[SOUND] In talking about individual rights under the Constitution, I discussed individual liberties in the sense of economic rights. I've talked about privacy. I discussed voting. There's just a few other rights that I want to focus on with regard to those that are generally protected under the 14th Amendment in protecting state and local interference on that basis. One additional right to talk about is the right to travel. The right to travel, like privacy, is nowhere mentioned in the Constitution. But on many occasions, the Supreme Court has said that the right to travel is a fundamental right. When the court has spoken of the right to travel as a fundamental right, what it's been discussing is a right to interstate migration, to move from one state to another, and the travel that entails. One of the first cases that dealt with the right to travel as a fundamental right was Edwards v California in the early 1940s. During the depression, California passed a law that said that no one could move into the state unless the individual could prove the means for supporting himself or herself. The Supreme Court declared this unconstitutional. The court said there is a fundamental right to interstate travel and migration. The California law was declared unconstitutional for infringing it. The Supreme Court made it clear that a state cannot keep people or discouraging people from moving into a state. This is also manifest in cases involving the right to travel that it concerned so called durational residency requirements. A durational residency requirement is a law that says that a person has to live in a jurisdiction for a specified amount of time in order to get a benefit. The Supreme Court has explained that a durational residence requirement would chill interstate travel and migration. The most famous case here was Shapiro v Thompson, 45 years ago. Pennsylvania adopted a law that said that no person could receive welfare benefits in the state until the individual lived in the state for at least a year. The Supreme Court declared this unconstitutional. The court said the right to travel is a fundamental right. The court used strict scrutiny saying the government's action would have to be necessary to achieve a compelling purpose. And, the Supreme Court declared the Pennsylvania law unconstitutional. Similar case, but with a different right at stake, was a case called Sosna v Iowa. Iowa had a law that provided that a person could not get a divorce in the state until the individual had been a resident of the state for at least a year. The Supreme Court, as I discussed earlier in this segment of lecture, they said that the right to marry is a fundamental right. Well, obviously, if somebody is already married and wishes to exercise the right to marry someone else, there has to be a divorce. The Supreme Court said the Iowa law, that required a year's residency in order to get a divorce in the state, infringed the right to travel. The most recent case of this sort was in 1999, is called Saenz versus Roe. California had a law that provided that if a person moved into the state from another state, welfare benefits for the first year of residency will level the state that the person moved from. The case involved a woman from Mississippi who moved to California. Under the terms of the California law, her welfare benefits from her first year would be at the Mississippi level. The Supreme Court declared this unconstitutional as infringing the right to travel. The Supreme Court said that the right to travel is a fundamental right here protected under the Privileges and Immunities Clause of the 14th Amendment to discuss. And the Supreme Court said that laws that interfere with the right to travel have to meet strict scrutiny, having necessary to achieve a compelling government purpose. And the courts said the California law was unconstitutional. One interesting thing about the right to travel is it's a right, as I said, about interstate travel and migration. The Supreme Court has said there's no right to foreign travel, so laws that restrict the ability of Americans to go, say to Cuba. Or laws that restrict the ability of foreigners to come into the United States don't violate this right, because it's a right only to internal domestic travel. Well in addition to the rights that I've now talked about, economic liberties, privacy, voting, travel. One other to mention that I've already discussed is the 2nd Amendment. The 2nd Amendment has an enigmatic phrasing. It says a well-regulated militia being necessary for the security of free state, for the people to keep bear arms shall not be infringed. From 1791 when this was added to the Constitution as part of the Bill of Rights until 2008. The Supreme Court always had said that the Second Amendment was a right to have guns for the purpose of militia service. In this view, any kind of federal, state, or a local gun regulation would be constitutional so long as it didn't interfere with the ability of a person to have a firearm for purpose of militia service. But in 2008, in District of Columbia versus Heller, the Supreme Court held that the Second Amendment also protects right of individuals to guns in their home for the sake of security. The District of Columbia versus Heller involved a 35-year-old District of Columbia ordinance that prohibited private ownership and possession of handguns. It also imposed many restrictions on long guns. And the Supreme Court, in a 5-4 decision, declared the DC ordinance unconstitutional. Justice Scalia wrote for the court, the court was ideologically divided. His opinion was joined by Chief Justice Roberts, Justices Kennedy, Thomas, and Alito. Justices Stevens and Breyer wrote dissents, joined by Justices Souter and Ginsburg. Justice Scalia said, there's two parts to the Second Amendment. There's the Prefatory