American Constitutional Development
American Constitutional Development PSC 2302
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This 27 page Class Notes was uploaded by Kacie Littel on Saturday October 3, 2015. The Class Notes belongs to PSC 2302 at Baylor University taught by Lance Thomas in Fall. Since its upload, it has received 9 views. For similar materials see /class/217924/psc-2302-baylor-university in Political Science at Baylor University.
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Date Created: 10/03/15
Federalism one of the 3 underlying principles that are not specifically mentioned in the constitution A way of structuring government where there is a national unit amp sub units usually along geographical lines where each has a sphere of authority and a constitutional right to exist Neither can abolish the other 0 Unitary system national gov has all the power Subunits have to constitutional right to exist ex Japan Brittan o Confederal system sub units have all the power National gov has no constitutional right to exist 2 basic constitutional clauses in Article 1 section 8 congress can regulate commerce in the states limits state governments Is about what states cannot do P 519 Ratified on July 9 1868 First time states are really regulated constitutionally quotNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US nor shall any state deprive any person 0 3 Equal protection clause not on test table 72 explain each concept 8 9 Q s on test o Economic struggle of Nationalists vs states rights o Leadership 0 Hamilton amp Marshal Vs Jefferson amp Madison o Type of power 0 Nationalists say constitution has implied powers EX Article 1 Section 8 States rights are ideologically opposed to the federally gov having implied powers Article 1 sec 8 are the reserved powers if it isn t listed there then it s a states right not a national right 0 o Constitutional interpretation 0 National Broad interpretation gives national gov more power 0 State Strict gives the states more power o Enumerated Powers related to the bank 0 National tax coining ect should give them the right to have a banking system States national gov shouldn t have the power to make a federal banking system Constitutional Authority 0 National the necessary amp proper clause gives us the right to establish a bank Meaning of Necessary 0 National convenient useful efficient State absolutely indispensable and essential 1St case McCullough V Maryland 1819 Facts 0 McCullough is a cashier at a federal bank in Maryland who refuses to print money on special paper that Maryland has a tax on He argues the necessary amp proper clause Maryland argues that the federal bank doesn t have a right to exist therefore must pay the tax because it isn t essential o McCullough argues that necessary means convenient useful and efficient o Court ruling o Marshal rules that McCullough wins 0 Necessary is defined as convenient useful and efficient 0 there is a right to establish a federal banking system 0 Maryland insists that they should still be able to tax the bank paper 0 Marshal rules that Maryland cannot tax a federal institution The power to tax is the power to destroyquot Marshal Keeps the states from choking off the federal power inside state lines States do not have a constitutional right to tax it off the 0 Federal gov cant tax state govs and state govs cant tax the federal gov Regulation Prohibition on state gov 0 Due process clause Ratified in 1868 Regulates states directly No state can deprive a citizen wo due process of law Liberty extends to economic liberty not just physical libert when referring to states is the due process clause 14th amendment 0 Commerce clause Limits 0 Av Louis Regulates what congress can do when regulating commerce How far they can go The Catch All of congress power Has a wide interpretive authority which gives them more power on state regulatory power 14th amendment passed after the civil war to better control the states iana 1869 restricts citizens from contracting an out of state insurance company Citizen says that this law is restricting their liberty and breaking the 14th amendment LIBERTY Freedom of CONTRACT n n n Lochner v New your n n n The court strikes down the Louisiana law o The court is starting to gravitate towards freedom of economy for citizens Engaging in economic protectionism protecting capitalism Court might have found that it was in the states police power if it had been bw 2 citizens fo the same state not 2 diff states Due Process clause forbids state interference bw subsitive due process restricts state regulatory power NY passes law against working bakery employees for mote than 10 hrsday 60 hrsweek Argument is that a bakery exceeds these work hours w an employee They say its unconstitutional because they r restricting their economic liberty State claims to be passing laws on health amp safety issues Only applied to NY businesses a Court declares NY law unconstitutional via 14th amendment They might be trying to regulate health and safety They might also be trying to increase quality of life for bakery employees They don t want