Fundamental Rights

1. EP:

   1. RBR for any classification

   2. HS for certain suspect classes: race/ gender

2. SDP:

   1. Review if government infringes on some liberty

      1. Fundamental rights: HS

      2. Others: RBR

   2. No review if not infringed, so money in general is OK

14^th Amendment Privileges and Immunities Clause

1. Slaughterhouse and background

   1. 5A due process clause: limitation on FG

      1. Original bill of rights 1A-8A rights are applicable only to federal government, not to the states (Barron v. Baltimore)

      2. Specifically 5A takings clauses applies only to federal government.

   2. Art. IV § 2 Privileges and immunities: Limitation on the states

      1. Non-discrimination clause: States may not deny to OOS citizens P&I provided to their own citizens

   3. 14A

      1. citizenship clause: every person born/ naturalized in US is state and US citizen, overturns Dread Scott

      2. P-I: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.”

         1. P-I: Slaughterhouse, narrow reading: Rights against state government that individuals have in their special capacity as US citizens. Rights guaranteed in the first eight amendments are not applicable to the states via the P-I clause of 14A.

         2. Very narrow rights: right to travel (Saenz v. Roe), etc.

      3. DP

      4. EP

Modern SDP and Economic Liberties

1. Lochner

   1. 14A DP: procedural due process + substantive due process

   2. Lochner criticism

      1. no SDP

      2. no SDP beyond incorporation

      3. SDP beyond incorporation, but liberty does not include economic liberties

      4. Harlan dissent: SDP, liberty includes economic liberty, but liberty is not absolute, limitation of economic liberty is justified in Lochner.

         1. Worker health (paternalistic)

         2. Worker wage (redistributive)

      5. Holmes dissent: SDP, liberty includes economic liberty, but deference

   3. Incorporation

      1. 1A-8A applicable to FG

      2. 14A DP incorporates 1A, 2A (right to bear arms), 4A, most of 5A (except right to indictment), 6A, 8A excessive fines, making them applicable to States.

      3. Incorporation includes both procedural and substantive DP

      4. Approaches to incorporation:

         1. fundamental fairness (Cardozo)

         2. Total incorporation (Black)

         3. Selective incorporation (Ducan, court follows this approach)

            1. Test: whether a particular bill of rights guarantee is fundamental to our scheme of ordered liberty and system of justice (McDonald) / whether the right is deeply rooted in this nation’s history and tradition (Glucksberg)

2. Modern SDP Review of economic regulation: two approaches reaching the same result

   1. dominant approach: Carolene and Williamson: rational basis review, (economic activities are a kind of liberty):

      1. Economic regulations will be upheld when challenged under the due process clause so long as they are rationally related to a legitimate public purpose.

      2. hypothetical rationality: test looks for hypothetical, not actual, rationality (as long as Court can imagine some state of facts and legitimate purpose for the statute, the statute is upheld)

   2. Skupra: no review at all (economic activities are not liberty at all)

   3. As a practical matter, Williamson and Skrupa have same outcomes: Challenges to economic regulation always lose (no case since 1937 where an economic challenge has succeeded)

Modern SDP and Fundamental Rights

Contraceptives

1. Griswold

   1. Douglas, majority: not a 14A DP case, rather the right of privacy based on penumbras of Bill of Rights 1A, 3A, 4A, 5A – this approach has been criticized and not been followed

   2. Goldberg: 9A

   3. Harlan: 14A SDP – this is the modern theory

2. Eisenstadt and Carey

   1. The right to control reproduction is a fundamental right, and regulations imposing a burden on it can only be justified by compelling state interest and must be drawn to express only those interests.

Abortion

1. Post-viability: state can prohibit abortion, except for therapeutic abortions (Roe)

2. Pre-viability:

   1. general prohibition is not permissible

   2. regulation, undue burden: The government can regulate abortions before viability so long as it does not place an undue burden on access to abortions: the state regulation of abortion is an undue burden if it has the purpose or effect of placing substantial obstacles. (regulation forces women to choose a more dangerous method of abortion) (Casey and Roe)

      1. Effect: There is undue burden if the rule being challenged changes conduct in a large fraction of women. (Carhart)

      2. Purpose:

         1. Actual subjective purpose

         2. Objective purpose: what reasonable person would say

         3. Purpose to persuade is not invalidated because the state has an interest in potential life.

3. Stare decisis (Casey does not overrule Roe) under what conditions will the court overrule a prior decision

   1. The current court believes that the precedent is incorrect

   2. No reliance

   3. Change of facts/ change in understanding of fact

   4. Doctrinal anachronism: there is an evolution of legal principles that undermined the doctrinal foundation of the precedents

4. Examples:

   1. Waiting periods – OK (Casey)

   2. Informed consent: require that women be advised about the fetus and its characteristics at that stage of pregnancy. – OK (Casey)

   3. Fetal viability test – not sure

   4. Reporting and recording requirement (Casey)

   5. Medical procedures – not sure

   6. Partial birth abortion ban – OK (Carhart)

   7. Spousal notification – No (Casey)

5. Conditional spending: government is not constitutionally required to subsidize abortions. The exercise of a constitutional right does not create a duty for the state to subsidize the exercise of that right. Government can constitutionally make the choice to encourage childbirth over abortion.

   1. OK: Funds for abortion/ childbirth, plus addition bonus for childbirth

   2. OK: Funds for childbirth, not elective abortion

   3. OK: Funds for childbirth, not health related abortions

   4. Maher dictum, strict scrutiny: Welfare benefits, on condition that no abortion

Sexual activity and sexual orientation

1. Lawrence v. Texas

   1. The court does not articulate the level of scrutiny to be used FORK

      1. Court engaged in RBR: Court says “statute furthers no...

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