Substantive due process - Revision history

DavidB4-bot: /* Griswold v. Connecticut */Spelling, grammar, and general cleanup

2016-11-11T19:06:40Z

Griswold v. Connecticut: Spelling, grammar, and general cleanup

DavidB4-bot: clean up

2016-09-10T05:21:01Z

clean up

DavidB4-bot: clean up & uniformity

2016-07-13T19:51:21Z

clean up & uniformity

WesleyS: /* Griswold v. Connecticut */ link to de-orphan

2009-02-15T16:45:47Z

Griswold v. Connecticut: link to de-orphan

Deborah: /* The Roe Controversy, and its Progeny */

2008-05-19T18:26:05Z

The Roe Controversy, and its Progeny

Aschlafly: Reverted edits by MichaelS (Talk); changed back to last version by RobSmith

2007-10-07T23:52:05Z

Reverted edits by MichaelS (Talk); changed back to last version by RobSmith

MichaelS at 23:31, October 7, 2007

2007-10-07T23:31:15Z

RobSmith: Reverted edits by MichaelS (Talk); changed back to last version by JesusSaves

2007-10-05T22:00:11Z

Reverted edits by MichaelS (Talk); changed back to last version by JesusSaves

MichaelS at 21:57, October 5, 2007

2007-10-05T21:57:25Z

JesusSaves: Lochner overturned state laws relating to bakeries, not federal minimum wage laws. Minimum Wage laws were struck down in Adkins v Children's Hospital (1923)

2007-05-16T01:20:56Z

Lochner overturned *state* laws relating to bakeries, not federal minimum wage laws. Minimum Wage laws were struck down in Adkins v Children's Hospital (1923)

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 The case [[Griswold v. Connecticut]] emerged as a test case of a rarely-enforced 1879 law.  Specifically, Connecticut had forbidden by statute the sale of contraception materials.  Griswold, the petitioner-physician in the case, was indicted for selling condoms.  The case came to the Supreme Court, where the Court struck down the Connecticut statute as abridging a fundamental right to privacy in the "marital bedroom."
-Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence<ref>See e.g. McCulloch v. Maryland.</ref>, that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
+Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence,<ref>See e.g. McCulloch v. Maryland.</ref> that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
 === The Roe Controversy, and its Progeny ===

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 The case [[Griswold v. Connecticut]] emerged as a test case of a rarely-enforced 1879 law.  Specifically, Connecticut had forbidden by statute the sale of contraception materials.  Griswold, the petitioner-physician in the case, was indicted for selling condoms.  The case came to the Supreme Court, where the Court struck down the Connecticut statute as abridging a fundamental right to privacy in the "marital bedroom."
-Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence<refer>See e.g. McCulloch v. Maryland.</ref>, that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
+Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence<ref>See e.g. McCulloch v. Maryland.</ref>, that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
 === The Roe Controversy, and its Progeny ===

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 Substantive due process is the idea that the due process clause of
 the [[Fourteenth Amendment]] regulates not only the procedures due a
-citizen, before revoking a right (procedural due process)<ref>Procedural due process is dealt with in the [[Mathews v. Eldridge]] framework.</ref>, but also what rights may be revoked at all.
+citizen, before revoking a right (procedural due process),<ref>Procedural due process is dealt with in the [[Mathews v. Eldridge]] framework.</ref> but also what rights may be revoked at all.
 It has become a legal theory tied uniquely in the area of
@@ Line 14: / Line 14: @@
 ===Standard of Review===
-Substantive due process protects all rights from deprivation without [[rational basis review| rational basis]] - that is to say, the Government may not burden exercise of a right without having a reason for doing so.  However, this reason may be pretextual or barely sufficient under rational basis review, and thus the protections of substantive due process for blanket rights are very weak indeed.<ref>[[Lawrence v. Texas]] may have changed this.  See the article for a discussion.</ref>
+Substantive due process protects all rights from deprivation without [[rational basis review|rational basis]] - that is to say, the Government may not burden exercise of a right without having a reason for doing so.  However, this reason may be pretextual or barely sufficient under rational basis review, and thus the protections of substantive due process for blanket rights are very weak indeed.<ref>[[Lawrence v. Texas]] may have changed this.  See the article for a discussion.</ref>
 Rights that are deemed "fundamental," though, may only be abridged if a compelling state interest exists, and the abridgment is narrowly tailored to suit that interest.  In other words, to abridge a fundamental right, the state must pass "[[strict scrutiny]]."

