Constitutional Law II Outline

Rao, Constitutional Law II, Spring 2009

What is a fundamental right?
In finding a right to be fundamental we must look at if it is “deeply rooted in this Nation’s history and tradition.” (Moore v. E. Cleveland) and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” (Palko v. CT.)

Strict Scrutiny: govt. have to show that the means employed are well tailored to meet a compelling government interest. This is applied with “fundamental rights”

I. The Revival of Substantive Due Process, for Noneconomic Liberties: Reproduction; Family; Sex; Death
A. Substantive Due Process and Social Rights
1. The notion of substantive due process never really disappeared in the 20th century—it only changed its focus from economic to non-economic liberties.
2. MYERS v. NEBRASKA, (1923): The Court reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of foreign languages to young children. Justice McReynolds found that the law “materially” interfered with “liberty;” “with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.” There were no adequate justifications on these restraints of liberty.
3. PIERCE v. SOCIETY of SISTERS (1925): Justice McReynolds sustained a challenge by parochial and private schools to an Oregon law requiring children to attend public school—this law interfered with the liberty of parents to direct the upbringing of their children.
4. The logic of having a court closely review state and federal legislation under the due process clause (the hallmark of Locnher), using heightened scrutiny that was traditionally associated with contract in Lochner was beginning to be associated with the social sphere in Myer and Pierce.:
5. Myer, Justice McReynolds: “The liberty guaranteed by the due process clause of the 14th Amendment denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
6. When the court in Griswold turns back to Myer and Pierce and distinguishes Lochner—they’re appropriating this substantive due process that once supported a conservative ideology and transforming it into a means to support a more liberal ideology.
7. SKINNER v. OLKLAHOMA (1942) (only case between Locnher and Griswold that exercised special scrutiny in favor of a “fundamental liberty” not tied to a specific constitutional guarantee)—the decision invalidated OK’s Act that provided for compulsory sterilization after a third conviction for a felony involving “moral turpitude” but excluding such felonies as embezzlement. “Marriage and procreation are fundamental to the very existence and survival of the race”—therefore this law deprives them of basic liberty. This sterilization law is unmistakable discrimination.
8. In Skinner, the court used an equal protection clause to avoid the appearance of engaging in substantive due process. In a sense, the Court never stopped applying substantive due process in the personal rights sphere, from the time of Myer through Skinner to the present. Only the location of the authority for this judicial power has changed over time.
B. Contraception / Griswold v. Connecticut 1965, Justice Douglass
1. ISSUE:
a. Whether there is a right to privacy?
b. Whether the CT law preventing the use of contraceptives violates this right.
2. HOLDING:
a. The right to privacy is a fundamental right. It does not stem from the due process clause of the 14th Amendment. Instead, many specific provisions of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
b. The CT law violates the right to privacy. The government is invading a protected area of liberty (marital privacy). This is unconstitutional because it would permit state intrusion into the marital bedroom.
3. NOTES:
a. Douglas expressly rejected the argument that the right was protected under the 14th Amendment due process clause.
b. The “penumbra” approach has been criticized and has never been used again.
c. Justice Goldberg found the right to privacy in the 9th Amendment
d. Justice Harlan argued that the right was to be found in the Due Process Clause of the 14th Amendment. very conservative republican justice who is saying that you cannot be bound by simple text or original intent—the task of the court is much grander than that—it has to be more abstract
e. Justice White found that the CT statute didn’t even meet the rational basis test: a ban on contraceptives was justified by the state interest in preventing extra-marital affairs
f. Right to privacy: Not explicitly provided for in the Constitution.
g. When the court in Griswold turns back to myer and pierce and distinguishes lochner—they’re appropriating this substantive due process that once supported a conservative ideology and transforming it into a means to support a more liberal ideology.
h. Brandeis (Olmstead v. U.S.): “the right of privacy is the right to be left alone. The most comprehensive of rights and that valued by civilized men”
4. In EISENSTADT v. BAIRD (1972), the Court overturned a conviction under a law banning the distribution of contraceptives.
a. The Court avoided explicit decision of the questions whether the fundamental right recognized in Griswold extended beyond use to distribution and beyond married couple to unmarried persons.
b. Instead, it purported to decide the case as a violation of equal protection: Mass. law denied equal protection because it discriminated against non-married individuals
c. “If the right of privacy means anything it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether the bear a child.”
d. This case expands on Griswold in recognizing a right to control reproduction as a fundamental right.
e. Strict Scrutiny: govt. have to show that the means employed are well tailored to meet a compelling government interest. This is applied with “fundamental rights”
f. Eisenstadt—is important because you had to define the right broadly enough to both include the idea that it was a traditional right and the right to make decisions about their reproductive futures
