Doctrinal Tests & Rules

Question 1

Judicial Review

Answer 1

Courts have the power to review nondiscretionary conduct where there is a specifically identifiable legal command

Question 2

Methods of Constitutional Interpretation

(9)

Answer 2

1. Originalism
2. Non-Originalism
3. Textualism
4. Process Theory
5. Precedentalism
6. Structuralism
7. Pragmatism / Consequentialism
8. Puke Test
9. Objection to Intrepretation

Question 3

Originalism

Answer 3

Proper meaning is the meaning originally intended by the Framers (Historical Approach)

Question 4

Non-Orginalism

Answer 4

Courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document

Question 5

Textualism

Answer 5

Normal meaning of the text to the people of the founding generation is the meaning, analyze the words the founders selected for the drafting process, not the intent of what they were trying to achieve

Question 6

Process Theory

Answer 6

Interpret in consideration of the political / legal processes it defines / establishes or protects

Question 7

Precedentialism

Answer 7

Interpretation by referring to preceding case law

Question 8

Structuralism

Answer 8

Interpretation by reference to the structural scheme of the Constitution and repeated uses of phrases & the meaning in the different contexts

Question 9

Pragmatism / Consequentialism

Answer 9

Constitution was intended to give the flexibility we need over time (Evolution by interpretation)

Question 10

Principle of Avoidance

Answer 10

To ensure constitutional questions will only be reached if necessary

1. Court will not anticipate constitutional questions
2. Court will not formulate constitutional law broader than the necessity of deciding it
3. Court will not question the constitutionality of a statute without an injury that has occurred
4. Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of the benefits
5. Court will construe acts of congress as constitutional if possible before invalidation

Question 11

Justiciability Doctrines

Answer 11

1. Prohibition of Advisory Opinions
2. Ripeness
3. Mootness
4. Political Question
5. Standing

Question 12

Prohibition of Advisory Opinions

Answer 12

Case or controversies that do not include a posture, where the court would simply be giving their opinion

In order for the federal courts to hear the case:

(1) Actual dispute between adverse litigants must exist,
(2) Where a Federal court decision will bring about some impact in the real world

Question 13

Ripeness

Answer 13

2 Prong Test - In order for the federal court to hear the case the court will consider the following criteria: (You can persuasively argue for a sliding scale)

1. Hardship to the parties by withholding consideration (Degree & Likelihood)
2. Fitness of the issues for judicial consideration
   
   • Purely legal issue, suggests ripeness and is more likely to be considered
   • All parties agreeing to what the issue is, more likely to be considered
   • Sufficient record to make a decision from

Question 14

Mootness

Answer 14

A plaintiff must present a live controversy at all stages of federal court litigation. If anything occurs while the lawsuit is pending to end the plaintiff’s injury, the case is dismissed as moot.

Exceptions:

1. Wrongs capable of repitition but evading review
2. Voluntary Cessation
3. Collateral Injury
4. Class Actions

Question 15

Political Questions

(6 Factors)

Answer 15

There is a group of cases the court will not adjudicate, that are left to the political process

Baker v. Carr Factors:

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department
2. A lack of judicially discoverable and manageable standards for resolving the question
3. The impossibility of deciding the question without making an initial policy determination of a kind clearly inappropriate for judges to make
4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due to coordinate branches of the government
5. An unusual need for questioning adherence to a political decision already made
6. The potential embarrassment from multifarious pronouncements by various departments on one question

 

Question 16

Standing

Answer 16

Does a particular person have enough at stake in the controversy to present and create, sharp and adversarial presentation, of particular issues to the court?