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 The case [[Griswold v. Connecticut]] emerged as a test case of a rarely-enforced 1879 law.  Specifically, Connecticut had forbidden by statute the sale of contraception materials.  Griswold, the petitioner-physician in the case, was indicted for selling condoms.  The case came to the Supreme Court, where the Court struck down the Connecticut statute as abridging a fundamental right to privacy in the "marital bedroom."
-Specifically, the Court stated, building on the "enumerated/implied" distinction set forth in early Supreme Court jurisprudence<refer>See e.g. McCulloch v. Maryland.</ref>, that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
+Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence<refer>See e.g. McCulloch v. Maryland.</ref>, that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning.  The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs.  By regulating condoms, the state had gone too far, and run afoul of this fundamental right.
 === The Roe Controversy, and its Progeny ===

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 A special case of substantive due process jurisprudence are those rights which involve a degree of "third-party harm"; that is, the chance that someone or something else may suffer by exercise of the right.  Depending on the nature of the right involved, and its balance against the possibility of harm, rights involving a third-party harm may be curtailed or completely engulfed by the potential for harm.  The right to assisted suicide, for instance, is wholly subsumed by the potential for abuse.<ref>Washington v. Glucksberg.</ref>
-The right to choice in family planning, or, the right to an abortion, is another right carrying a possibility of a third-party harm .  The Court held in ''Casey'' that this right, by nature of the balance of the harm against the right, would be managed by the "undue burden" test.<ref>Casey, supra.</ref>  That is that the exercise of the right will not be unduly burdened.  A burden that is "due," however, may be one that recognizes the state's interest in preventing abortions where avoidable.  This is the ultimate synthesis of the ''[[Roe v. Wade]]'' debate, an attempt at a synthesis between the far-left view (abortion is a right that cannot be abridged) and the far-right view (abortion is always wrong) that allows for exercise of the right under limited circumstances.  This framework fits neatly within Justice Stevens' view of fundamental rights law as an expression of the freedom from "arbitrary restraint": that is, the restraint upon abortion rights, where not "undue," are not "arbitrary."
+The right to choice in family planning, or, the right to an [[abortion]], is another right carrying a possibility of a third-party harm .  The Court held in ''Casey'' that this right, by nature of the balance of the harm against the right, would be managed by the "undue burden" test.<ref>Casey, supra.</ref>  That is that the exercise of the right will not be unduly burdened.  A burden that is "due," however, may be one that recognizes the state's interest in preventing abortions where avoidable.  This is the ultimate synthesis of the ''[[Roe v. Wade]]'' debate, an attempt at a synthesis between the far-left view (abortion is a right that cannot be abridged) and the far-right view (abortion is always wrong) that allows for exercise of the right under limited circumstances.  This framework fits neatly within Justice Stevens' view of fundamental rights law as an expression of the freedom from "arbitrary restraint": that is, the restraint upon abortion rights, where not "undue," are not "arbitrary."
 == References ==
 <references/>

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-This page has been withdrawn from Conservapedia as part of a mass removal of content added by [[user:AmesG|Ames]] pursuant to a copyright challenge brought by the same user.  The challenge rests on two grounds:
+{{discrimlaw}}
-#Some content was added prior to the institution of Conservapedia's [http://www.conservapedia.com/index.php?title=Conservapedia:General_disclaimer&oldid=82832 copyright policy] on 2 April 2007, and is now removed by the user's unencumbered and uncontroverted ability to control his own content in the absence of contract or waiver to the contrary.
+== The Doctrine ==
-#Some content, added after Conservapedia's copyright policy came into effect, is withdrawn under the below reasoning:
+===Usage of the Doctrine ===
-*If Ames supplied content gratuitously, he now revokes it.
+It has become a legal theory tied uniquely in the area of
-*Any waiver executed by the user would have been a contract; however, the professed disclaimer asserts that it is not a contract.  Ergo, no waiver was made.
+[[fundamental rights]] jurisprudence - or, the protection of certain
-*If the waiver was a contract, it fails for lack of consideration.  No exchange was contemplated or made between the parties; detriment was suffered by user in the loss of copyrighted privileges, time, and effort put into text, but no compensation was received in turn.  If use of the site constitutes compensation, such use was already provided free of charge prior to copyright waiver, and even prior to contribution, and past consideration is no consideration.
+inalienable, yet undefined constitutional rights.  [[Antonin Scalia]]
-*If the waiver was a contract, it was procedurally unconscionable and voidable.  User has no power under the agreement, and a simple contract of adhesion such as this one professes to be is voidable as a matter of public policy.  As voidable, it is now void.
+sharply dissents from almost all cases upholding substantive due
-*If the waiver was a contract, and use of the site was acceptance, the contract was breached by Conservapedia.  Conservapedia, by virtue of holding out certain guidelines and "commandments," incorporates these commandments into the the contract.  These "commandments" were breached with regard to users, as user's access to the site was terminated without cause (under the commandments) in May 2007.  Prior to May 2007, user had not violated the commandments.  Having been breached, waiver is inoperative.
+process, believing that there are no fundamental rights if they are not
-*If the waiver was a contract, Conservapedia was unjustly enriched by avowadly valuable material.
+defined by the constitution, or discoverable from American history.

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 The doctrine was later, famously, picked up by the Court in ''Lochner'',
-a decision which held that federal minimum wage laws intruded too far
+a decision which held that a New York State law regulating the hours and working conditions of bakery employees intruded too far
 into the "fundamental right" for an employee and an employer to freely
 contract.  This fundamental right could not be abridged even by fair