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15 Cards in this Set
- Front
- Back
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Constitution protects certain unenumerated fundamental rights as a substantive component of liberty protected by DP Clauses of 14A (states and localities) and 5A (federal government).
Equal protection often serves as basis for protecting many of these fundamental rights. Ask whether right is deeply rooted in nation's tradition. |
SC often (not always) reviews denial of rights under following framework:
1) Fundamental right: strict 2) Non-fundamental right: rational |
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Is it DP and/or EP protection?
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Denying everyone a fundamental right raises DP problem.
Denying some but not others a fundamental right also raises EP problem. |
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**Strict scrutiny:
marriage; procreation; contraception; custody/care/upbringing of children; keep extended family together; interstate travel; vote **Undue burden: abortion |
Rational basis:
economic rights; physician-assisted suicide; education Unspecified: Private, consensual adult sexual intimacy; refuse medical treatment; bear arms |
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Marriage & Divorce
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Substantial interference by state with right to marry is necessary to trigger strict scrutiny
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Procreation
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Involuntary sterilization of mentally retarded = invalid
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Contraception
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Ban on distrib and use of contraceptives, or limiting sale to pharmacist, is invalid
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Parental Rights
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Includes custody, care, upbringing of children
EX: state may not require public school education or education in English |
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Keep extended family together
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EX: city zoning may not prohibit extended family from living in a single household
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Travel
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Privileges & Immunities Clause of 14A protects right to interstate travel, which includes right to:
1) enter/leave a state 2) equal treatment if one becomes a permanent resident of a state No fundamental right to international travel |
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Right to Vote
Rational basis: tho right to vote is fundamental, states have broad powers to prescribe reasonable voting requirements (age, residency requirements, citizenship) |
Strict scrutiny: onerous and potentially discriminatory restrictions like poll taxes; dilution of right to vote (1 person, 1 vote principle in election); racial gerrymandering; political gerrymandering (never invalidated by SC and perhaps nonjusticiable)
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Abortion
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Previability: state may regulate but not prohibit abortions to protect the mother's health or life of the fetus, so long as regulation doesn't impose an undue burden on ability to obtain abortion
Post-viability: state may prohibit abortions unless necessary to protect mother's life or health |
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Abortion Restrictions
Undue Burden: - requiring spousal consent or notification - requiring extensive recordkeeping and reporting of abortions that is not directed at preserving maternal health or does not sufficiently protect patient privacy |
Not undue burden:
- requiring licensed physician - requiring informed consent -requiring 24 hr waiting period after informed consent - requiring parental consent for minor as long as judicial bypass available - banning 'partial birth' abortions - not funding abortions |
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Private Consensual Adult Sexual Intimacy
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Criminal ban on same-sex sodomy is not okay
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Refuse Medical Treatment
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Competent adult may refuse lifesaving treatment, but state may require clear/convincing evidence of individual's wish and may prevent family members from terminating treatment
No right to physican-assisted suicide State may compel vaccines against contagious diseases |
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Bear Arms
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At least against the federal gov, 2A protects right of individual to have gun in home for self-defense
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