections are all incorporated as the states. That is not in any way in controversy. Fifth amendment all of the rights are incorporated except for grand jury indictment. Grand jury indictment is not incorporated to the states.

Shaun Salmon - And I mean, we obviously there's a lot you can get into on this, but I'm just curious, like, is there a very brief short answer as to why that's the one part of the fifth that's not?

Sam Cohen - Yeah.

Shaun Salmon - If it's not brief it's okay.

Sam Cohen - Yeah I mean the grand jury process. Yeah I could rave about the grand jury process it's problems for ages.

Shaun Salmon - Sure.

Sam Cohen - I think that it it's well encapsulated in a quote by the former chief justice, the New York court of appeals, which is new York's top court for people here we call our top court, the court of appeals and our lowest court the Supreme court. Just to confuse everyone.

Shaun Salmon - Everyone.

Sam Cohen - Chief justice Sol Wachtler, once very famously said that "A motivated district attorney can indict a ham sandwich" "before a grand jury." So and that has been fairly consistent with my experience. The grand jury process is one that does not have a right of confrontation that is completely run by the state and where evidence can really be presented in a way that can be very misleading and where the amount of oversight that's available is not great. It is something that does we can see the purpose that it brought in the law of having a objective jury of citizenry confirm serious indictments, but there are other ways to go about it. And by the time that we started discussing incorporation of rights beyond things like the right to contract and started discussing incorporation of criminal justice rights well the grand jury has not been fully discarded anywhere, the availability of alternatives is very clear. And so to the extent that the state does not infringe upon the other person's other constitutional guarantees that are enunciated here and incorporated through the due process clause. The idea is essentially if it otherwise passes constitutional muster it's okay. So most of the fifth amendment is incorporated except for the grand jury thing and that's not so much a problem.

And in the sixth amendment similarly, all of the sixth amendment rights are incorporated except for the right to a local jury. And I'm just gonna jump ahead of your question there, because I was it's obvious and I can see your face, but it here, the text of the sixth amendment really is pretty important here because it is this kind of comes down cannons of construction, like the text of the sixth amendment sets a lot of grants of very specific rights, like the right to counsel, a right to confrontation, compulsory process, and expedient public trial. And also then indicates in another clause that jurisdiction will be in the state and district where the crime is alleged to have taken place. And so like under the cannons of construction, we've got this one clause that's very different from all the other clauses. Which all the other clauses set up these rights without limitation. And we have this one, that's just a jurisdictional clause saying that the jurisdiction will be where the crime is alleged to take place in that state and in that district.

So part of that clearly just doesn't apply the states. A state is not going to place jurisdiction for a crime that it is prosecuting in another state. And to the extent that the district comes up like that is, I don't have a site particularly on this point, but my sense is that it's just such a [Indistinct] point that the Supremes aren't gonna get involved. And also it's something that we see in a lot of these cases that we'll be reviewing that a lot of the times really exceptional cases end up making the law. Where the state does act in a way that is normatively shocking, that causes the Supremes to then say, wait there is a fundamental right here. And we just don't see that around venue for trials that much. So it's just not, not something that's up there moving on through there, the seventh amendment, which I will not blame any of you for not remembering is this just allows for the right to a jury trial, for all cases in controversy with a value over $20 is not incorporated. But even though there is no federal due process right to a jury trial for cases exceeding $20, I'm not personally aware of any state where a jury trial is not available in civil cases of essentially any jurisdiction.

So again it's something that this probably just has not come up issue for the court to rule on. And in the absence of that, why bother? Eighth amendment eighth amendment incorporation. The broad strokes are really clear in that the prohibition of cruel and unusual punishment is incorporated against the states. There are a few other sections of the eighth amendment that we don't think about as often that are less clear. One the eighth amendment prohibits the levying of excessive fines, and that expressly is not incorporated against the states. And there, you can see the federalism concern that just having the federal government weigh in on what fines are reasonable and what fines are not as levied by states just seems like a sort of a normative overreach in the federal government. The other point in the eighth amendment that is unclear as to whether it is incorporated it's the prohibition of excessive bail. This is something that it is not expressly incorporated. There have been kind of one off cases here and there that have sort of discussed the idea but there aren't any concrete holdings on it. It's an area where you could make an argument but fundamentally it if you're arguing bail amounts, then you're probably taking a different class than this because due process probably isn't the way that you wanna do that. So we've got one through eight there mostly incorporated.