Constitutional Requirements – Standing requires a personal injury fairly traceable to the defendant’s conduct that is likely redressable from a federal court decision

1. Injury – Cannot be abstract, hypothetical, or too speculative
   
   • Concrete
   • Personally experienced or likely enough to be personally experienced
   • Does not have to be exclusive, Others experiencing the same injury does not preclude relief
2. Causation / Traceability – Injury suffered must stem from the defendant’s wrongful (illegal) conduct (Fairly Traceable)
3. Redressability – The court must be able to provide relief for the actual injury, but does not have to be complete relief (Likely Redressable)

Plaintiff must show injury, causation and redressability at the level of relief they seek (City of Los Angeles v. Lyons)

Question 17

Sources of Congressional Power

(3 Main - 2 Others)

Answer 17

1. Necessary and Proper Clause
2. Commerce Clause
3. Taxing and Spending Clause

Others:

1. War Powers Clause
2. § 5 of the 14th Amendment

Question 18

Necessary and Proper Clause

(Remember 1 Important Case)

Answer 18

Article I, §8, Clause 18: Congress has the power to choose the appropriate means to accomplish its enumerated powers.

Nothing in the constitution prohibits implied or incidental powers if the end be legitimate and within the scope of the enumerated powers (Confers congressional discretion)

Test: Legitimate Ends & Means

1. Plainly adapted to
2. Not prohibited
3. Consistent with letter spirit of the Constitution

McCulloch v. Maryland: Necessary & Proper Clause authorizes Congress powers incidental to enumerated powers, therefore the power to create a bank is incidental to the enumerated power of coining money

Determining an implied power:

• Drafter’s Intent
• Plain Language
• Structural (Placement among the powers of Congress, not among the limitations on those powers)

Question 19

Commerce Clause Power

(3 Channels, Limits)

Answer 19

Regulation of Three Categories:

1. Channels of Interstate Commerce
2. Instrumentalities of Interstate Commerce
3. Activities Effecting Interstate Commerce

Limits:

1. Economic Activity vs. Noneconomic Activity (i.e., Lopez)
2. Substantial Effect (Not just an effect, but can be achieved through aggregation)
3. 10th Amendment - Anit-Commandeering
4. Cannot regulate inactivity (NFIB - Plurality)

Question 20

Aggregation Principle

Answer 20

From Wickard v. Filburn

Court allows the aggregation of all factors of the same economic activity to determine if there is a substantial effect on interstate commerce (Class of activity is defined by congress in the statute, i.e., Gonzales and homegrown marijuana as compared to Lopez and violence in schools which isn’t economic)

Congress needs a rational basis for concluding there is a substanial effect in the aggregate

Congress can only aggregate economic activity

Question 21

Anti-Commandeering

(3 Cumulative Elements)

Answer 21

10th Amendment Jurisprudence

Test to block enforcement of Federal Statutes properly created within the Commerce Clause power containing an affirmative requirement with the following characteristics:

1. Is the statute are targeted at state legislatures and state executive officials rather than being generally applicable? (i.e., Targets states as states)
2. Does the statute in question impose coercive duties upon state officials? (i.e., Is there an option to opt out?)
3. Does the statute impose affirmative duties or just negative duties?

Question 22

Taxing and Spending Power

(2 Tests)

Answer 22

Dole Test:

Taxing & Spending Power is Subject to 5 Limitations: (Deference to Congress)

1. Must be in pursuit of the general welfare
2. Must state conditions clearly and explicitly (unambiguous)
3. Must be related to federal interests in programs / projects– Germaneness Requirement
4. Must be no other constitutional bar
5. Must comply with the 10th amendment’s anti-commandeering principle

NFIB Test:

Plurality’s Three Step “spending” Power Analysis:

Step 1: Are the conditions being challenged concerning conditioning the use of funds or are the conditions part of a separate independent program?

Step 2: If for separate program – Did the states have adequate notice at the time they first agreed to independent condition?

Step 3: If no notice then – Is the condition unduly coercive?

• What percentage of the states budget does the state stand to lose if they don’t agree to it?
• How much federal funding does the state stand to lose? (Anything over 10% has been considered unduly coercive)

 

Question 23

War and Treaty Power

(2 Issues)

Answer 23

Separation of Powers issues of congress giving their duties to the executive branch

Need political accountability

Question 24

14th Amendment, § 5

(Test for Legislation & Limits)

Answer 24

1. Limited to regulating State Action
2. Narrow View: Congress can only prevent and provide remedies under the 14th amendment for rights recognized by the Supreme Court.
3. Test: Is there congruence and proportionality between legislation and the judicially defined constitutional problem at issue?