businesses to abuse their employees by making them work to much The court says that the state cannot readjust economic bargaining power which is what the court thinks they are doing The federal gov steps in 2030 yrs later to regulate work hrs amp minimum wage States can use their Police Powers 10th amendment but where there is a real danger to society but adjusting economic powers violates the 14th amendment Federal regulatory power commerce clause GibbonsV Ogden n NYlegislature gives monopoly to Mr Ogden Mr Gibbons gets a monopoly from the federal gov Ogden goes to court to get Gibbons to quit Does the federal gov have the power over intrastate waters Ogden says state waters are under state control wants a narrow interpretation on the commerce clause Gibbons thinks that the commerce clause can cover the navigation of waterways including instate waterways recordin n n n n n NLRB v 1937 n US v EC Knight About the Sherman Anti trust act American Sugar challenges the Anti trust act as unconstitutional Court rules SATA as unconstitutional for the sugar refinement Court declares the manufacturing of a product as not commerce among the states ll l il i39i case therefore l The applies to all manufacturers so the federal gov cannot regulate the workplace child labor laws ect only states can Jones amp Laughlin Steel JLS fires 10 employees for being part of a union which is illegal by the commerce clause US v EC Knight ruling declares it as a state matter but the court here overturns the previous ruling n n n n upholds the court says commerce among the states covers productionmanufacturin 9 shipping amp intrastate commerce as long as it is intrastate at some point Regardless of the activity If it substantialy affects national economy then the fed gov can regulate it o It must be a large corporation amp cross state lines NLRB expands federal power Wickard V Filburn several Q s on test n n Agricultural Adjustment act sets a quota on wheat production to bring up wheat prices Reaches all wheat production in the country a man exceeds the quota and is fined by the federal gov even though he is using it on his farm not selling it He claims it is unconstitutional because his farm doesn t make a substantial effect on intrastate commerce The Cumulative effects theory o Although by themselves don t have a substantial effect when viewed n collectively all the small farmers would substantially affect intrastate commerce It would undercut the whole federal regulatory scheme The court ruled the law as constitutional 50 yrs after Wickard case not one piece of federal legislation passed pursuant to commerce clause authority is found unconstitutional by the courts US v Lopez 1995 n n n Federal gov passes the law that criminalizes handgun possession in school zones Gunfree school zones act 1990 Lopez argues that gun possession is not intrastate commerce so congress had no right to pass the law Congress said handgun possession raises insurance rates causes people to not go to school which causes them to not get a good job which affects the economy All that matters is that the activity affects intrastate commerce the activity doesn t have to be commercial andor economic Court finds the law unconstitutional The possession of a handgun in a school zone doesn t affect commerce o If there is some effect from handguns in schools then it is not substantial Good reason but not commerce Synopsis 0 USvMo of last class McCullough V Maryland necessary amp proper clause Gibbons V Ogden Commerce Clause gives US v EC Knight NLRB if is substantially effects interstate commerce Rickard V Filburn comprehensive US v Lopez the activity must be commercial like and there must be some sort of scheme that will be undercut by the activity rrison The gov provides harsher punishments for gender motivated violence cases Gonzale exam Congress is prepared to be challenged and has evidence Gender motivated violence is not an economic Court says that like Lopez gender motivate violence does not have a good enough connection to commerce No substantial connection to the national economy No larger regulatory scheme Intrastate Actions are not commercial or commercial like No larger regulatory scheme 0 O s V Raich 2005 2 Q s on Cal legalizes marijuana for medicinal use Under federal law marijuana is a Schedule 1 drug illegal period The DEA seize the marijuana plants and are prosecuted in Federal court They were not violating state law in any way Is the federal Gov comprehensive ban on drugs Does congress have the right to regulate the commercial Is there a drug clause in article 1 sec 8 O NO Is this commerce among the states 0 O O O 0 It is intrastate They were not selling it What is the gov so worried about Was it grown for medicinal purposes or not CS that it is a commodity that is bought and sold They r worried about people growing it for medicinal and sold for recreational Bought and sold Comprehensive regulatory scheme no exceptions They were worried about the medicinal use spreading to other states o It will undercut the regulation among the states 0 is the activity commercial Yes 0 Regulatory scheme 0 Yes