There is another doctrine which is gonna make your eyes cross here. Which I'm gonna try and get through as painlessly as possible, which is called reverse incorporation. Which takes the due process rights as applied to the states and the ways that they are applied to the states and applies them back to the federal government reflexively. So this is something that one of the first cases of reverse incorporation is the case of Bolling V Sharpe, which involved desegregation of the district of Columbia public schools. And took the decisions finding desegregation to be required under the law for state schools and just apply them to the federal government. And so this is actually taking the 14th amendment due process back into the fifth amendment due process. And the 14th amendment guarantees as to the states were found in this case Adarand Constructors, V Peña, which was a Supreme court case in 1995. The 14th amendment due process guarantees to the states as against the states are applied against the federal government through fifth amendment due process.

So this is starting to look like Charlie Day's murder board from its always sunny in Philadelphia here, the way that these rights are going. And what the federal government, what the Supremes were doing in Adarand was actually a little bit sneaky in doing this. Because the dis the decision in Adarand Constructors V Peña, overturned federal incentives for hiring minority construction groups. This was something that from the beginning of equal opportunity through 1995, the federal government had policies that incentivized using businesses owned by people considered to be disadvantaged because of their racial or ethnic minority as a form of sort of restorative justice. But by 1995, and this is after several years of the conservative revolution under new Kenrich and such. The idea of what it was proper for the federal government to do in terms of viewing people had shifted again. From the idea that we need to give disadvantaged people a hand up and an opportunity to compete for these things against these better resource people to these minorities are getting all of these plum contracts from us, and that's not fair. And so in the five, four decision in Adarand, the Supreme court held that all racial classifications are subject to strict scrutiny, regardless of whether they benefit or harm on the basis of race. And that that applies to the federal government as well as to the state governments.

So we can see here that the holding itself is something that we can kind of get behind here. But the decision in this specific case that that giving advantages to minorities and contracting to make up for historical inequalities is unconstitutional is something that might be a bit more problematic for some of us. And while we do have this reverse in corporation, which has been discussed holding the federal government to these due process getting equal protection guarantees, the Supremes have never quite gotten around to overruling the notorious case of Korematsu versus the United States from world war II, which held that the United States could properly detain people based on their ethnic background as a security measure during war. And that would very clearly it seemed fall under this reversing corporation of due process. That this is Korematsu, definitely involved, a racial classification. Japanese people need to go into camps. But while they have held this up for the purpose of making contracting more competitive, they have not gone back and overruled Korematsu. Though it is presumed under the standard that Korematsu would not be able to leave. So beyond the incorporation and beyond the racial classifications and equal protection stuff in due process, our approach deals with fundamental rights. And I want to take a little bit of time going through some of the fundamental rights that are currently recognized where they come from, the cases they come from and what they mean. And this is something that you'll see as we go through that. These are rights that have expanded dramatically in just the last 60 or 70 years.

So starting in the civil rights era, we had like the right of interstate travel, which were being found. And there that was just fundamentally a way for the government to address state actors, being inhospitable to members of minorities from outta state. And this is something that while it is, it seems kind of like a no brainer. The ability to travel from place to place within the United States, without fear of being treated differently is a big thing. And it is not a guarantee. There are still what are known as sundown cities in places, places where people of different backgrounds should not let the sunset on them. But starting with Shapiro V Thompson in 1969, the Supremes said that this is something the federal government does have the right to touch and that it can weigh in on local practices are interfering with people's right to travel. And another one that is really fundamental but that is tough to define is the right to privacy. It you may remember from constitutional law that there is not an explicit right to privacy in the text of the constitution anywhere. But part of that is that just at the time of the framers, the idea that beyond a right to be secure in one person's in effects that you would need an additional right to have people not listen in on you just was not within understanding. Is there was a lot of space to go around. And if people weren't messing with your stuff, then that was essentially privacy. So the right to privacy was first read in, in a case in 1891 Union Pacific Railroad Company versus Botsford, but it has been discussed and put on a bit more of a solid footing in the Griswold line of cases.