Question 25

Two Methods of Invalidating State Law

(Limits on Regulating Commerce)

Answer 25

Preemption: Congress has acted and Congress’s legislation preempts the State’s conflicting law through the Supremacy Clause (Art. 6, § 2)

Challenge: Under the Dormant Commerce Clause or Privileges & Immunities Clause

Question 26

Preemption

(Test, 3 Factors, Four Categories and Test for Each)

Answer 26

Test: Did congress intend to preempt state law?

Factors:

1. Statutory scheme’s purpose
2. Statutory scheme’s history
3. Congressional intent

Categories:

1. Field Preemption
   
   • Test: Subject Matter Inquiry - Is the legislation so detailed of a regulatory scheme that it seems clear Congress manifested intent to be providing the entire array of laws within a particular field?
2. Conflict Preemption
   
   • Test: Is dual compliance possible? (Courts will construe the statutes if possible)
3. Obstacle Preemption
   
   • Test: Does the state regulation impose an undue burden on the Federal legislation’s objective?

Question 27

Dormant Commerce Clause

(Goal, Test, Exceptions)

Answer 27

Goal - Preventing undue burdens on interstate commerce without a benefit in safety

Threshold Question: Does the law discriminate or regulate evenhandedly?

• Facial Discrimination
  
  • Laws that favor instate business or requiring use of in-state businesses
  • Laws that preserve instate resources for instate use
  • Laws that limit access to local markets by out-of-staters
• Facially Neutral Law, Look for:
  
  • Discriminatory Purpose, Or
  • Discriminatory Effect

Apply the appropriate level of scrutiny:

Facial Discrimination, Discriminatory Purpose, or Discriminatory Effect:

• Hightened Scrutiny -
  
  • Does the state have legitimate non-protectionist local purpose for the regulation?
  • Local purpose could not be served by an alternative less-restrictive non-discriminatory means

Non-Discriminatory Laws

• Rational Basis Balancing Test (To ensure no undue burdens are placed on interstate commerce)
  
  • Legitimate local purpose
  • Interest Balancing Test: Local purpose is served rationally related to the means used such that the burdens on interstate commerce are not clearly excessive in relation to the putative local benefits

Exceptions - Trigger Rational Basis Balancing Test

1. Market Participant: A state may favor its own citizens in receiving benefits from government programs or in dealing with state-owned government businesses
   
   • Issue: Defining the actual market and what that encompasses
   • Sough What You Reap Rational (Reeves, Inc.): Allowing in-state citizens to have preferential access for the taxes they pay, is a constitutional preference
2. Congressional Approval: Notion of the power to regulate interstate commerce lies with congress, therefore congress may pass this power to the states, by acting and approving the states to exercise a certain regulatory control over interstate commerce.
   
   • Issue: Identifying the scope of Congressional authorization (Must be within enumerated powers and comply with the state-action requirement if applicable)

Question 28

Privileges & Immunities Clause

(Goal, Areas of Coverage, Analysis - 3 Steps)

Answer 28

Goal – Interstate Equality (Harmonizing the several states into a single national entity)

• For a Nation composed of individual states are some distinctions are permitted when they do not hinder the formation, the purpose, or the development of a single Union of those states (i.e., Baldwin - hunting is not a P&I)

Who is protected? – Citizens are only U.S. Citizens (Not Aliens)

Areas of Application (“Contours of the Clause are not well-developed”)

• When constitutional rights are at stake
• When important economic issues are at stake

Analysis:
Step 1: Has the state discriminated against out-of-staters with regard to Privileges and Immunities it accords to its own citizens?

• i.e., Pursuit of Livelihood, Pursuit of a Common Calling, and other Constitutional Rights & Benefits that the Court Protects for the purpose national uniformity

Step 2: If Yes, Is there a substantial justification for the discrimination?

