Constitutional Law (Yoshino, Fall 2009) Table of Contents

Unenumerated Rights

1. 
   Unenumerated rights drawing some degree of heightened scrutiny under DP
   
   1. 
      (Not all fundamental though. If fundamental, gets SS)
      
   2. 
      Right of Privacy (marriage, contraception, abortion, read obscene material, keep extended family together, parents to control children, intimate sexual conduct)
      
   3. 
      Right to vote
      
   4. 
      Right to travel
      
   5. 
      Right to refuse medical treatment.
      
2. 
   9^th Amendment leaves open the idea that there are unenumerated rights of constitutional degree.
   

1. Three types of privacy

1. 
   Zonal
   
   1. 
      Space- home, body, physical. Your personal bubble that can’t be invaded without good reason.
      
   2. 
      Maybe Griswold?
      
2. 
   Relational
   
   1. 
      Relationships you have. Parents, couples. Can’t say I can’t live with my grandparents without a strong justification.
      
   2. 
      Griswold
      
3. 
   Decisional
   
   1. 
      Right to make decisions that so affect your personhood/identity that they have to be private
      
      1. 
         Space and Relations are proxies for the notion of personhood in the decisional notion of privacy.
         
   2. 
      Eisenstadt, Roe
      

1. Griswold v. Connecticut (1965) pg 1342

4. 
   CT criminalizes use of contraception.
   
5. 
   SC strikes it down as a violation of the 14^th Amend.
   
6. 
   How to discern a ‘right of privacy’ nowhere enumerated?
   
   1. 
      Penumbras – peripheral rights that are related to enumerated rights – casts a shadow.
      
      1. 
         1^st right to assembly implies privacy
         
      2. 
         3^rd – house is immune to quartering implies sancrosanctity in the home.
         
      3. 
         4^th – right of privacy in the home
         
      4. 
         5^th – against self-incrimination – rights of own private conscience.
         
      5. 
         These shadows overlap – more they overlap, the more we can infer that a right is guaranteed.
         
   2. 
      Uses these penumbras to distinguish from Lochner/West Coast Hotel – attaches it to textually-enumerated rights.
      
      1. 
         No analogous penumbras/zones of overlapping for freedom of K.
         
   3. 
      In the future, don’t have to elaborate all the penumbras, but can just cite Griswold and precedent
      

1. Eisenstadt v. Baird (1972) pg 1353

7. 
   ∆ convicted of distributing contraceptives to both married and unmarrieds.
   
   1. 
      Challenged the MA statute that prohibited use by unmarrieds only.
      
8. 
   Struck down statute under EP using rational basis (essentially with bite)
   
9. 
   Clarifies right to privacy as a right of the individual, married or single.
   
   1. 
      Decisional. This is fundamental.
      

1. Roe v. Wade (1973) pg 1388 [Blackmun]

10. 
    Strikes down TX statute prohibiting abortion except to save the mother’s life, on the basis of the 14^th Amend DP, right to privacy.
    
    1. 
       Moving away from Griswold penumbras, saying this is under the 14^th.
       
    2. 
       Griswold relied on textual modality, but now that we have Griswold as precedent, we can rely on the doctrinal modality.
       
11. 
    Blackmun focuses on history because in order for it to be a fundamental right under DPC, it either is
    
    1. 
       Deeply rooted in nation’s traditions and history
       
       1. 
          (or at least rebut the claim that the opposite is deeply rooted – show history isn’t on either side.)
          
       2. 
          (but normally we look at history in order to disestablish history – Sunstein thesis that this is for EP, whereas DP tends to canonize things – to check legislatures from deviating from longstanding traditions)
          
          1. 
             But EP and DP can’t tack in opposite directions for history and still work in tandem like we expect them to.
             
          2. 
             DP also used to disestablish many kinds of history as applied to certain groups.
             
             1. 
                A right being protected may also protect a group.
                
    2. 
       Implicit in the concept of liberty.
       
12. 
    State interests adduced – discourage illicit sexual conduct (rejected), danger of abortion (Blackmun accepts, but qualifies), protecting life/health of fetus (Blackmun accepts- though doesn’t say the fetus is a person- mother’s health trumps)
    
    1. 
       Play into the trimester framework nicely
       
       1. 
          T1: medical pro. uses judgment, state has no interest in interfering.
          
       2. 
          T2: not as safe  state’s interest in mother’s health can regulate
          
       3. 
          T3: viability of fetus  interest in potentiality of human life.
          
    2. 
       But as medicine advances, viability will be earlier and health of the mother will be less of an issue. Will reach a point where the line defining the interest of the mother will cross with the interest of the fetus.
       
    3. 
       Why does the court get to decide when viability happens, or if the fetus is a human life?
       
       1. 
          “Person” in C is post-natal. Textual modality, intra-textualism within the C.
          
          1. 
             Like Thomas in Lopez with ‘commerce’.
             
13. 
    What if had decided on EP?
    
    1. 
       Abortion places a disparate impact on women?
       
       1. 
          Would have to overrule Washington v. Davis.
          
    2. 
       Or like preg discrim cases- describe ‘sex’ as a term or art to include pregnancy.
       
       1. 
          Would have to overrule Geduldig.
          
    3. 
       Prob best the way done- use DP, but import a lot from EP into it.
       
       1. 
          Privacy is a more uniting, universal right
          
       2. 
          But an equality argument would make it more difficult later for Kennedy to wax on about women’s regret.