The right to marriage is something that comes up several times in our jurisprudence. The first one is Loving versus Virginia, which finds that the fundamental right to marry who you want to marry, can't be abridged by the state based on their race. And then we had a companion to that in 2015, Obergefell, pardon V Hodges, which found that the state cannot infringe on your right to marry based on the gender of the person who you choose to marry. And in between in those two and a rather important case along that way, we had a fundamental right found to freedom from government penalties for consensual adult sexual behavior in the case of Lawrence V, Texas. And I'm sure there's a more elegant way to say that, but the function of the Lawrence V Texas case was to find a Texas state law outlawing sodomy, to be overly intrusive. And to find that essentially it should not be the place of the government to monitor or police what consenting adults do in their own bedroom. Some of the rights that are more recent that are a bit odd in 2000, in the case of Troxel V Granville, the Supremes found that we have a fundamental right to parent our own children.

Shaun Salmon - Wait.

Sam Cohen - And this is, yeah exactly.

Shaun Salmon - Yeah. How is that even a question?

Sam Cohen - It, this is one of these cases of bad cases making weird law. In the Troxel V Granville case. This happened in Washington state and the law in Washington State around the state's ability to change custody arrangements was found to be too broad, where the person had a custodial parent.

Shaun Salmon - Interesting.

Sam Cohen - Because in this particular case the kids were living with the dad had died and the dad's parents wanted to visit with their grandkids more than the mom wanted. And she they went to court, the grandparents went to court and they got to court to order more visitation than the mom wanted. The mom said, "This doesn't work for me like this isn't practical for me." "This isn't what's best for the kids." And the issue that got up to the Supreme court was whether Washington state in its sort of duty to children who have a parent can overrule the parents' wishes when the the child's welfare isn't at issue. And so it's just one of these cases that just kind of like straight down the line, found that that this was inappropriate here. It's inappropriate for the state to order a custodial parent, to take their kids, to visit their grandparents more than is convenient for them.

Shaun Salmon - Or to literally take their kids anywhere like that is at actually a case where they were trying to just like dictate a schedule. That's wild.

Sam Cohen - Yeah, no they wanted to visit with their grandkids more. And you get the mom she's lost her husband. Like it these are tough things for her.

Shaun Salmon - Oh my gosh and for the kids have a lot of stuff.

Sam Cohen - And for the state to weigh in. Yeah.

Shaun Salmon - They have a lot of needs they have a lot of stuff going on. I mean that is weird case.

Sam Cohen - Yeah. But normatively, you can see how it was like right down the line for the Supreme court to find a fundamental right to parent your own children.

Shaun Salmon - Sure.

Sam Cohen - And another weird one that came up in 2010 is the right to self defense was found to be fundamental right in McDonald versus city of Chicago.

Shaun Salmon - Okay I was in law school in 2010. I don't recall this coming up I mean, did was there not a right to self defense, a fundamental right to self defense before 2010?

Sam Cohen - There's always been self defense in the law, but we call it a defense.

Shaun Salmon - Right. Not a right.

Sam Cohen - Yeah calling it a right to self defense is weird.

Shaun Salmon - Interesting.

Sam Cohen - And that I mean, it almost suggests like we're encouraged to self defense. Which is a matter of policy the law doesn't wanna do.

Shaun Salmon - Right.

Sam Cohen - But the ruling in McDonald versus the city of Chicago added self-defense to the second amendment, which previously and still actually states in its text that a well regulated militia is the purpose of the right to bear arms.

Shaun Salmon - Oh yeah don't even get me started.

Sam Cohen - But starting in 2010, self defense is a fundamental right under the second amendment for the purposes of court's review.

Shaun Salmon - Wow.

Sam Cohen - So all these fundamental rights we're getting into the point now where people are gonna start rolling their eyes. And I hope that I can get us through this relatively painlessly, where do these fundamental rights come from? Because these things are not mentioned in the constitution. They are not mentioned anywhere. They come from as was being discussed in Griswold versus Connecticut in 1965, the penumbras and emanations of other constitutional rights. And this the quote from Griswold, which is given a thousand gray hairs to law students "Is specific guarantees in the bill of rights," "have penumbras formed by emanations from those guarantees" "that help give them life and substance." I'm trying really hard not to roll my eyes, just reading that, but within the con.

Shaun Salmon - Is it just mumbo jumbo or is it like mumbo jumbo that means something.