Step 3: Is there a substantial relationship between the means employed (state citizenship) and the reason for the law?

• Do less restrictive means exist?

Question 29

PRIVILEGES & IMMUNITIES CLAUSE VS. DORMANT COMMERCE CLAUSE

Answer 29

Facially Non-Discriminatory Laws

Privileges & Immunities Clause: There must be facial discrimination (DCC permits challengeds based on impact or purpose)

• Supreme court has never held if a discriminatory impact is sufficient, whereas Dormant Commerce Clause applies to facially neutral and evenhandedly applied regulations where the burden on interstate commerce is too great
• Make competing arguments either way concerning facially nondiscriminatory laws

Area of Application

Commercial: Both Dormant Commerce Clause and Privileges & Immunities Clause Apply

• Privileges & Immunities Clause – Citizens only (No Business Entities), if related to economic privilege and there must be facial discrimination
• Dormant Commerce Clause – Citizens, Corporations, Aliens, etc. if related to interstate commerce, discriminatory impact is sufficient

Non-Commercial: Only Privileges & Immunities Clause applies when constitutional rights are at stake

Exceptions

Privileges & Immunities Clause: No Exceptions
Dormant Commerce Clause: (1) Congressional Approval & (2) Market Participant Exception

Level of Scrutiny

Dormant Commerce Clause: Rational Basis Review & Strict Scrutiny depending on whether the law is discriminatory

Privileges & Immunities Clause: Substantial Reason & Substantial Relationship

• Can make a persuasive argument against if there is a different test for nondiscriminatory laws

Question 30

Test for Presidential Authority

Answer 30

Step 1: Is there congressional authorization? (Is the authorization constitutional?)

• Black’s Majority Opinion: Authorization must be express
• Jackson’s Concurring Opinion: Authorization may be express or implied

Step 2: Apply the test corresponding to the appropriate Jacksonian Zone for the presidential authorization at issue?

• In determining whether the executive has authority, there are three general circumstances:
  
  • When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
    
    • Task for the court is to determine whether the action is within the scope of the authorization and if the authorization is constitutional
      
      • Strong presumption of validity
      • Presidential Power is at its strongest
  • When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority.
    o When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
    
    • Zone of Twilight (Concurrent Authority): Case-by-case assessment is necessary (Diverging point between Majority & Concurrence)
  • When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest and subject to judicial review.
    
    • Only if the following are true, is the authorization valid if the there is
      
      • (1) presidential constitutional authority in the area and
      • (2) congress must not have constitutional authority

Step 3: Rationalize the differences between the different approaches and results to justify one approach over the other

• i.e., Jackson’s approach allows the court to rationalize the presidential action

Question 31

Expansion of Executive Authority Beyond Article II

(Issue)

Answer 31

Separation of Powers Issue

1. Line Item Veto Act
2. Signing Statements

Question 32

Appointment and Removal Power

(Appointment Power & Limits - 1 Test, and Removal Power & Limits - 2 Tests)

Answer 32

Appointment Power – Art. II, §2, Clause 2:

The Constitution empowers the President to appoint federal officers with the Senate’s advice and consent.

Limits:

Congress can create offices and define their qualifications it cannot appoint persons to hold offices of the United States.

Congress can vest the appointment of “inferior officers” in the President, the courts of law or heads of department, other branches of government, but cannot vest the power in themselves.

• Test for Inferior Officers: Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior, or the nature of his/her duties, jurisdiction and tenure. (Morrison v. Olson)

Removal Power:

The Constitution does not explicitly grant the President power to remove executive officers but the power is inherent in executive power, at least with respect to certain officers. (Myers v. United States)

The President has unfettered, exclusive power to remove his appointees without approval from the legislature.

• This includes both high-ranking officials who act as his “alter ego” and executive officers engaged in other normal duties.