Intrastate Yes because it could spread Difference bw this and Rickard marijuana is contraband substance where wheat is a food It is more for public safety One was for a commodity that was legal it isn t so much for an economic regulatory scheme o The Federal Gov can regulate marijuana Test for commerce substantial effects test overturned EC Knight Wickard NLRB Steel Lopez Morrison Gonzales Know the procession 1520 Q s over all the cases What does it all mean On recording Who really cares Marriage example How it would be connected to the commerce clause The feds can t rule under public safety because that is a state power Separation of Powers P122 o Some type of conflict bw the branches of federal gov o Horizontal analysis I Executive Branch o Article 2 sec 2 powers given to the Executive Branch P515 0 Pres is the commander amp chief Nominate a Ambassadors majority vote in senate Federal judges majority vote in senate Make treaties 23 of senate must concur Fill vacancies in the senate n n n II 2 theories of presidential power What are the president s powers How far does his power go 0 James Madison came up w it o Says that any action the pres takes must be specifically traceable to the constitution o The pres powers don t change or increase in times of national crisis If it isn t in article 2 the pres cant do it 0 18th amp 19th century idea o 2 3t wfeiid iliid 39El39w p123 o The pres can take any action as long as it isn t specifically forbidden by the constitution especially in times of crisis Is much more likely to allow for more expansive powers implied powers in times of crisis More predominate century Test info o Over federalism o 2 theories of presidential power o Commerce clause o Exam Tuesday P218 I Commerce Clause Noneconomic Motives Heart of Atlanta Motel v US 1966 Congress passes the civil rights act of 1964 p217 title 2 sec 201A 0 Everyone is entitled to the full Without discrimination 0 You cannot deny someone business solely based on their race private discrimination Congress is trying to limit discrimination Heart of Atlanta takes the Three reasons why Heart Of Atlanta Motel has a interstate character WI The subjective check recording The commerce clause can be used to regulate private discrimination as long as objectively there is a larger regulatory scheme Katzenbach v McClung p 218 o Ollie s Barbeque local people local joint o Same ruling as Heart of Atlanta Motel 0 The restaurant buys a large portion of their ingredients come from interstate commerce Doesn t have a larger regulatory scheme Test tips how has the court interpreted the constitution What did the court say in each case whywhy not 8 pt curve yea Separations of Powers Executive Branch o Impeachment O O O 0 Who has the sole power to impeach House of Representatives Article 1 Sec 2 What are the requirements for the pres to be impeached Treason Bribery Other high crimes amp misdemeanors Has the sole power to hold the trial The Senate A1S3 Majority vote to impeach Impeach means that they approve the charges not kicked out of office The Senate needs a 23 vote to convict The Chief Justice of the Supreme Court is the presiding officer in the trial 0 What type of penalty is impeachment Criminal Nope a Can be tried as a criminal case but you cannot be impeached in a criminal court Civil Nope Political Yep a You are removed from office 0 Has a pres ever been impeached and convicted No 0 2 presidents have been impeached Andrew Johnson Bill Clinton Nixon would have but he resigned first Gender Discrimination and the 14th Amendment s Equal Protection Clause Chapter 10 1 CURRENT Court Test for Gender Discrimination A law govt action that discriminates on the basis of gender will be held constitutional Not to violate the Equal Protection Clause ONLY if the law action is l Substantially Related to an 2 Important Governmental Interest if the government cannot meet the above test the law is struck down 7 held unconstitutional 11 Case Law Historical Progression of Prohibiting Gender Disc A Early Examples of Gender Discrimination upheld Minor v Happersatt 1875 State denial of a womanls right to vote does not violate the 143911 amendment Bradwell v Illinois 1873 State law barring women from obtaining a law license not against 143911 amendment Such a policy is rational for a state to steer women into fulfilling the noble and benign offices of mother and wife B The Court Strikes down a Gender Based Preference Reed v Reed 1971 1st use of the Equal Protection Clause to strike down SexDiscrimination Idaho law gave men a preference as administrators of estates The state claimed it acted to reduce workload of the courts by eliminating hearings between differentsex siblings Despite this rationale the court struck the law down as violating rational scrutiny though the tone of their language implied a heightened scrutrny Frontiero v Richardson 1973 Court rejects rational scrutiny for gender plurality for Strict Scty Court finds unconstitutional a federal law which provided benefits to a surviving female spouse of military service personal but not to surviving male spouses Four justices a plurality thought gender should be evaluated under strict scrutiny the remaining four thought the rational basis test was adequate for gender analysis C The Court Establishes heightened scrutiny Intermediate Scrutiny for Gender discrimination and other quasi suspect classi cations Craig v Boren 1976 Sex Discrimination analyzed under Intermediate Scrutiny for 1quot time Oklahoma law prohibited the d the sale of 32 beer only to males under 21 However under 21 females were not restricted Oklahoma argued that 2 of males in the 182 1 age group had been arrested for DWI while only 18 of females had been The Court analyzed gender discrimination for the first time under the new Intermediate Scrutiny test and found that maleness was not substantially related to the important government interest of preventing drunk driving A very small portion of males in the whole age group were arrested for DWI and thus a law banning all males in that group was not substantially related to the state interest of curbing male DWIs Also the law prohibiting the sale of the beer was not substantially related to the government goal of curbin male DWI since it was not illegal to actually drink the beer The government interest was not substantial because 32 beer is supposedly not very intoxicating anyway39 and even if it could be argued that it was the law only prohibited the sale of the beer to males Caban v Mohammed 1979 No Substantial relation between females and determining adoptions Facts NY law denied a father the right to veto his biological child s adoption It was the sole decision of the child s mother Holding The statute is unconstitutional There is no universal difference between men and woman as parents at every stage of the child s development The state might be free to make such distinctions while the child is an infant or where the father had not participated in the child s rearing D Gender and Disparate Impact Remedial Statute Cases Massachussels v F eeney 1979 Disparate Impact not enough to prove Sex Discrimination Facts Massachussets gave a hiring preference for military veterans for civil service jobs 98 of veterans in Massachussets were men Holding The law is not unconstitutional Only a showing of purposeful discrimination would give rise to an equal protection violation for gender The state can constitutionally act in spite of the fact and with the knowledge that women as group will be disparately a ected by such an action Only if a state is shown to have because of the law s disparateharmful effect 7 in other words enacted for the intentional and purposeful desire to harm women as a group will the state s action be held to be unconstitutional Mississippi University for Women v Hogan 1982 Gender Remedy must be speci c Facts W a state university and specifically its school of Nursing established 1971 prohibited men from taking nursing courses for credit and entering the nursing degree program The petitioner lived in the town where MUW was located and would have had to commute a substantial distance to attend other state supported schools with nursing programs that were coed Holding The court ruled the policy to be unconstitutional since there was no important governmental interest in allowing women but not men to obtain a nursing degree at W The state was not compensating for past gender discrimination since women had suffered no disadvantage related to the classification at issue ie nursing since women are in fat overrepresented In addition nursing is not exclusively a woman s job Note Almost every governmental argument in favor of genderbased statute has been upheld with a respect to an important governmental interest 7 the case above is an exception In fact most gender based statutes are struck down because they are not substantially related the important interest argued by the state E Stronger LanguageAnalysis for laws which re ect a stereotypical or traditional way of thinking and0r broad generalizations about females US v Virginia 1996 Exceedineg Persuasive added to Intermediate Scrutiny Test Facts Statesupported Virginia Military Institute VMI allowed only men to train there in order to become citizen soldiers VMI argued that its adversative method which emphasized rigorous physical training deprivation of privacy and hazing was made for men and would have to changed if women were admitted Virginia established an alternative program for women at the private allwom en liberal arts of Mary Baldwin College which emphasized the cooperative method It did not include the adversative method Holding The Court found that Virginia did not prove an exceedingly persuasive justi cation for its sex discrimination since it relied on overbroad generalizations about the talents and capacities of females since surely some women might want the adversative approach at VMI To determine whether a state s policy is important andor exceedingly persuasive the Court will evaluate the actual motivations for maintaining a gender segregation program as opposed to the justifications o ered by the state The Court will evaluate these actual motivations and make sure they are not premised