Clause to the Second Amendment, a well-regulated militia being necessary to a free state. And then there's the Operative Clause. And he said, the Operative Clause is the right of the people to keep and bear arms shall not be infringed. Justice Scalia said, the prefatory clause can't be seen as undermining the rights of the operative clause. Justice Scalia says, it was the original understanding that the Second Amendment was about protecting the right of people to have guns for their own security. So this is confirmed with the understanding of the Second Amendment in the states at the time and throughout the 19th century. Justice Stevens looked at the same history and came to a very different conclusion. Justice Steven said, the Second Amendment is really about a right to have guns for militia service. It said when James Madison initially drafted the Second Amendment, it also had a clause that gave an exemption for militia service to conscientious objectors. Since this shows it wasn't about a right of individuals to have guns in their home. It was a right to have firearms for militia services. And he focused on the phrase keep and bear arms had an understood meaning about military service. Now, the Supreme Court has only decided one other case about the Second Amendment since. It's a case call McDonald versus City of Chicago in 2010. Here the Supreme Court held that the Second Amendment applies to state and local governments. This goes back to what I discussed in an early part of the lecture, how the Bill of Rights is applied to state and local governments by being deemed the incorporated included into the 14th amendment. There was still many unanswered questions about the Second Amendment right. For example, the courts never said, what's the level of scrutiny to be used with regard to this right? I've already explained that the level of scrutiny is tremendously important in determining what kinds of government actions are permissible. If it's rational basis review, the government can pretty much do what it wants. If it's strict scrutiny, laws will always be unconstitutional, but what level of scrutiny for the Second Amendment? District of Columbia versus Heller, McDonald versus City of Chicago, just don't say. Now, they make clear that the Second Amendment right to have guns is not absolute. Justice Scalia said, the government can prohibit who has guns. Like prohibiting people with a serious history of mental illness or a felony convicted with guns. The government can prohibit where guns are located, like prohibiting guns in airports or near schools. The government can regulate what type of guns people have. The government can prohibit people from having bazookas or assault rifles. But beyond that, what type of government regulation would be allowed is something that's uncertain, that's left to be decided in the future. Now, I'm going through the fundamental rights the courts protected. The only that I haven't discussed yet are the First Amendment rights. They'll be the focus of the ninth and tenth parts of my lecture, which will consider speech and religion, respectively. But one thing that's not a fundamental right is worth mentioning, and that's education. It might surprise you to know that the Supreme Court has expressly held that education is not a right under the United States Constitution. The key case here was San Antonio Board of Education versus Rodriguez in 1973. Rodriguez was a challenge to the Texas system of funding public schools largely through local property taxes. The result was that poor areas had a tax at a high rate but still had relatively little to spend on education. Wealthy areas could tax at a much lower rate and had far more to spend on education. But the Supreme Court in a 5-4 decision upheld this as constitutional. Justice Lewis Powell wrote for the court, and he explicitly stated there is no right to education under the 14th amendment under the United States Constitution. Therefore, disparities in funding of schools within the state did not violate equal protection. He also said that discrimination against the poor gets only rational basis review. And the language of constitutional law had said, discrimination against the poor is not a so-called suspect classification that triggers heightened scrutiny. In subsequent cases as well, the Supreme Court has reaffirmed that education is not a fundamental right. Many criticized this decision. Many say that if ever we're going to be a more equal society, it has to be through education. Education of course is the basis for exercising other constitutional rights, such as freedom of speech. And yet defenders of Rodriguez say, the Constitution is about negative liberties, prohibiting what the government can do, not affirmative rights. The Constitution prohibits the government from infringing freedom of speech. The Constitution prohibits the government from searching or arresting, unless there's a warrant. The government is prohibited from denying equal protection of laws. The argument is that there's no affirmative right to government services. In this way, the United States Constitution is different from many around the world, especially many that have been written in recent decades. Many newer Constitutions around the world do create a right to education, or a right to the environment but not the United States Constitution, which is seen as a charter of negative liberties. And of course, if education is not a fundamental right, then not surprisingly, there is also no right to food, no right to shelter, no right to medical care. The government can choose to provide all of those. It does more or less but as a matter of Constitutional Law, no such right exists. I want to talk about one other aspect of due process, a very different aspect that I'll come back and talk about, procedural due process.
