DOCTRINE/THEORY OUTLINE
I. Constitutional “Family” Rights
INTRODUCTION on privacy…. The Substantive Due Process actual right stems from the liberty provision of the due process clause found by Lochner’s liberty to contract because the liberty provision of the D.P.C. actually contained substantive due process. Substantive DP will be our first issue we will deal with in the course. Angela has been in CUNY for 3 yrs, came from Syracuse. Children’s Rts are her special interest.
Substantive DP is unenumerated rights. Scalia et al caution against Spr Ct acting as “Super Legislature” finding rights that are enumerated within the text of the Constitution. History is important in family law.
General Rule: 14th “No state shall…” DP & EP clauses.
Police Power of the State: inherent & plenary power of a sovereign to make all laws necessary & proper to preserve the pub security, order, safety, welfare.
A St’s 10th Am rt to establish & enforce laws protecting the pub health, safety [MORALS] and general welfare, or delegate this rt to local gvt, subject to DP.
Review 10th Am: Rts retained by We the People vs. Rts delegated to gvt..
Spr Ct recognizes Rt to Priv. Umbrella rt under which several sub-rights fall.
Nature of prv rt: Fundamental, but not absolute.
Scope: Rt to marry, establish home and bring up children. Contraception, abortion, rt to refuse lifesaving tx, but not suicide or assisted suicide.
Rational relationship test and strict scrutiny.
Fundamental rt: Twin Star test: “So rooted in the traditions & conscious of our people as to be ranked as fundamental” or so important “that neither liberty nor justice would exist if the rt were sacrificed.” Requires careful description of the rt.
Glosses on measurements: abortion (strict scrutiny, rational basis, undue burden, Salerno – no set of circumstances). Marriage- (substantial & direct precondition to applying strict scrutiny, if precondition not met then rational basis applied); marriage must be reasonably related to legit penological interests in prisoner context.
Substantive DP vs. EP: will cover later.
State constitution vs. federal constitutions: states may give more rights to individuals, but can’t take away federal rights.
Standing: who is the proper person to bring the issue forth?
Standard of Review: whether rt is fundamental is crucial to outcome. Roe started out strict scrutiny and is now moving toward deference to state. What do we think the law should be? We will critique the law and policy in this course. Domestic Violence and Child Abuse are 2 examples where police power is wanted & needed. Scalia’s “culture wars” – protecting the morals of the population.
a. Contraception – In Griswold, there was no grounding of privacy in the 14th Amendment because of Lochner’s overrule of no substantive
iew. “I like my privacy as well as the next one, but…” Can’t act as Super legislature. J’s biases should not enter judicial decisions.
State’s interest: criminalized use of contraception (as compared to Eisenstadt which prohibited distribution) Wanted to deter illicit sex (outside of marriage).
Standard/test: Gvt purpose to control/prevent activities constit subj to st reg may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
Statute: invades marital privacy. Privacy rts are fundamental, marriage is in the zone of privacy, therefore the stat is unconst.
Note: illicit sex is activity constit sub to st reg.
Conclusion: stat sweeps too broadly, invading marital prv and therefore unconst.
Eisenstadt Review:
Single people do not have the fundamental rt to use contraceptives, but can’t have a stat that discriminates against a person b/c of marital status.
Griswold’s issue was not the manufacturing of contraceptives, but the use of by married people.
Confusion of Eisenstadt: did the court name a fundmt rt to use contraceptives or was this only an EP case?