on improper assumptions 7 ie perpetuating broad stereotypes about females and generalizations about the way women are The Court rejected the state s proferred argument that it was only promoting diverse educational approaches since at the time of VMI s founding in 1856 when women were not even offered public educational opportunities and had shown no genuine interest in diversity The court noted that Virginia s stated purpose must be their actual purpose VMI s justifications are based on such stereotypical assumptions and cannot show an exceedingly persuasive justification for not allowing women Women must be given the same opportunity as men Virginia s alternative at Mary Baldwin College is insufficient and not equal to the opportunities afforded men at VMI Note Singlesex education might pass Intermediate scrutiny and the added exceedingly persuasive just standard if an alternative school for women was set up that used the same approaches bene ts an methods as the male schools and was thus truly equal Therefore it s possible that a state could set up schools that were separate but equal III Examples of Gender Discrimination that have been upheld constitutional Not in Textbook A Discrimination Substantially Related to the State s Interest Rostker v Goldberg 1981 Maleonly draft in order to supply combat troops Facts Congress required draft registration for males only 7 not females Holding Congress desire to gain troops for combat was substantially related to their malesonly registration requirement since males are the only ones eligible for combat Michael M v Superior Court 1981 Prosecution of Males only in Statutory Rape Cases Facts California law provided for criminal prosecution of only males in statutory rape cases The female victim 7 though participating with consent 7 was not punished under the law Holding California s law is constitutional since the state s policy is substantially related to preventing teen pregnancy and protecting minors in general since the punishment for males equalizes the deterrent among the sexes The Court claimed that females had a builtin deterrent since only they could become pregnant In addition the court cited the need to encourage the reporting of such violations in these unique cases here the victim is also involved in the criminal action and this would likely happen more if women did not fear subsequent punishment Nuyen v INS 2001 Required Citizenship proof for child only if the American parent is the father Facts Congress required proof of a child s citizenship that was not born on American soil if the American parent of the child was the Father If the American parent was the mother no such proof was required Holding Discrimination is upheld because the state is promoting parentchild bonding here evidently just for males during the formative years of the child Requiring such eventual proof might a substantial relation encourage males to maintain contact with the child Case LawConcept Review Sheet PSC 2302 2quotd Exam Note Cases listed below are the ones most likely to be on the exam The material on this sheet is not the only material that will be on the exam however most of the case law questions will come from the cases listed below Case Law Outline FEDERALISM Chapters 7 and 8 Necessag and Proper Clause What are the parameters of the enumerated power of Congress McCullough v Maryland 188 Freedom of Contract Limits on States How are state governments limited when restricting economic liberty Allgeyer v Louisiana p 207 Lochner v New York p 208 Commerce Clause Power What can Congress do when regulating commerce Gibbons v Ogden p 209 US v EC Knight p 214 NLRB v Jones amp Laughl39n Steel p 215 Wickard v Filburn p 217 Gonzales v Raich p 220 Limits on Congress Commerce Power How is Congress limited when regulating commerce US v Lopez p 219 US Morrison p 220 Commerce Clause iNonEcon mi quot quot when regulating commerce Heart of Atlanta Motel v US p 217218 Katzenbach v McClung p 217218 of Congress Must congress have an economic motive General Concepts and Terms for Review Chapter 5 Separation of Powers in general Theories of Presidential Power Veto Power of the President Presidential Powers listed in Article II Chapter 6 Impeachment power of Congress Chapter 7 Federalism Confederation Unitary System Implied powers Necessary and Proper Clause A National Bank Federalists vs AntiFederalists States Rights in general Intergovernmental Tax Immunity Chapter 8 Procedural due process substantive due process Freedom of contract Directindirect effects Doctrine Substantial Affectation Doctrine Civil Rights Act of 1964 Chapter 11 Fundamental Rights and Substantive Due Process Sub stant1ve Due Process What is substantive Due process Remember the 14d1 amendment says no state shall take life liberty or property without Due process of law In the 19205 the Court begins to say that the word liberty means more than just physical liberty ie freedomliberty to contract and that the Due Process owed to citizens when the government takes away such a liberty is more than just a thin minimal procedure Rather Due Process guarantees substantive