Rehnquist_Court_and_Privacy_Devolution - Copyright (c) 2003...

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Copyright (c) 2003 West Virginia Law Review West Virginia Law Review Spring, 2003 105 W. Va L. Rev. 621 LENGTH: 16666 words ARTICLE: THE REHNQUIST COURT AND THE DEVOLUTION OF THE RIGHT TO PRIVACY NAME: Scott P. Johnson* Robert M. Alexander** BIO: ** Assistant Professor of Political Science, Ohio Northern University. B.A., 1994, Ohio Northern University; M.A., 1997, Ph. D., 2000, University of Tennessee at Knoxville. SUMMARY: ... The right to privacy has evolved from its early roots in property rights and capitalism to its modern role grounded in individual freedom. . .. In Chief Justice Rehnquist's plurality opinion, he stated that the state's declaration that life begins at conception was not a regulation on the abortion procedure, but merely an expression of the value of life by the state. . .. In Mazurek, it was clear that the "undue burden" standard would make it easier for the conservative justices to uphold restrictions on the abortion procedure because if a restriction is deemed not to be an undue burden then it only must pass the rational basis test. . .. In upholding this less restrictive portion of the Minnesota law, the Rehnquist Court maintained its conservatism toward the freedom of a minor to seek an abortion. . .. Table 1 (see Appendix) illustrates the percentage of votes cast in the liberal and conservative direction by individual justices in privacy cases. . .. Table 1 reveals the conservatism of the Rehnquist Court with a distribution of 63% conservative and 36% liberal votes cast in privacy cases. . .. Liberal/Conservative Voting Record of U. S. Supreme Court Justices in Right to Privacy Cases, 1986-2000 Terms. . .. Liberal/Conservative Outcomes of Right to Privacy Cases for the Burger and Rehnquist Courts, 1969-2000. . .. TEXT: [*621] I. Introduction The right to privacy has evolved from its early roots in property rights and capitalism n1 to its modern role grounded in individual freedom. n2 The United [*622] States Supreme Court has recognized that the right to privacy exists in the context of marital privacy, n3 heterosexual relations, n4 and abortion rights. n5 However, it has not extended the right to privacy to such areas as homosexual behavior n6 or the right to die. n7 The right to privacy remains a controversial issue
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among a wide variety of legal scholars because it is not mentioned specifically in the United States Constitution. Hence, conservative scholars who practice a strict, or literal, reading of the Constitution have been troubled by the recognition of such implied rights. Because a growing movement has developed on the Supreme Court to temper, or eliminate, the right to privacy, it is necessary to explore whether conservative justices have been successful in their attempt to return to a strict interpretation of the Constitution. To determine whether the right to privacy has devolved, this article analyzes the history and
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Rehnquist_Court_and_Privacy_Devolution - Copyright (c) 2003...

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