From my Con Law notes, only case that deal with the 9th Amend.
Griswold v. Connecticut
Griswold
? Connecticut has outlawed use of contraceptives, even by married couples
? 2 people charged as accessories ? SC says this is unC
? this is the quintessential SDP case.
? Lochner was bad b/c SC were making up things, striking down laws they thought were bad
? Notion of penumbrance ? certain Amend of BOR shine, expand
? Precedent ? Douglas cites Pierce & Meyer?wants them to be 1st Amend cases, not SDP (1st Amend did not apply to cases at the time they were decided)
? Penumbra ? (example) right to association put in C to promote 1st Amend?have to be able to associate to speak?Amend in BOR must have great effect than just what they say to make them happen?limits aren?t clear
? These examples in BOR are just examples of what LIBERTY is?14th Amend guarantees Liberty?BOR is not an exhaustive list, just examples?just have to show that something you want to promote that it?s similar to something on the list
? Two canons of statutory construction
o If you have a general term (liberty) then a list, you read the list as examples of what other things might be on the list
o Opposite ? list is limiting, only those things on the list are in
? Privacy & Neutral Principles ? see handout #12-3 #2 has been decided so narrowly, can be applied neutrally that it will only be applicable in the cases in which you want it to. Other theory is that it has to be neutral in its DERIVATION. Can?t just be will of the justices. In some cases the text answers the question of principle for you, for example free speech cannot be banned b/c it?s explicit in the C. However since the text does not allow for right to privacy or marriage, then raising a neutral principle is more difficult since there is no text to refer to.
? Goldberg ? Is there enough there in 9th Amend.
? 9th Amend problematic ? so openended, hard to say that it?s what the C says and not what the judges feeling. Very difficult for court?s to rely on this.
? Harlan, much more willing to say this is SDP.
? Douglas wants to avoid SDP so comes up with penumbra. Not
? Godlberg - used 9th Amend. Not pulling things out of 9th Amend directly, saying that liberty & DP must mean more than is textually in BOR.
? 9th Amend ? BOR lists things important to people in 1789. This Amend is a way to add/ensure future rights are protected. Says these are not exclusive rights, could mean that other rights are protected by state constitutions (one possibility). (Some state cons. Do have right to privacy). Or maybe it?s to remind Congress that they have a duty to protect people?s rights by statutes. Or Maybe it?s saying that these broader terms like liberty can include things that aren?t textually spelled out in C/BOR.
? Harlan ? willing to say this is SDP. We might as well admit what we?re doing & then try to justify why we?re doing it. Much of his reasoning comes from a prior case he had written an opinion on (case was viewed as not ripe). (Poe v. Ullman ?) Even though it?s a concurrence not adopted by majority of justices. Probably most persuasive & most realistically binding.
? We?re not going to try and come up with a rule to govern SDP (Harlan). So how will they keep the justices from doing whatever they want? He?s relying on notions of judicial restraint, craftsmanship ? justices understand difference between law & politics and will rule that way. Doesn?t want to bind them down with a rule for future cases. Harlan is the most conservative member of the SC, but he?s arguing that there are norms that constrain the judges & their rulings/actions. Says any other alternative is unreasonable. Any rule/formula will be unrealistic, too hard to draw a line. Very idealistic. He also thinks that the rights in BOR are examples, NOT exclusive examples. Idea is that you have these examples of due process/liberty ? have to figure out principle that governed these decisions you?ll have the principle to apply to future cases.
? 2 important things about Griswold
o intrudes on marriage, meant to be liberty that gov does not intrude on?something fundamental about relationship of married people
o the way you would enforce the law would be by kicking in the door and catching people in the act?why is this problematic? (how did common law deal with this? ? it would be trespassing?common law protects you by keeping people out of your house)?also protected by C (multiple Amend.) Enforcement in the home is particularly problematic. Combine this with liberty of marriage and this law is a very troubling law (none of the cases after this have two common interests intersect like this)
? In Con. Contraception is against the law (one of the few states to have this). Purpose of SDP is to get rid of outlier statutes. SDP clause brings the outlier states in line with the majority. This becomes problematic later. Some notion that DP clause get rid of unusual instrusions Harlan is not arguing that is wrong strictly b/c it?s a moral law, rather, he is saying that this right b/c marriage has been traditionally protected in law.