Limits:

Absolute power unless Congress has limited the power (Congress cannot give itself the power)

• Congress may limit removal power for offices where:
  
  • Independence from the presidential whim and political partisanship is desired
    
    • Test: To what extent do we want the president controlling officers? (i.e., Tenure of Years and Quasi-Judicial / Quasi-Legislative Agencies exist precisely to maintain either an a-political or politically balanced delivery of services)
  • The legislation creating the office only limits removal to instances where good cause shown, but does not prohibit removal
• Test:

1. Does the statutory language in fact limit the president’s removal only to listed reasons?
2. If so, are those limitations constitutional?

Question 33

Foreign Policy, Treaties & Wars

(Issues, Test for Security vs. Liberty)

Answer 33

Treaties and Executive Agreements

Issue: No ratification is required for executive agreements and therefore there is a lack of political accountability and a separation of powers issue

War Powers

Issue: When can the president command troops without congressional approval? Separation of Powers and Political Accountability Issues

What is the right balance between security and liberty?

Matthews v. Eldridge Balancing Test to evaluate the government’s infringement of a constitutional right:

Factors:

1. Private Interest At Stake
2. Government Interest At Stake
3. Risk of Erroneous Deprivation of the Private Interest
4. The Probable Value of Additional Procedural Safeguards

Question 34

Incorporation of the Bill of Rights

(Test for Incorporation)

Answer 34

Test:

Is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?

Other Tests:

Whether it is basic right in our system of jurisprudence?

Whether it is a fundamental right that is essential to a fair trial?

Question 35

State Action Doctrine

(Definition of the Doctrine, 3 Exceptions - Tests and Issues with the Exceptions)

Answer 35

In order for constitutional principles to apply or for an individual to invoke the constitutional protections, there must be state action

13th Amendment – Private entities cannot own slaves

Public Function Exception – When a private entity is performing a public function, the court may find the state action requirement satisfied

• Test: Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself
  
  • To satisfy state action, it has to be the sort of function that is traditionally exclusively reserved to the state

Entanglement Exception – When the government affirmatively authorizes, encourages, or facilitates private conduct the court may find the state action requirement satisfied

• Issue: What degree and type of government involvement is sufficient?
  
  • i.e., Shelly - But courts have limited judicial enforcement as state action to areas involving racial discrimination

Question 36

Equal Protection

(Three Step Analysis, Suspect Class 4 Factors, Levels of Scrutiny - Areas of Use, Characteristics, Burden of Proof)

Answer 36

Equal Protection Clause –14th Amendment, § 1: “Nor shall any State… deny to any person within its jurisdiction the equal protection of the laws.”

Three Step Analysis:

Step 1: What is the classification being challenged? (If not yet deemed suspect, apply the Cleburne Factors)
Step 2: What is the appropriate level of scrutiny?
Step 3: Does the government action meet the level of scrutiny?

Suspect Class Factors:

1. History of discrimination
2. Political Powerlessness
3. Immutability
4. Irrelevance of the characteristic to functioning in society

Levels of Scrutiny:

Rational Basis Review: Whether the governmental action is rationally related to a legitimate purpose

Area of Use:

• Default level of scrutiny for non-suspect classifications and nondiscriminatory laws (Unless national origin, gender, alienage, or legitimacy)
• Alienage Classification Exceptions:
  
  • Classifications related to self-government & the democratic process
    
    • Test: Does the position involve discretionary decision-making or execution of policy that reflects public policy or an execution of policy in a way that impacts members of the community?
  • Congressionally approved discrimination

Characteristics:

• Deference to the legislature with presumption in favor of upholding the law
• Tolerance for over & under inclusiveness

Burden: On the challenger to establish that there is no conceivable basis for the legislation

Strict Scrutiny Review: Whether the government action serves a compelling state interest, and the use of the classification is necessary / narrowly tailored to achieve that compelling state interest

Areas of Use:

• For suspect classes
• For government actions with a discriminatory impact and discriminatory purpose (See Washington v. Davis)

Characteristics:

