Lawrence and Judicial Activism Reconsiderd

Lawrence and Judicial Activism Reconsiderd - LAWRENCE VS...

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LAWRENCE VS. TEXAS & THOMAS SOWELL, “JUDICIAL ACTIVISM RECONSIDERED” Lawrence v. Texas Kennedy writing for court Question raised by this case: Is the Texas law criminalizing homosexual sodomy constitutional? “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places…Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the 14 th Amendment to the Constitution.” What is “liberty”? Right to be free from unwarranted government intrusion Role of courts in liberty-related cases: drawing (identifying) line between legitimate government power and illegitimate infringements of liberty Limiting what states can do creates and expands liberty. Fourteenth Amendment to Constitution (1868) “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws . Concepts of legal doctrine Precedent: court decision or body of decisions that a court adopts when deciding subsequent cases with similar issues or facts Stare decisis : standing by and thus reconfirming previous court decision(s) on an issue Landmark decision: when court establishes a new precedent either by reinterpreting law(s) in a new way or creating a ruling in an area that previously had not been subject of a court case. Fundamental rights: those which are “deeply rooted in this Nation’s history and tradition” Precedents in privacy and liberty Griswold v. Connecticut (1965): unconstitutional for a state law to bar sale of or counseling about contraceptives; violates privacy rights of married couples.
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