? (so we?ve decided this is a fundamental right ? so now have to decide if state?s interest is important...is the state?s intrusion justifiable
? Douglas ? higher degree of scrutiny. The law is trying to prevent infidelity, SC says there are other ways to stop infidelity without this law. Rational basis test (eye doctors?other ways to promote ocular health without this law but they let it stand b/c not intruding on a fundamental right) is that we don?t ordinarily look for less intrustive ways. Even if you?re pursuing a legitimate end there are less intrusive ways to do this. (this is STRICT SCUTINY even though he doesn?t call it that)
? Douglas says Penumbra, really means that BOR helps us figure out what liberty/DPC mean. Goldberg ? 9th Amend tells us that BOR is not an exclusive list. Harlan ? let?s talk about liberty & DPC. Important thing is which of these rationals became intellectually persuasive in later cases. (Harlan most important to later cases).
? Griswold really starts ball rolling towards Roe v. Wade.
? After 1937 SC says we?re really to uphold really dumb laws b/c we don?t? want to go back to Lochner era
Griswold
1) Penumbra effect ? (Douglas) is so determined not to say SDP that he says C has shiny areas around it (??) (young ? very dumb). People have right to be secure in their homes, leads to right to privacy. If you?re going to add rights to the due process clause then makes sense to look at other provisions of C.
2) 9th Amend ? (Goldberg/Warren/Brennan)?blank check for additional Congressional rights. So hard to figure out what rights should be there/not there. Right there in black & white in BOR.
3) SDP ? (Harlan) (relying on earlier case Coe v. Ulman).
4) Black ? should be no unenumerated rights. He?s a firm textualist. C doesn?t say privacy so too bad.
Griswold v. Connecticut
Griswold
? Connecticut has outlawed use of contraceptives, even by married couples
? 2 people charged as accessories ? SC says this is unC
? this is the quintessential SDP case.
? Lochner was bad b/c SC were making up things, striking down laws they thought were bad
? Notion of penumbrance ? certain Amend of BOR shine, expand
? Precedent ? Douglas cites Pierce & Meyer?wants them to be 1st Amend cases, not SDP (1st Amend did not apply to cases at the time they were decided)
? Penumbra ? (example) right to association put in C to promote 1st Amend?have to be able to associate to speak?Amend in BOR must have great effect than just what they say to make them happen?limits aren?t clear
? These examples in BOR are just examples of what LIBERTY is?14th Amend guarantees Liberty?BOR is not an exhaustive list, just examples?just have to show that something you want to promote that it?s similar to something on the list
? Two canons of statutory construction
o If you have a general term (liberty) then a list, you read the list as examples of what other things might be on the list
o Opposite ? list is limiting, only those things on the list are in
? Privacy & Neutral Principles ? see handout #12-3 #2 has been decided so narrowly, can be applied neutrally that it will only be applicable in the cases in which you want it to. Other theory is that it has to be neutral in its DERIVATION. Can?t just be will of the justices. In some cases the text answers the question of principle for you, for example free speech cannot be banned b/c it?s explicit in the C. However since the text does not allow for right to privacy or marriage, then raising a neutral principle is more difficult since there is no text to refer to.
? Goldberg ? Is there enough there in 9th Amend.
? 9th Amend problematic ? so openended, hard to say that it?s what the C says and not what the judges feeling. Very difficult for court?s to rely on this.
? Harlan, much more willing to say this is SDP.
? Douglas wants to avoid SDP so comes up with penumbra. Not
? Godlberg - used 9th Amend. Not pulling things out of 9th Amend directly, saying that liberty & DP must mean more than is textually in BOR.