• Societal notions are insufficient for a compelling interest (Need specific evidence)
• Must be no other alternatives (i.e., necessary) such the means are precisely calibrated to achieve the compelling interest
• Over & under inclusiveness is almost always fatal

Burden: On the government

Intermediate Scrutiny Review: Whether the government action serves an important government objective and that the means employed are substantially related to those objectives

Area of Use: For quasi-suspect classes (i.e., Gender, Illegitimacy & Content-Neutral Free Speech)

Characteristics: Overbroad generalizations are insufficient for important government objectives

Burden: On the government

Question 37

Establishing a Racial Classification for Equal Protection Purposes

Answer 37

Establishing a Racial Classification: NEED DISCRIMINATORY PURPOSE

Discriminatory Impact – Mere evidentiary value to establish a purpose and absent a “stark” pattern, impact is not determinative (Sometimes a pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face, i.e., Yick Wo)

• When applying scrutiny the operative effect as more important than purpose

Discriminatory Purpose – Implies more than intent as a violation or intent awareness of consequences, such that purpose must be in part “because of” not just “in spite of”

Factors To Establish Discriminatory Purpose Circumstantially:

(1) Historical Background and Context,
(2) Procedural Irregularity,
(3) Substantive Inconsistency, and
(4) Legislative History
* If the factors are satisfied the burden shifts, the government must prove the law would have been enacted despite the improper consideration of the discriminatory purpose or purpose is met and strict scrutiny applies. (Government has lost at this point by showing the impermissible purpose was the motivating factor)

Question 38

Alienage Classification Exceptions

(2)

Answer 38

1. Classifications related to self-government & the democratic process
   
   • Test: Does the position involve discretionary decision-making or execution of policy that reflects public policy or an execution of policy in a way that impacts members of the community?
2. Congressionally approved discrimination

Question 39

Romer Rational Basis Review

Answer 39

Romer Rational Basis Review: Seems a little more strict type of rational basis review suggesting there are some instances where the court may use a heightened standard

Breadth Rational: So broad such that no purpose could extend to all of the applicable contexts

Question 40

Benign Racial Classifications

(Arguments For or Against Strict Scruntiny)

Answer 40

Arguments For:

• Racial classifications are suspect, that means simple legislative assurance of good intention cannot suffice
• Race conscious government action is inherently suspect & has lasting effects
• Discrete & Insular Minority (U.S. v. Carolene Products Company, Footnote 4)

Arguments Against:

• Political Process Argument: The dominate racial group is burdening themselves to help a historically disadvantage minority through its own devices & before the court gets involved

Question 41

Fundamental Rights

(2 Definitions, Origins, 3 Step Analysis)

Answer 41

Procedural Due Process: The principle that the government must respect all of the legal rights those are owed to an individual according to the law and must follow procedural requirements before depriving an individual of life, liberty, or property.

Substantive Due Process: The concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government cannot abridge those rights unless there is a compelling justification. (i.e., infringement of fundamental rights is subject to strict scrutiny)

• The traditions and collective conscience of our people so rooted there… as to be ranked as fundamental.
• Constitutionally supported by the broad reading of “Liberty” to include substantive elements

Origins:

Lochner Era: Emphasis on the fundamental right of the “Freedom to Contract” and economic liberties such that the government could not interfere with these rights through valid exercises of the police power

Post-Lochner Era – “Switch In Time That Saved Nine”: The “Freedom to Contract” when illuminated by the realities of the Great Depression is no longer seen as important in order to protect the working class.

• New era of deference to the legislature’s judgment and that the proper role of the courts is decide whether the legislative decision was arbitrary or capricious.

Three Step Analysis:

Step 1: Identify whether a fundamental right is in question

• Test for Announced Rights:

1. What has been deemed as a fundamental right & how much is encompassed in that decision?
2. How does that right compare to the right asserted in present situation?

• Test for Unannounced Rights: (Some justices require both test, some require satisfaction of one test)

1. Is the right comprised of ‘the traditions and collective conscience of our people’” such that it is “‘so rooted there … as to be ranked as fundamental”? (Griswold, Meyer, Moore)
2. Is the right essential to the orderly pursuit of happiness by free men? (Loving)

Step 2: Is the fundamental right being infringed in a direct and substantial way?