rights and prevents state from interfering and otherwise affecting those rights When these substantive rights ie fundamental rights and corresponding liberties are violated certain constitutional tests are employed to determine the constitutionality of the state s actions To find out which liberties are substantively guaranteed the court asks whether such a right that is affectedrestricted by the state is fundamental We now ask what are fundamental rights General information on Fundamental Rights 1 These rights are not explicitly listed in the constitution The debate centers around the connection between what rights if any the Due Process clause protects from state interference Some hold that Due Process stands on its own and may offer few if any protections that are likewise found in the Bill of rights Other asserts that these fundamental rights be at least tied to the explicit language or at least implied from the protections listed in the Bill of Rights Some say no connection is needed to protect such rights that are implicit in the concept of ordered liberty Obviously the notion of fundamental rights leads to the arguable notion that justicesjudges are given a great degree of latitude and authority in deciding what rights are indeed fundamental See Brief 114 page 303 in the text 2 Standard for review similar to the scheme employed for Equal Protection cases a If a law burdens or otherwise affects a fundamental right the Court then will analyze the law under the very demanding Strict Scrutiny test which is very hard for the Government to meet 1f the law does not impinge or restrict a right that is fundamental the government law is merely analyzed under the rational scrutiny and will likely be upheld 3 Examples of Fundamental Rights a Right to Privacy Griswold v Connecticut Eisenstandt v Baird Roe v Wade Casey b Right to Vote Reynolds v Sims Harper Kramer Dunn c Right to Interstate Travel Shapiro v Thompson 1 C quot quot 39 T 39 ofthe right to vote as quot J 39 General States have the constitutional ability to determine voter qualifications for federal elections unless overridden by Congress 7 federal elections only in Article 1 section 2 The Constitution does NOT explicitly limit a state s ability to determine voter requirements for state elections Any such limitations have been interpreted by the Court by use of the 14d1 amendment s equal Protection andor Due Process clauses Generally a state can determine andor restrict voting qualifications andor rights in the area of 1 age reasonable 2 citizenship and residence A Legislative Apportionment Voting Districts see pg 302303 1 Reynolds v Sims 1964 Using Equal Protection ClauseStrict Scrutiny One person One vote voting districts must be roughly equal in population Alabama law had state electoral districts in place since 1901 which in 1964 with very substantial differences in the number of voters in each district which made it theoretically possible for 25 of the state s population to elect a majority in the state senate The Court declared the apportionment unconstitutional and established the principle of one person one vote determining that voting districts must be roughly equal B Equal Access to Voting see page 304 1 Haiper v Virginia State Board of Elections 1966 Poll Taxes in State Elections Unconstitutional The court struck down a Virginia poll tax of 150 as a condition for voting in state elections annually The Court found little connection between wealth andor the ability to pay and the ability to intelligently participate in the electoral process note Wealth by ITSELF without effect on the voting is not a strict scrutiny category Also the 243911 amendment to the US Constitution had prohibited poll taxes in FEDERAL elections 7 the case above deals with STATE elections 2 Kramer v Union Free School District No 15 1969 The ballot cannot be restrict to interested voters or general and nonspecial purpose elections The Court struck down a NY statute which limited school district elections to persons who I owned or leased property within the district 2 or were parents of children in the district s public schools The Court said such a statute was not sufficiently tailored to the goal of limiting the ballot to those primarily interested in school affairs 3 Dunn v Blumstein 1972 Extended Duration of residence requirements to vote are unreasonable 3050 day requirements have upheld by the Court The Court struck down a Tennessee law which restricted the ballot to Tennessee residents who had resided in the state for at least one year in the state and three months in the county Also struck down the under the Right to Travel rationale 4 Mchardson v Mmirez 1974 States can deny right to vote to felons even those who have nished their sentence andor their parole requirements also see brief 115 page 305 The Court found that a California law placing restrictions on the voting rights of felons was not even subject to strict scrutiny because section 2 of the 14 amendment allows a state to abridge voting rights for those state citizens that have participated in rebellion or other crime 5 Bush v Gore 2000 