Sam Cohen - Yes, it is both. It's mumbo jumbo. It is razzle dazzle and is also the foundation for controlling law in this area. And so even if we approach it with a degree of skepticism and I'll explain why it actually kind of makes sense beyond the mumbo jumbo, because it is controlling law and because it is the doctrine that we're working under that even if we roll our eyes at it, we still need to understand it very well. And so the Griswold case dealt with whether the government had the ability to restrict the sale of contraceptives to married couples. And in finding that they didn't, the government found that there was a zone of privacy that dealt with marital relations that the government couldn't come into. And in the case at Griswold, and this is at 484 and 485, in the case, if you wanna take a look at it, they really nailed down all of the rights that go into that. And it's a it's quite a menu. So the right of privacy that is announced in Griswold comes out of first amendment, right to association. Which again is something that they read into the first amendment, like six years before or seven years before in NAACP V Alabama. The third amendment, right to be secure against non-consensual government intrusion into the home.

 And that's just a fascinating reading of the third amendment. Like and it's something that folks who are ever dealing with this issue. I should hope that it doesn't come up very much, but the reading of the third amendment in Griswold is fascinating. The fourth amendment freedom from unreasonable searches and seizures, it does make a lot of sense that there is a right to privacy that is implicit in rules that set forth very, very strong restrictions on when the government can intrude upon people's property. And they also describe the fifth amendment guarantee against self-incrimination in Griswold as a zone of privacy. Like so we've got a couple of privacy interests already that are really valid and a couple that are a little bit shakier. And then the for a final little Spring of mint on top in Griswold, they discussed the ninth amendment reservation of rights, not enumerated in the constitution to individuals in the states as supporting this right to privacy. And so it's important to kind of understand the recipe for this because our reproductive case law line has followed Griswold and has really built upon this concept. And even though there are areas of that that are under challenged, this reasoning is very entrenched in modern decisional law and is very unlikely to be discarded. And even we've been seeing in the news that during this upcoming Supreme court term, the Supremes will be ruling on Dobbs versus Jackson Women's Health Organization, which is their docket number 19-1392. Which is a challenge to row.

But looking at the briefs and Dobbs, they're not challenging the idea of a zone of autonomy in reproductive decision making that has flown out of these cases. Rather they're challenging the row and progeny's viability standard. That essentially that it, they want to move the date forward that the government cannot, that the government can intrude. And so the underlying concept of a zone of privacy for reproductive autonomy is not being challenged in Dobbs, which is not to say that we may not see an opinion in it that that gets there, but none of the Supremes that I've seen have really been pushing hard on this issue in the same way that. Scalia had a while that he was kind of pushing on how silly the construction of the due process case law line was. It's not much of an issue now. And just to kind of like wrap this idea up around fundamental rights the functional reason for that maybe that these fundamental rights labels are really functionally very useful in that they allow us to address issues that are normatively shocking, or can be couched that way. And the Adarand case that I mentioned before, which eliminated these equal opportunity advantages and contracting sort of underscores that because before the idea of excluding minorities from winning contracts was shocking by the 1990s normative expectations had shifted. And the idea of minorities winning contracts with higher bids than members of the majority was shocking. At least to the powers before the court. And so it gives a flexibility to the law.

So we've got about another 15 minutes left, and I want to just do a couple more things on due process before getting into the standards for equal protection before we go. Just so that we can kinda have equipment on every part of this. So one of the big things in due process that people tell me that they have trouble understanding is the difference between procedural and substantive due process. This one is pretty easy, mainly you've really gotta focus on the procedure in procedural. Procedural due process is the assurance that legal or governmental procedure that affects life, liberty or property affords notice an opportunity to be heard before an impartial adjudicator and reviewability of determinations. And these aspects of due process are all kind of no brainers to those of us with legal training. That there needs to be advanced notice of a proceeding that the person needs to have an opportunity to say their side of the case, and that the adjudicator is not going to be someone it's not gonna be a kangaroo court. And that to the extent that it is that there is some mechanism to review determinations. And so clearly procedural due process doesn't come up very much in formal courts beyond just sort of like day to day kind of remedial issues that are generally dealt with through, through just normal process. And in the criminal context, various violations of due process are reachable under exclusion of evidence for example. But where you should look for due process violations in kind of a larger context is largely in administrative functions. This is something that I saw a lot with the state liquor authority in New York.

