2 nonoriginalism the view that it is permissible for

Info icon This preview shows pages 20–22. Sign up to view the full content.

2. Nonoriginalism: the view that it is permissible for the Court to protect fundamental rights that are not enumerated in the Constitution or intended by the drafters. 1. What kind of classification does the Government intend to be making? 2. Is it suspect, quasi-suspect, or non-suspect? 3. Apply the appropriate test: Suspect Classification Strict Scrutiny (Is it Necessary and Narrowly tailored to serve a compelling public interest?) Ex: race, ethnicity, religion, national origin Quasi-suspect Intermediate Scrutiny (must serve an important government objective and must be substantially related to achievement of those objectives). Ex: gender Non-suspect Rational Basis (must serve a legitimate public purpose and there must be a rational relationship between the statute and the legitimate public purpose.) Ex: Everything else Presumptions : Suspect & Quasi-Suspect presumption is that it’s unconstitutional. Burden is on G to prove otherwise. Non-suspect presumption is that it is constitutional and the burden is on P to prove otherwise. 20
Image of page 20

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

3. Sometimes the Court looks to history or tradition (“deeply rooted in this Nation’s history and tradition.”) c. Analysis: i. Is there a fundamental right? ii. Is the Constitutional right infringed? iii. Is there a sufficient justification for the Government’s Infringement of a Right? iv. Is the means sufficiently related to the purpose? d. Right to Procreate Fundamental Strict Scrutiny i. Skinner v. Oklahoma , 1942 1. Facts : Oklahoma was sterilizing inmates convicted of 3 or more qualifying felonies. Felons were subject to this punishment without any procedural process. Several issues are raised, the Court decided to take up the EP claim. 2. Issue : Is this unconstitutional? 3. Holding : Yes. a. The distinction between felonies which trigger the statute and those that don’t is discriminatory. b. Felonies that were almost identical in facts received different punishment under the statute. (Larceny v embezzlement). c. “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race…for oppressive treatment.” e. Right to Privacy Fundamental Strict Scrutiny i. Right to Control Reproduction ii. Griswold v. Connecticut , 1965 Right to Purchase & Use Contraception 1. Facts : Birth control was illegal. The director of Planned Parenthood and a CT doctor challenge the law, which also outlawed the aiding and abetting of the use/prescription of birth control. 2. Issue : Is this constitutional? 3. Holding : No. a. Court uses Due Process and creates the right to privacy. i. The Right to Privacy protects the marital relationship. BC is now legal for married couples.
Image of page 21
Image of page 22
This is the end of the preview. Sign up to access the rest of the document.
  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern