THE PROBLEM WITH FUNDAMENTAL RIGHTS IS THAT THEIR EXTENT IS AMBIGUOUS
This is why we tried to distinguish rights as:
substantive
procedural
vested
executory
hortatory
in personam
in rem
civil and political (Bürgerrechte)
social rights (Vornahmerechte)
-1. Procedural Due Process (verfassungsgebotene Verfahrensrechte)
*notice
*hearing
*Proportionality Principle = Verhältnismäßigkeit
A *necessary* means to a *permissible end* (Zweck-Mittel Verhältnis)
= proportionality in the broader sense, i.e. latu sensu
-2. Substantive due process? (verfassungsgebotene materielle Rechte)
*Impairment of the obligation of contracts?
*Right against uncompensated expropriation?
*Validity of the public debt?
*Principle of free trade?
*Principle of non-discrimination?
In Germany we would look at those as aspects of an economic constitution (Wirtschaftsverfassung)
HOW TO GET RID OF AMBIGUITY?
1. LEGAL PRESUMPTIONS.
2. LEGAL HIERARCHY.
1) If it is possible to interpret federal or state legislation, the federal constitution, and internationally consistently then such an interpretation will apply.
It is only where there is an unavoidable conflicting interpretation where the court is compelled to choose that the hierarchy of law:
In principle the addressee of the federal constitution is the federation, not the states nor the people.
until the XIVth Amendment (Civil War).
*When does a fundamental right apply to the states?
It is the same question as whether the constitution applies overseas! Or to foreigners!
Procedural Due Process: Murray’s Lessee v. The Hoboken Land and Improvement
Company, 18 Howard, 272 (1855)
undoubtedly intended to convey the same meaning as the words, “by the law of
the land,” in Magna Charta.
“The Constitution contains no description of those
processes which it was intended to allow or forbid. It does not even declare
what principles are to be applied to ascertain whether it be due process. It is
manifest that it was not left to the legislative power to enact any process
which migh be devised.”
to those settled usages and modes of proceeding existing in the common and
statute law of England” (Context; History)
Fundamental Rights as Ordered Liberty: Palko v. Connecticut, 302
U.S. 319 (1937)
as a general rule, binds only the federal government, not the several states
nor private persons. There are however exceptions to these general rules.
States may be bound by specific provisions of the constitution which address
them directly. Moreover, it is sometimes argued that the XIVth Amendment
incorporates the bill of rights and applies them to the several states. The
pre-civil war “no incorporation” doctrine was replaced in the post-civil war
era. Eventually the court concluded with “selective incorporation”. Some
provisions of the bill of rights also bind the several states, which is the
topic of our next case, Palko.
2. Assuming that the prohibition of
double jeopardy in the Fifth Amendment applies to jeopardy in the same case if
the new trial be at the instance of the Government, and not upon defendant’s
motion, it does not follow that a like prohibition is applicable against state
action by force of the Fourteenth Amendment.
force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty,
and thus, through the Fourteenth Amendment, become valid as against the states.”
people as to be ranked as fundamental.”