• “Trivial and logistical” infringement does not trigger strict scrutiny

Step 3: Apply the appropriate level of scrutiny

Rational Basis Review: Whether the governmental action is rationally related to a legitimate purpose

• Protection from Arbitrary & Capricious Interference: (1) Infringement of Non-Fundamental Rights or (2) Trivial & Logistical Infringement of a Fundamental Right (i.e., Economic Regulation)

Strict Scrutiny: Whether the government action serves a compelling state interest, and the use of the classification is narrowly tailored to achieve that compelling state interest

• Direct & Substantial Infringement of Fundamental Rights (i.e., Privacy, Reproductive Autonomy, Family)

Question 42

Right to Privacy

(Encompasses 2 Major Categories of Privacy)

Answer 42

Right to Privacy: The 1st Amendment Right of Association, the 4th Amendment protection against unreasonable searches, the 5th Amendment protection against self-incrimination, and the 9th Amendment combine to create a “zone of privacy” impenetrable by government. (See Griswold)

Right to Reproductive Autonomy

Right to Reproduce: Procreation is a fundamental right & sterilization infringes (See Skinner)

Right to Choose Whether To Bear a Child: This right to privacy is similar to a right to make decisions pertaining one’s own definition of human existence including family and the physical and emotional consequences of pregnancy

Right to Purchase & Use Contraceptives (See Griswold)

Right to Terminate a Pregnancy (See Roe & Casey)

• Not an Absolute Right: Can be subject to regulation before the point of viability for the purpose of furthering a thoughtful and informed decision as long as there is not an outright prohibition. After the point of viability the state has a compelling interest in protecting the life of the unborn and can prohibit abortions unless it is necessary to protect the health of the mother
• Test: Undue Burden (Prior to viability)
  
  • Does the state regulation impose an undue burden (i.e., substantial obstacle in purpose or effect) on the woman’s decision to terminate a pregnancy?
• Test for Viability – Functional Assessment: Can the fetus live outside the womb?

Right to Marriage and Family Decision-Making

Right of the Parent to Decide Child’s Education (See Meyer and Pierce)

Right of the Family to Stay Together (See Moore: Issue of how the family is defined)

Right to Marry Whomever You Want (See Loving: Issue of marriage including the same sex)

Right to Private Sexual Activity (See Lawrence)

Question 43

Right to Reproductive Autonomy

(4 Rights Covered, 2 Tests)

Answer 43

Right to Reproductive Autonomy

Right to Reproduce: Procreation is a fundamental right & sterilization infringes (See Skinner)

Right to Choose Whether To Bear a Child: This right to privacy is similar to a right to make decisions pertaining one’s own definition of human existence including family and the physical and emotional consequences of pregnancy

Right to Purchase & Use Contraceptives (See Griswold)

Right to Terminate a Pregnancy (See Roe & Casey)

• Not an Absolute Right: Can be subject to regulation before the point of viability for the purpose of furthering a thoughtful and informed decision as long as there is not an outright prohibition. After the point of viability the state has a compelling interest in protecting the life of the unborn and can prohibit abortions unless it is necessary to protect the health of the mother
  
  • Test: Undue Burden (Prior to viability)
    
    • Does the state regulation impose an undue burden (i.e., substantial obstacle in purpose or effect) on the woman’s decision to terminate a pregnancy?
  • Test for Viability – Functional Assessment: Can the fetus live outside the womb?

Question 44

Right to Marriage and Family Decision-Making

(Covers 4 Categories of Rights)

Answer 44

1. Right of the Parent to Decide Child’s Education (See Meyer and Pierce)
2. Right of the Family to Stay Together (See Moore: Issue of how the family is defined)
3. Right to Marry Whomever You Want (See Loving: Issue of marriage including the same sex)
4. Right to Private Sexual Activity (See Lawrence