Con Law - Fall 1998 - Shiffrin - ConLaw Fall 98...

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CONSTITUTIONAL LAW OUTLINE, FALL ’98 SHIFFRIN I. Direct Protection for the Rights of Individuals A. Introduction Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 1976 (pp. 809-17) Classic “track one” case - gov’t tried to suppress info based on the chance that the communicative impact of the message might cause harm. Point of this case: commercial speech is no longer an “unprotected category”. Court’s recognition of a 1 st Am right to receive info (not only to express, as in most prior cases) Court is not saying state of VA violated 1 st Amendment; it violated Due Process of Law Clause of 14 th Amendment (no state shall deprive any person of life, liberty, property without due process of law). Dissent: Rehnquist - 1 st Am was designed to protect discussion of “political, social and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo.” VA has a strong interest in combatting drug abuse, a danger to which unregulated advertising of prescription drugs and their prices might lead. paternalistic approach B. Economic Rights 1. The Heyday of Economic Rights and Judicial Activism “Lochnerism”: a) Calder v. Bull , 1798 ( p. 315-18) - opposing views on the nature and source of limits on government power 1. J. Chase says that ct should reverse state legislation which the Court finds violates rights which natural law had invested in people 2. J. Iredell says that only state or federal legislation contravening a specific constitutional guarantee or prohibition should be struck down and that it was not the Court's duty to enforce rights based on natural law; view held by Court until late 1870's Chase, J: “the obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded” (free republican government). Natural justice is absolute. Democracy means, in part, that people have rights that judges must protect. No state shall deny liberty unless it follows process. Due process clause is about process, not about substance of what legislature does. But, what liberties cannot a legislature invade? How do you go about determining those? Iredell, J: “ideals of natural justice are regulated by no fixed standard” Who are they to determine what natural rights are? Judges should not be able to impose their conclusions on legislatures—lack of democracy. b) Lochner v. New York , 1905 (pp. 326-29; Em 145) Facts: New York statute forbidding employment in a bakery for more than 60 hrs a week of 10 hrs a day. Issues: is it within the police power of the state to regulate labor hours for bakers? Holding:
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Con Law - Fall 1998 - Shiffrin - ConLaw Fall 98...

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