? 9th Amend ? BOR lists things important to people in 1789. This Amend is a way to add/ensure future rights are protected. Says these are not exclusive rights, could mean that other rights are protected by state constitutions (one possibility). (Some state cons. Do have right to privacy). Or maybe it?s to remind Congress that they have a duty to protect people?s rights by statutes. Or Maybe it?s saying that these broader terms like liberty can include things that aren?t textually spelled out in C/BOR.
? Harlan ? willing to say this is SDP. We might as well admit what we?re doing & then try to justify why we?re doing it. Much of his reasoning comes from a prior case he had written an opinion on (case was viewed as not ripe). (Poe v. Ullman ?) Even though it?s a concurrence not adopted by majority of justices. Probably most persuasive & most realistically binding.
? We?re not going to try and come up with a rule to govern SDP (Harlan). So how will they keep the justices from doing whatever they want? He?s relying on notions of judicial restraint, craftsmanship ? justices understand difference between law & politics and will rule that way. Doesn?t want to bind them down with a rule for future cases. Harlan is the most conservative member of the SC, but he?s arguing that there are norms that constrain the judges & their rulings/actions. Says any other alternative is unreasonable. Any rule/formula will be unrealistic, too hard to draw a line. Very idealistic. He also thinks that the rights in BOR are examples, NOT exclusive examples. Idea is that you have these examples of due process/liberty ? have to figure out principle that governed these decisions you?ll have the principle to apply to future cases.
? 2 important things about Griswold
o intrudes on marriage, meant to be liberty that gov does not intrude on?something fundamental about relationship of married people
o the way you would enforce the law would be by kicking in the door and catching people in the act?why is this problematic? (how did common law deal with this? ? it would be trespassing?common law protects you by keeping people out of your house)?also protected by C (multiple Amend.) Enforcement in the home is particularly problematic. Combine this with liberty of marriage and this law is a very troubling law (none of the cases after this have two common interests intersect like this)
? In Con. Contraception is against the law (one of the few states to have this). Purpose of SDP is to get rid of outlier statutes. SDP clause brings the outlier states in line with the majority. This becomes problematic later. Some notion that DP clause get rid of unusual instrusions Harlan is not arguing that is wrong strictly b/c it?s a moral law, rather, he is saying that this right b/c marriage has been traditionally protected in law.
? (so we?ve decided this is a fundamental right ? so now have to decide if state?s interest is important...is the state?s intrusion justifiable
? Douglas ? higher degree of scrutiny. The law is trying to prevent infidelity, SC says there are other ways to stop infidelity without this law. Rational basis test (eye doctors?other ways to promote ocular health without this law but they let it stand b/c not intruding on a fundamental right) is that we don?t ordinarily look for less intrustive ways. Even if you?re pursuing a legitimate end there are less intrusive ways to do this. (this is STRICT SCUTINY even though he doesn?t call it that)
? Douglas says Penumbra, really means that BOR helps us figure out what liberty/DPC mean. Goldberg ? 9th Amend tells us that BOR is not an exclusive list. Harlan ? let?s talk about liberty & DPC. Important thing is which of these rationals became intellectually persuasive in later cases. (Harlan most important to later cases).
? Griswold really starts ball rolling towards Roe v. Wade.
? After 1937 SC says we?re really to uphold really dumb laws b/c we don?t? want to go back to Lochner era
Griswold
1) Penumbra effect ? (Douglas) is so determined not to say SDP that he says C has shiny areas around it (??) (young ? very dumb). People have right to be secure in their homes, leads to right to privacy. If you?re going to add rights to the due process clause then makes sense to look at other provisions of C.
2) 9th Amend ? (Goldberg/Warren/Brennan)?blank check for additional Congressional rights. So hard to figure out what rights should be there/not there. Right there in black & white in BOR.
3) SDP ? (Harlan) (relying on earlier case Coe v. Ulman).
4) Black ? should be no unenumerated rights. He?s a firm textualist. C doesn?t say privacy so too bad.
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