States cannot arbitrarily acceptreject ballots and must institute uniform counting procedures in a timely manner in order for Congress to certify and determine the legitimacy of the presidential election 6 Crawford v Marion County Election Board 2008 States can require current 1 to vote The Court upheld an Indiana statute which required all citizens to show current state or federal identification in order to cast a ballot declaring this condition not to be an unconstitutional burden Equal Access to the Ballot by candidatesthird parties not covered on this handout II Constitutional Development of the Right to Interstate Travel 1 Shapiro v Thompson 1969 States cannot treat newlyarrived citizens different from other citizens when determining eligibility for welfare programs The Court struck down a Connecticut law which had required that citizens reside in the state one year before they were eligible for state aid under the AidtoFamilieswith DependentChildren program The Court found the state s interest in preserving scarce resources and preventing fraudulent collection of welfare payments as not compelling enough to justify the possible restriction on statetostate travel and freedom of interstate migration For the Court the state had created to classes of needy people that could not be distinguished from one another 111 Constitutional Development of the Fundamental Right to Privacy Griswold v Connecticut 1965 Privacy is a Fundamental Right A Connecticut law made it a criminal offense to aid or counsel anyone in the use of contraceptives The director of the local Planned Parenthood was convicted of counseling married persons in the use of birth control devices No users of the devices were actually charged in this case The Court finds that the Right to Privacy here the right to be counseled in the use of contraceptives although not expressly listed among the Bill of Rights emanates and can be abstractedimplied from certain other provisions in the Bill of Rights inamely the penumbras of the l 3 4391 53911 and 93911 amendments The Court claims that the state s law detrimentally impacts and inheres in the marital zone of privacy Because the law impinged upon this fundamental right the law was struck down Eisenstandt v Baird 1972 Extension of Right to Privacy to individuals The Court found unconstitutional a Massachussets law which permitted contraceptives to be distributed by registered physicians and pharmacists and only to married individuals The Court found that the Right to Privacy not only inhered in the marital relationship but was the right of the individual to be free form unwarranted governmental intrusion into reproductive matters concerning the use of contraceptives Roe v Wade 1973 Right to Privacy includes the Right to have an Abortion The Court struck down a Texas law along with the laws of 24 other states which allowed an abortion to be obtained only if done to save the mother s life The Court set forth specific guidelines and followed a trimester approach FIRST TRIMESTER States cannot ban or closely regulate abortion Fetusunborn child is not protected during this period Laws restricting abortion here are subject to Strict Scrutiny SECOND TRIMESTER States regulations that are reasonably related to the mother s health must pass the rational basis test are constitutional However the state cannot premise its actions on acting to protect the life of the fetusunborn child A at ban on abortion would be subject to Strict Scrutiny and likely struck down THIRD TRIMESTER After viability the ability for the fetusunborn child to live outside the womb the state can regulate even totally prohibit abortions in this period The state will be found to have a compelling interest in protecting the fetusunborn child and thus such state restrictions will pass strict scrutiny if reviewed in such a fashion Planned Parenthood of Southeastern Pennsylvania v Casey 1992 Roe partially overruled The Court struck down certain restrictive provisions of a Pennsylvania law that regulated abortion The Court found these provisions placed an undue burden not Strict Scrutiny on a women s right to obtain an abortion thus the trimester framework of Roe was replaced because it undervalued the State s interest in potential life A state regulation will be considered an unconstitutional undue burden if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus The state can still regulate the health and safety of the mother as long as it does not unduly burden this right After a fetusunborn child is determined to be viable the state can regulate in any way with respect to abortions not need to actually save the life of the mother or child The spousal notification was found to be an undue burden However the 24 hour waiting period with the exception for medical emergenciesO was upheld as was the provision which required parental consent at least one parent for an unmarried woman under the age of 18 note States are not required to put such constitutional protections in place but if they do the Court will find them to be constitutional
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