Constitutional Law, Strategic Shortline
A Is there a fundamental due process liberty right?
1. Economic v. social. (Why treat different, legislative expert., const. view Holmes Lochner dissent)
2. Substantive Due Process Rights protected
(Some of) first eight amendments
broadens: “free from intrusion into matters
so fundamental affecting decisions to bear/beget children”)
Strict Scrutiny, law cannot be “undue burden” (parental consent OK,
24-hour wait a “particular burden” to out of state women not “undue,” spousal notification not OK)
Family. childrearing? (Pierce
(private schools) and Meyer
(German teaching), Troxel
mid-level “fundamental right for care, custody and control of children… special
weight to parent’s determinations.”
Quillon v. Walcott
step-family included if in best interests,
concur: “full recognition to family unit in exist.”)
Marriage, Loving v. VA
, Zobloki v. Rehail
– laws need “sufficiently important state interests” but
if not “significantly interfere” no need for scrutiny.
Califano v. Jobst
(upholds SS benefit denial,
doesn’t interfere w/marriage right but Boddie v. CT
inv. state refusal of divorce w/out $60 fee).
Living with relatives, Moore v. East Cleveland
. “important to legitimate interest”
3. Not fundamental rights
Living with non-relatives (Belle Terre v. Boraas
Gay sex (Bowers v. Hardwick
Right to Die (Glucksberg
, but O’Connor concur: maybe right to refuse med. treatment, Cruzan
privacy (“no grievous threat to privacy” Whalen v. Roe
4. New fundamental right?
deeply-rooted in the nations traditions and a careful description (Glucksberg
Is it historically deeply rooted traditions?
laws on the books in 1868? current practice? common law, legal traditions?
Level of abstraction of “tradition” (Scalia, Michael H.
“most specific level of the relevant
tradition either denying or protecting”) and “careful description,” (Glucksberg
narrowly or broadly as justices see fit.
“homosexual sodomy” v. Glucksberg
“suicide right” not “terminate end of life.”)
(Casey argues against “most specific level,”)
Hesitation to discover rights that might “place the matter outside of the arena of public debate
and legislative action.”
Implicit with enumerated right, penumbras (not explicitly used since Griswald
Autonomy – “choices central to human dignity and autonomy” Casey
Alternative reasoning – reasoned judgment (Casey
), Souter weighing of interests (Glucksberg
importance in peoples lives (Marshall dissent Dandridge
importance, institutional concerns, political considerations (not enunciated)