g. And it’s important because it says that the right belongs to the individual—so it is the individual who finds himself/herself in the marital relationship who has the right—the right doesn’t derive from the marital relationship itself.
C. Roe v. Wade, 1973, Justice Blackmun
1. ISSUE: Whether a TX law prohibiting abortions violates the right to privacy.
2. HOLDING:
a. There is a right to privacy situated squarely within the due process clause and this right includes the decision whether or not to terminate a pregnancy.
b. The TX law violates this right because it forces a woman to continue a pregnancy against her will—imposing physical and psychological burdens.
c. Fetuses are not persons: the Constitution’s notion of a “person” did not include a fetus. There is disagreement about when life begins.
d. The right to an abortion is not absolute—it is a fundamental right—therefore it may only be regulated when there is a compelling state interest. Protecting material health after the first trimester is a compelling interest. (abortions after the first trimester are more dangerous than childbirth) With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. (because the fetus is presumably capable of meaningful life outside the womb)
e. The Court says that this is ok for the state to want to protect this life and that the state has an interest for protecting the health of the mother.
f. So, the court in Roe has to reconcile (1) the government’s justifications with protecting life with (2) the woman’s fundamental right to reproductive freedom.
g. Trimesters:
(1) First trimester—state government’s compelling interest isn’t strong enough—so they cannot be prohibited—but, of course, may be regulated as other medical procedures
(2) Second trimester—the government could not outlaw abortions, but the government “may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”
(3) Third Trimester: the government may prohibit abortions except if necessary to preserve the life or health of the mother.
3. NOTES:
a. Blackmun’s methodological approach could be criticized in that he used a non-textualist approach to find that the right of privacy extended to the right of reproductive choice. Yet he used a primarily textualist approach to find that the fetus did not enjoy the protection of the 14th Amendment, since it was not contemplated by the provision nor did he find an tradition or history to support this interpretation. This method of constitutional interpretation is questionable
b. Viability: There is an inherent problem in resting a constitutional principle on a scientific fact in that the fact might change as our knowledge and social circumstances change. But it is not reliance on science that is the problem; the problem lies in failing to articulate a constitutional principle that would explain why the science is relevant in the first place. If viability had constitutional import (say because we knew the soul entered the body at that moment), then attaching the right to science would be perfectly appropriate. Here, viability was merely a proxy for other things—perhaps just a good compromise point.
c. Political Legitimacy: The court has to be concerned about its political legitimacy If the court had simply said that we’re having to look at when a woman’s right is exercised versus the government’s right to protect the life of the fetus and arbitrarily picked a time (like 20 week) they would have suffered even more criticism. But under constitutional law it’s ok to pick an arbitrary point based on principles. It’s based on a fundamental right of a woman to control her body on one had and the government’s sincere desire to protect the life of the fetus.
d. How does Roe (censor of social legislation) differ from Lochner (censor of economic regulation). The government has always had a place in controlling economics and we, as a society are prepared to accept this. Socially, we’re less comfortable with the government interfering in our lives—so In the economic realm, we can, to some extent, trust legislatures to take into account everyone’s view
D. Abortion Regulation from Roe to Casey
1. MISSOURI v. DANFORTH (1976): The Court struck down a requirement of spousal consent. Missouri required a husband’s written consent for an abortion during the first 12 weeks of pregnancy. “The State could not delegate authority (even to the spouse) to prevent abortion during the first trimester since the woman is more directly and immediately affected by the pregnancy.”
a. NOTE: The Court has consistently held that the father cannot have veto power over the right of choice. Although the man might have an interest in the “potential life” of the fetus, under virtually any sort of balancing it must bow to the woman’s fundamental right.
2. BELLOTTI v. BAIRD (Bellotti II) (1979: Justice Powell’s plurality opinion announced that a state could involve a parent in a minor’s abortion decision only if it also provided an alternative judicial bypass procedure so that the parental involvement would not amount to an “absolute and possibly arbitrary veto.” Bypass—if minor could demonstrate her maturity and make the decision on her own.
3. H.L. v. MATHESON (1981): A law requiring parental notice (rather than consent) was upheld.
4. HODGSON v. MN (1990): A divided Court struck down a requirement that both parents of any minor be notified 48-hrs before an abortion was performed on a minor, but found such a notification requirement permissible provided that a proper judicial bypass procedure was available. This case demonstrates black letter: consent and notification provisions that are imposed on minors are constitutional if they are accompanied by a bypass procedure so that if, for whatever reason, a minor’s telling her parents would be particularly objectionable (incest, child abuse)—there has to be some other avenue for a child to exercise her right.
a. With regard to parental consent/notice—the Court attempted to strike a balance in Danforth, Bellotti II and Matheson by permitting statutes to stand as long as they provided an avenue for those minors who are emancipated or who might suffer dire consequences by seeing