A lot of the times the bureaucracies that states run are archives set up functionally and of as they go and can kind of fall into patterns that deny due process. And so being aware of those patterns and thinking critically about when there might be a violation of procedural due process, is an angle in dealing with those sorts of agencies. And it is a threat that some of them respond to. But again remember professional responsibility you can't make a threat that you might not follow through with. So don't threaten this if you're not gonna do it. Procedural due process is pretty clear. Substantive due process where all these fundamental rights come up is almost deliberately murky. And it, what it really comes down to in substantive due process is whether the government has an adequate reason to engage in a procedure affecting the life, liberty or property of another. And this has changed a lot from the Lochner era when things like the private right to contract was found to be an area that the government couldn't affect, to the point where the government could not cause a bakery to not force its workers to work excessive hours per week. To the more modern conception of substantive due process that came out of the Warren Burger courts, where were really looking more functionally at the way the government interacts with people in everyday life. And so substantive due process is something that is, is sort of tough to allege on its own. It generally tends to come with other indicators unless you've just got a fundamental rights issue. So remember your fundamental rights and if one of those comes up, you may have an issue there that you can reach.

Shaun Salmon - So, Sam I mean, can we talk a little bit about the basic equal protection inquiry?

Sam Cohen - Absolutely. So in equal protection cases, what the court is determining and reviewing a law is that is a distinction in the law that is drawn by the government between different people justified by a sufficient purpose. So laws can treat different people differently, but is the reason sufficiently justified? And we actually use different inquiries for if a law is facially neutral, or if a law is facially discriminatory.

Shaun Salmon - Well I mean how many facially discriminatory laws are actually out there?

Sam Cohen - You'd be surprised they do come up fairly often. They don't tend to make for interesting case law because they tend to be no-brainers. They tend to get disposed of on the district level and they don't make it to appeals. But also this is something that you really need to consider as a practitioner is when you are looking at a question that implicates equal protection, can you plead the law as being facially discriminatory? And it's something that, you need to think about if you can make a straight-faced argument, that the way that the law is written has a facially discriminatory effect. Like even if it doesn't say on the face of it, say this law only applies to Jews. There may be ways like in the Hialeah V Church of the Lukumi-Babalu Aye case from a first amendment where there was a law that was about chicken slaughter, that was very clearly focused at members of this voodoo church. And so there, even though the law was read as being neutral at first, it was found to be facially discriminatory later on.

So, but facially discriminatory laws are considered with a degree of scrutiny that's dependent on the effective on the affected class. And the neutral ones are too, but you need to make an additional showing for facially neutral laws under the equal protection and inquiry, which is that you need to show that there is a discriminatory purpose and a discriminatory impact that essentially that there was that this was the function of the law, as it was designed. Not only that it is affecting this person in this way. So those are the basics and we'll get into the levels of scrutiny now, which I think will help lay that out a bit strict scrutiny is for race national origin and sometimes for immigration status. And when something is being reviewed under strict scrutiny, the burden is on the government to show that their action was reasonable. This is in civil court so it's a preponderance of the evidence standard 51%. But they do have the burden and under strict scrutiny, the must be necessary to achieve a compelling government purpose. And you remember necessary and compelling for strict scrutiny. All of these standards are a little bit rubbery, but the necessary to achieve a compelling government purpose is strong language. And as we'll see it's something that it has to be pretty compelling.

Intermediate scrutiny this is the middle. Intermediate scrutiny of these classes are gender and non-marital children. Like children from out of wedlock and laws treating non-marital children differently from marital children say. Once again a challenge to these sorts of laws, government has a burden of proof on a preponderance standard, and the law has to be substantially related to an important government purpose as opposed to necessary for a compelling purpose. So again the words are a bit rubbery but the main thing is intermediate scrutiny is for issues that deal with gender or non-marital children. There are a few other intermediate scrutiny categories, but the common thread on strict and intermediate scrutiny categories of equal protection are that they're things that you can't change. They are just the way that you are as a person and if there isn't one of those, then pretty much everything else falls under what's called a rational basis review. And there the burden is on the challenger, not on the government, still a 51% preponderance. And the law must be a rational way of doing something the government may legitimately do. Which is a very deferential standard, but it is not an absolute rubber stamp. And I've got a funny case to prove that. This is United States department of agriculture versus Moreno from 1973. Held that a law with the express congressional purpose of discriminating against hippies in a food stamp exemption for commercial homes was not found to be a legitimate purpose. So sticking it to hippies is unconstitutional as a, it is not a, a rational way to do something the government may legitimately do.

Shaun Salmon - You don't say.

Sam Cohen - Yeah so it does come up.

Shaun Salmon - Wow.

