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FUNdamental Rights Review Session

Review Session #2
by

Dave Rossi

on 26 April 2011

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Transcript of FUNdamental Rights Review Session

FUNdamental Rights Review David Rossi
rossi.da@husky.neu.edu Office Hours (in The Commons)
Tuesday, 2-3pm
Wednesday, 12-1:30pm
Thursday, 3:15-4:15pm FUNDAMENTAL RIGHTS
ANALYSIS (#1)
Is the
Issue Related to Abortion? (#2)
Is it a Fundamental Right? (#3)
Is the Right Infringed? OVERVIEW
OF
FUNDAMENTAL RIGHTS In General Where Are Fundamental Rights Protected? Cases Some liberties are so important that they are deemed "FUNdamental" and the government can not infringe them unless a heightened level of scrutiny is met. Almost all Fundamental Rights have been protected by the Supreme Court under:
The due process clauses of the 5th and 14th Amendment
The equal protection clause of the 14th Amendment Rights safeguarded under Due Process framed as:
Is the government's interference justified by a sufficient purpose? Rights safeguarded under Equal Protection framed as:
Is the government's discrimination as to who can exercise the right justified by a sufficient purpose? The Slaughter House Cases (1873)
The privileges and immunities clause does not protect a fundamental right to work. It only protects a limited set of national privileges, like the right of access to federal agencies and the right to use navigable waters. Palko v. Connecticut (1937)
Some guarantees of the Bill of Rights are fundamental and "of the very essence of a scheme of ordered liberty." Double jeopardy appeal is not a fundamental right. Adamson v. California (1947)
14th Amendement due process clause does not extend to defendants a 5th Amendment right not to bear witness against themselves in court. Roe v Wade (1973)
Right to Abortion falls within the fundamental right to privacy Planned Parenthood v. Casey (1992)
A regulation is an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. What is an undue burden? Stenberg v. Carhart (2000)
Undue burden because vague wording of the statute went beyond D&X to D&E Gonzalez v. Carhart (2007)
No undue burden when other safe alternatives exist The "Undue Burden" Test How Do You Determine if Something
is a Fundamental Right? Penumbras of other enumerated rights
Griswold v. Connecticut (1965) History and Tradition National Values Constitutional Text Importance to the Person Natural Law Pre-Constitutional
Rights 9th Amendment Common Law "Rights of the very essence of a scheme
of ordered liberty"
Palko v. Connecticut (1937) Fundamental Right to Procreation Skinner v. Okalahoma (1942)
There is a fundamental right to procreate
Overruled Buck v. Bell (1927) Fundamental Economic Rights? Lochner v. New York (1905)
14th Amendment protects the fundamental right to contract. West Coast Hotel v. Parrish (1937)
"The Constitution does not speak of freedom of contract..." Williams v. Lee Optical (1955)
"The day is gone where this court uses the Due Process Clause to strike down laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. Voting "Guarantee Clause," Article IV, §4 "The United States Shall Guarantee to every State in this Union a Republican Form of Government." Other Amendments
15th
19th
24th
26th The Constitution Case Law Reynolds v. Sims (1964)
The right to vote is fundamental and cannot be denied by the dilution of the weight of a citizens vote. Bush v. Gore (2000)
In the circumstances of this case, any manual recount of votes seeking to meet the deadline would be unconstitutional. Crawford v. Marion County Election Bd. (2008)
Requiring a government-issued photo ID is justified by the state's interest in preventing voter fraud and instilling confidence in the electoral process. Education San Antonio Independent School District v. Rodriguez (1973)
Education is not a fundamental right Plyer v. Doe (1982)
Statute violated the Equal Protection Clause because it was not rationally related to a substantial state goal. Here there was no legitimate state interest. Edgewood Independent School District v. Kirby (Tx. 1989)
Under TX Constitution, education is a fundamental right.
States can expand, not diminish constitutional rights. Right to Travel Shapiro v. Thompson (1969)
There is a fundamental right to travel. Saenz v. Roe (1999)
Right to travel is protected by a person's status as a citizen of the US under the 14th Amendment.
Privileges or Immunities Clause of the 14th Amendment protects the right to travel. Privacy Griswold v. Connecticut (1965)
The right to privacy is a fundamental right Consensual
Sexual Activity Zablocki v. Redhail (1978)
Marriage is a fundamental right. Bowers v. Hardwick (1986)
There is no fundamental right for homosexuals to commit sodomy. Lawrence v. Texas (2003)
Liberty presumes a certain autonomy of self that includes freedom of thought, expression, and certain intimate conduct. Requires a "direct and substantial interference" Zablocki v. Redhail If YES then Strict Scrutiny Narrowly tailored (means) to
a compelling governmental interest (ends) Almost all fundamental rights are protected by the Supreme Court under:
Due Process Clauses of the 5th and 14th Amendments
Equal Protection Clause of the 14th Amendment Due Process:
Is the government's interference justified by a sufficient purpose? Equal Protection:
Is the government's discrimination as to who can exercise the right justified by a sufficient purpose?
Full transcript