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View Diary: The Power Of The State: Privacy Rights and Economic Rights (296 comments)

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  •  Footnote 4 (none)
    of Carolene Products:

    here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369 , 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, decided March 28, 1938.

    It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536 , 47 S.Ct. 446; Nixon v. Condon, 286 U.S. 73 , 52 S.Ct. 484, 88 A.L. R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697 , 713-714, 718-720, 722, 51 S.Ct. 625, 630, 632, 633; Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380 , 47 S.Ct. 655;

    Whitney v. California, 274 U.S. 357 , 373-378, 47 S.Ct. 641, 647, 649; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673 , 45 S.Ct. 625; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct. 255, 260.

    Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404 , 43 S.Ct. 628; Farrington v. Tokushige, 273 U.S. 284 , 47 S.Ct. 406, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177 , 58 S.Ct. 510, decided February 14, 1938, note 2, and cases cited.

    The SCOTUS is Extraordinary.

    by Armando on Thu Nov 03, 2005 at 10:53:03 AM PST

    [ Parent ]

    •  Armando (4.00)
      At risk of turning this too much into legal niceties, what is your take on use of the Equal Protection Clause as a way to preserve the rights of discrete and insular minorities rather than substantive due process?

      My thinking is that, ultimately, Equal Protection is the more progressive avenue, so Roe and Griswold aren't necessarily the key defining cases for the liberal/conservative split.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 11:09:18 AM PST

      [ Parent ]

      •  I saw your comment (none)
        and it struck me that that the Supreme Court did exactly what you suggest in the Family Medical Leave Act case, in a differet context of course.

        There the Court ruled that the Congress properly exercised its power under Section 5 of the 14th Amendment to remedy gender discrimination.

        Ironically, Rehnquist was the author of the opinion.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 11:11:31 AM PST

        [ Parent ]

        •  Very interesting point (none)
          about the FMLA case, and the more I think about it, the more clear Alito's hostility to use of the Equal Protection Clause becomes, which potentially could have even more negative ramifications than his views on Griswold/Roe due process issues.

          If Alito doesn't even believe (as Rehnquist did) that Congress has the authority to apply the EPC to remedy discrimination when Congress provided plenty of evidence that discrimination did exist, this is very problematic.

          I'm still reading Alito's opinions, but this EPC issue may become central just as his views on Griswold will be.

          Dems will fight for a Renewed Deal with the American people.

          by Hoyapaul on Thu Nov 03, 2005 at 11:26:22 AM PST

          [ Parent ]

        •  hey 'mando! (none)
          have you done any overviews of the 9th amendment, especially vis a vis strict constructionism?  it seems to me that strict construction is a fairie tale, with no mooring in either the constitution or the framers' intent.

          James Madison:

          "It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."

          but IANAL and could be missing something...

      •  I'll add that the reason (none)
        that I think Equal Protection is the more progressive avenue for Courts to use is because (generally speaking) it can be used in a number of different areas to address a "discrete and insular" minority's relative lack of political power vis-a-vis the majority. Applying substantive due process can be useful as well, but its use seems more limited.

        By forcing the majority to apply the laws it passes to ITSELF (and not just minorities), Equal Protection can and should be used to ensure that the law didn't pass simply because the minority didn't have political power with the "merits" of the legislation used as pretext. The law has to pass based upon its own merits, which can be best tested by making sure that the "merits" of the legislation apply to everyone.

        Dems will fight for a Renewed Deal with the American people.

        by Hoyapaul on Thu Nov 03, 2005 at 11:38:02 AM PST

        [ Parent ]

        •  Abortion was illegal for all.. (none)
           it applied and was enforced equally to all women. There was no distinction made for marital status, race, economic class, citizen/non citizen, age, etc...

           So what would be the challenge here?

           

          "Most people would sooner die than think; in fact, they do so."

          by sebastianguy99 on Thu Nov 03, 2005 at 12:16:40 PM PST

          [ Parent ]

          •  The challenge would be (none)
            that an abortion-restricting law is highly suspect because the law's effect applies grossly unequally to different groups of people (i.e. the law will affect women very much, and men virtually not at all), and that the members of the group that IS affected (women) are a political minority that has faced a long history of discrimination.