Sam Cohen - Yeah and then the other thing to keep in mind here is that, when you are dealing with fundamental rights issues that are dealing with equal protection, they get put under the strict scrutiny standard. And the strict scrutiny standard is really hard for the government to overcome. So if you've got a due process issue that can also be read as an equal protection issue, then you should really consider finding a way to plead your plaintiff as a class of one. And let me talk a little bit about class of one equal protection. So this was confirmed in a case called the Village of Willowbrook v. Olech. And and this is like, again, another one of these cases where just really strange situations make strange law. This fellow Olech had a property in Willowbrook, Connecticut. And he wanted to get some kind of a connection to the public water system. And they the village said that they would give it to him if he gave them a 33 foot easement onto their property to make it happen. And he sued saying, "Everyone else only had to give a 15 foot easement." "These guys are out to get me."

And the Supreme court in Village of Willowbrook v. Olech found that these guys are out to get me, can plausibly state a class of one for equal protection purposes when there is some specific government action that is very different as for to one person than it is to others. And there it's just that the government there was asking for more feet of easement from him than they did from other property owners and without getting into any reasons that they had at, it was just found that, that he was subject to the class of one equal protection. And that this was a form of arbitrary or discriminatory government treatment. And so equal protection after Village of Willowbrook V Olech is a really great way to litigate fundamental rights issues because that class of one can be very expansive. Except, and this is something that is another tension that we see in the law consistently in constitutional law. Then a few years later, in Engquist versus the Oregon department of agriculture in 2008, the Supreme court found that class of one equal protection was not available in the public employment context. So claims of people claiming violations as government employees can't access this class of one protection.

Shaun Salmon - Isn't that like a little bit sneaky?

Sam Cohen - It is. Yeah, but this is the tension that we've seen in the law and in this fundamental rights focus throughout. That there is always a desire on the part of the government to extend its power. And this is something that we discussed in the first amendment as well. That there will always be an impulse of government to be more expansive, to take more, to control more. And the tension between that and our conceptions of justice and the guarantees in the constitution is constant, right. It is always a push and pull. And we are seeing like these sets of due process guarantees that we have grown up under like feel very normatively unexceptional to us. But to people only 60 or 70 years old, like there have been some really remarkable changes based on the rights that were really legislated that were really judicially created by the Warren Burger courts through their readings of the due process and equal protection clauses. And there will always be a tension that the government will want the minimum amount of inconvenience to its own agenda.

And I want that reminds me, I kind of wanna close with a quote from George Washington that I like a lot that I think that this sort of encapsulates. George Washington famously called America "An experiment in ordered liberty." And I like that formulation because, and I think that is something that constitutional lawyers need to hold in mind because the formulation of an experiment indicates that we do not quite know what we are searching for yet, but that we're tweaking parameters here and there. And that we're trying to find a balance between order and liberty. And I think that we've seen throughout this class that normatively, that balance has shifted from time to time. That, at times, order has been of much greater concern than liberty, per se. Like with the Lochner case, where the idea that the government shouldn't get involved in private employers' decisions that the social order shouldn't be disrupted by the government. It was more important than the idea that the liberty of individuals should be enforced by the government. And that that shifted dramatically, and it's something that can shift again. And part of your job as constitutional lawyers, I'm happily retired now, is to really be tracking that and to be critically looking at that and to be the storytellers of justice who really continue to make the due process and equal protection clauses come to life.

Shaun Salmon - Awesome, so, oh, anything else?

Sam Cohen - No, I think that's a really good point to leave it on.

Shaun Salmon - I, so do I, so I guess what I would love to do now is just, I think that's like a perfect place to wrap up the interview, I guess, portion of this, but I actually just wanna say, like thank you so much for joining us. If you haven't checked out the interview on the first amendment yet, you definitely should. And we'd love to have you back to talk about something else. And in the meantime, if you want to follow Sam or see what he's doing, can you tell us where we can do that?

Sam Cohen - Absolutely, yeah. I am retired from the practice of law, and I'm currently a strategy and communications consultant for individuals and businesses in New York. You can fall remind me on LinkedIn at Sam Cohen NYC. Thank you. And I'd love to be here again.

Shaun Salmon - Awesome, okay. So thank you so much. And we will talk to you soon.

Sam Cohen - Very good.

Shaun Salmon - Bye Sam.

Sam Cohen - All right. Thanks so much, Shaun bye.