Homework: 14th questions for Wednesday; test Friday

FrontPage: Where are the following “rights” mentioned in the Constitution?

Privacy? Abortion? Physician-assisted suicide?

Gay marriage?

KIDS SAY THE DARNDEST THINGS

THE 9TH AMENDMENT

A penumbr(ell)a?

THE NINTH AMENDMENT

The enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the

people.

How would you translate this amendment?

THE PURPOSE OF THE 9TH:Purpose: Why do you think the 9th Amendment was added to the

BoR? To ensure that the rights and protections given Americans

would not be limited to only those rights specifically written down in the Bill of Rights or Constitution.

Some Framers, especially Madison, believed that: Including a specific list of rights/protections might actually

be counterproductive, because rights not included might be infringed upon or denied in the future.

That to protect Americans, an amendment of “construction” should be included that would provide for additional rights/protections not yet mentioned.

THE 9TH IN PRACTICE: This amendment has come to form the

basis of many of the most personal and controversial rights that Americans have been granted

The “creation” of these “new” rights typically involves “combining” rights already contained in the Bill of Rights:“Bill of Rights Chemistry”…

Adding together rights/protections, along with the 9th amendment, to “create” new rights/protections

TWO VIEWS OF CONSTITUTIONAL DECISION-MAKING 1) Judicial Activism - willing to depart from precedent, or

rule in opposition to perceived constitutional/ legislative intent. Protect or expand individual rights by “CREATIVE” and BROAD

interpretation of the Constitution; Justices see themselves as having an obligation to influence

POLICY Tendency to OVERTURN acts of the legislative and executive

In a sense, “reading into” the Constitution.

2) JUDICIAL RESTRAINT reluctance to declare laws/actions unconstitutional unless the conflict between the law and the Constitution is obvious. STRICT view of the Constitution and the rights/protections it offers Justices see themselves as having no role in making

LAWS/POLICY Tendency to UPHOLD acts of the legislative and executive

…unless they specifically violate some part of the Constitution or BoR.

GRISWOLD VS. CONNECTICUT (1965)

Griswold was Director of the Planned Parenthood League of Connecticut. She gave information, instruction, and advice to married

couples concerning birth control. Griswold was convicted under a Connecticut law which made

it a crime to provide counseling and other medical treatment, to married persons for purposes of preventing conception.

She challenged the law, claiming that the law violated her Constitutional rights.

Question Presented: Does the Constitution guarantee the right to a married couple’s access to information about contraceptives? No, the Constitution makes no mention of the “right to

marital, or other, privacy 

GRISWOLD VS. CONNECTICUT (1965)

However, the Supreme Court determined that Connecticut’s law was Unconstitutional

Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create “penumbras”, or zones, that establish a right to privacy.

Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

Thus, this decision “created” the right to privacy

 The Right to PRIVACY = 9th + 4th + 3rd + 1st   

ROE VS. WADE (1972)  Roe, a Texas resident, sought to terminate her

pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. Roe challenged the law, claiming that it violated her personal rights.

Question Presented: Does the Constitution prevent a state from making laws that restrict a “private” matter (in this case, an abortion)? NO, the Constitution makes no mention of abortion.

Therefore, it would seem that states are free to restrict this practice.

 

ROE VS. WADE (1972) The Supreme Court determined that the Texas law was…

Unconstitutional The Court held that a woman's right to an abortion fell within

the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourth and Ninth Amendments.

The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

Effect of the decision: The Supreme Court essentially forced states to permit first

trimester abortions. The second and third trimesters were still open for limitation.

Thus, the Constitution prevents states from infringing upon the right to an abortion. As with guns, “common sense” limitations are permitted, however.

 

Homework: 14th questions due Wednesday; test Friday

FrontPage: NNIGN

OREGON VS. GONZALES (2005) In 1994 Oregon enacted the Death with Dignity Act,

the first state law authorizing physicians to prescribe lethal doses of controlled substances to terminally ill patients. Attorney General John Ashcroft declared in 2001 that

physician-assisted suicide violated the federal Controlled Substances Act, and that he would prosecute doctors under the federal law. Oregon challenged this action by the government.

 Question Presented: Does the Constitution guarantee the “right to die” (right of states to make laws allowing physician-assisted suicide)? No, it makes no mention of this “right”.

On the other hand, does the Constitution give the government the power to limit this “right”?

 

OREGON VS. GONZALES (2005) The Supreme Court determined that the

federal government’s actions were.. Unconstitutional

Effect of the decision: Oregon’s assisted suicide law was allowed to

stand; the Court essentially said that states could legislate either way. **To this day, only 4 “jurisdictions” in the world allow for

euthanasiaOregon, Washington, Belgium and the Netherlands.

PA and 47 other states have laws that make physician-assisted suicide essentially the same as a murder.

WOULD YOU CONSIDER THIS LAW CONSTITUTIONAL, OR DOES IT INFRINGE ON

THE RIGHTS OF AMERICANS? The federal Defense of Marriage Act (DOMA)

Defines marriage as a legal union between one man and one woman

Note: PA has adopted DOMA as its own law regarding marriage; and also an amendment is pending in the state legislature to define marriage in the same way.

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman.

A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

Could this law be challenged on constitutional grounds?