            So you look at:

            1. Who the law affects.
            2. Whether the group it affects has a long history of discrimination against it.
            3. Whether the group is a political minority.
            4. Whether the bill would have been passed if it affected everyone, not just this minority group. This analysis would be based on the legislature's reasons for passing the legislation.

            Something like abortion restrictions are highly suspect under this formulation.

            (Also, abortion is an usual case because only women can get pregnant, but my point remains).

            Dems will fight for a Renewed Deal with the American people.

            by Hoyapaul on Thu Nov 03, 2005 at 12:25:29 PM PST

            [ Parent ]

            •  oops, "unusual case" n/t (none)

              Dems will fight for a Renewed Deal with the American people.

              by Hoyapaul on Thu Nov 03, 2005 at 12:26:28 PM PST

              [ Parent ]

            •  Men can't have kids (none)
               so it by nature, not an act of government, the law applies to them only. If and when men can have kids(god forbid), then this approach might carry more weight.

               As for discrimination, remeber one has to prove intent, not just impact. Again, I do not see how asking this question would be particularly helpful.

              "Most people would sooner die than think; in fact, they do so."

              by sebastianguy99 on Thu Nov 03, 2005 at 01:03:41 PM PST

              [ Parent ]

              •  Intent v. impact (none)
                My argument is what the Court's reasoning should be and could be with a more progressive Court, not what it is now necessarily. Thus, you are right that now the Court requires a searching "intent" of discimination; I would focus more on the disciminatory effect than SCOTUS does now.

                In any case, I agree that abortion is an unusual case because of the fact that only women can have children. Nevertheless, I think Equal Protection still works mainly because of this fact -- it only applies to a historically-discriminated against political minority, not everyone.

                Thus, under the EPC abortion restrictions are highly suspect laws that that need a non-discriminatory compelling governmental interest to justify them.

                Dems will fight for a Renewed Deal with the American people.

                by Hoyapaul on Thu Nov 03, 2005 at 01:14:00 PM PST

                [ Parent ]

    •  Footnote 4 (none)
      The Carolene Products footnote dealt with the presumption of constitutionality of a law when dealing with "discrete and insular" minorities.  It has been applied in equal protection analysis, not in so-called substantive due process.

      No more Melissa Beans!

      by Paleo on Thu Nov 03, 2005 at 11:43:40 AM PST

      [ Parent ]

      •  Miss the point (none)
        When AFFECTING Constitutional Rights thereis a different standard - not deference.

        To wit, as I state in my post, Liberals believe government action against individual rights receives higher scrutiny.

        Economic legislation does not.

        The determination of Commerce power by the Congress is given great deference in a non-Constitutional  rights setting - to wit, absent the implication of Constitutional rights.

        My point being the divergent treatment given individual rights and economic rights.

        You seem to be arguing that that was not the case.

        Finally, I understand you disagree that there are privacy rights.

        You may be a Liberal, and that may be your position, but you do not hold the Liberal position on that issue.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 01:01:08 PM PST

        [ Parent ]

        •  Re: (none)
          But the question of individual versus economic rights and whether, in some situations, there is in fact a difference between the two, and whether individual rights should be given primacy over economic rights, has nothing to do with Griswold and Roe.

          I realize I do not take the "liberal" position regarding privacy rights, but I believe I take the progressive position exemplified by the 1937 to 1965 era of New Deal jurisprudence.

          No more Melissa Beans!

          by Paleo on Thu Nov 03, 2005 at 01:13:15 PM PST

          [ Parent ]

          •  Nothing to do with Griswold and Roe? (none)
            Frankly, that is an absurd comment.

            The level of scrutiny is determined by it. You are flat out wrong .

            The SCOTUS is Extraordinary.

            by Armando on Fri Nov 04, 2005 at 05:06:20 AM PST

            [ Parent ]

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