Limits on State Regulatory and Taxing Powers Flashcards Preview

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Flashcards in Limits on State Regulatory and Taxing Powers Deck (67):

Supremacy Clause

=If there is a conflict between federal and state law, the federal law controls and the state law is invalidated because federal law is supreme.



1) Implied Preemption
2) Express Preemption
3) Conflict Preemption
4) Impediment Preemption
5) Field Preemption


Implied Preemption

=Implied by congressional intent
=Valid federal law overrides state law.
1) Conflict Preemption:
==Florida Lime (CA Avacado case)
===Ca state law prohibited importing avacados based on oil content. Federal government didn't gauge avacado standards based on oil content.
===Held: If federal law sets minimum standards then a state law making stricter standards is not trumpted. Here it is possible to comply with both laws. The federal standard is the floor, then the state can make higher regulations. But if federal standard is a ceiling, state cannot go over.


Express Preemption

=Implied by congressions intent
=Valid federal law overrides state law
=When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that federal law is intended to preempt


Impediment Preemption

=State law that doesn't directly conflict but impedes federal law. Courts must determine that federal objective and decide the point at which state regulations unduly interfere with achieving the goal.
=PG&E v. State Energy
==Facts: federal law that governed the regulations of safety concerning nuclear power plants, did not preempt (trump) state law, which placed a delay on construction of nuclear power plants within CA.
==State law is trumped if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. However, the Supreme Court will not interfere where there is a permissible and good basis for the state law. (safety concerns)


Field Preemption

=So substantially regulated or assigned and Congress has legislatd so much that it has taken over an entire area of law.
= Congress has left no room for thee states to supplements any laws.
= Ex: Immigration, Nuclear Safety, Naturalizations, Deportation, Foreign Affairs.


Dormant Commerce Clause

=Although not expressly laid out in the, this is a critical area of con law. The Court has established that the Commerce Clause is not only a "positive" grant of power to Congress, but it is also a "negative" constraint upon the States.
= The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.
= If Congress has not enacted legislation in a particular area. the states are free to regulate, as long as the state statutes.
==1) do not discriminate against out of state commerce (unless the state is acting as a marketing participant rather than a regulator);
==2) do not unduly burden interstate commerce; and
==3)do not regulate extraterritorial (wholly of state) authority


Modern Dormant Commerce Clause Q1

Q1: Does the State law discriminate against the interstate commerce?
=A) Facially discriminatory
==Invalid- unless necessary for state
==Philadelphia v. NJ: a law that overtly blocks the flow of interestate commerce of a state's border. NJ enacted a law prohibiting importation of waster from other states.
==Held: unduly burdens interstate commerce.
=B) Discriminatory purpose (faciallly neutral)
==Out of staters are treated differently than in staters.
==EX: mil sellers charge more to out of staters.
---What is the law?
----Why not discriminatory?
=C) Discriminatory effect (facially neutral)
==Ex: all trucks must have a certain mud flap going through a state, burdens interstate commerce by drivers having to change when coming through. Doesn't distinguish between in state and out of staters. Balancing test of the benefit of the state.


Modern Dormant Commerce Clause Q2A

=General Approach: Dean Milk Co v. City of Madison (1951)
==Illustrates the rigoroous scrutiny used when laws are deemed discriminatory
==The section in issue makes it unlawful to sell any milk as pasteurized unless it has been processed and bottled at an approved pasteurization plant within a radius of five miles from the Central Square of Madison.
==Regulation must yeild to the principle that "one state in its dealings with another may not place itself in a position of economic isolatino.
=What could overcome the presumption of invalidity? Maine v. Taylor
==If facially discriminatory-we can overcome the presumption if there is no other way to overcome state interests in a less burdensome way - the way Ct has balanced it: if it seems protectionist against the market, we need evidence.
==State has the burden of showing that the law both serves a legit purpose and that the purpose can't be achieved by available non-discriminatory means.


Modern Dormant Commerce Clause Q2A

=General Approach: Dean Milk Co v. City of Madison (1951)
==Illustrates the rigoroous scrutiny used when laws are deemed discriminatory
==The section in issue makes it unlawful to sell any milk as pasteurized unless it has been processed and bottled at an approved pasteurization plant within a radius of five miles from the Central Square of Madison.
==Regulation must yeild to the principle that "one state in its dealings with another may not place itself in a position of economic isolatino.
=What could overcome the presumption of invalidity? Maine v. Taylor
==If facially discriminatory-we can overcome the presumption if there is no other way to overcome state interests in a less burdensome way - the way Ct has balanced it: if it seems protectionist against the market, we need evidence.
==State has the burden of showing that the law both serves a legit purpose and that the purpose can't be achieved by available non-discriminatory means.


DCC Q2B Analysis when Not discriminatory

=Pike v. Bruce Chruch
==Provision says, "all cantaloupes grown in Arizonz and offered for sale must be packed in regular compact arrangement..."
==Prohibited transport of unpacked melons from AZ to CA
==Rule: Where the statutes regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly execessive in relation to the putative local benefit.
==If a legitimate local purpose is found, then the questions becomes one of degree.
=Bibb v. Navajo Freight Lines
==Truck flap case- it would cause traffice delay if some had to change the flaps when entering from one state to the other.


Summary of DCC Test

1) Pursue a legitimate state purpose
2)be rationally related to that objective; and
3)balancing by the court must show that the burden imposed by the state on interstate commerce must be outweighed by the state's interest in enforcing its regulation. courts will consider whether the state interest could have been equally served by a regulation with lesser import on commerce.
==If Discriminatory: INVALID unless no less discriminatory means to advance a legitimate state interest; virtually per se rule.
==If NOT Discriminatory: VALID unless burden on interstate commerce is clearly excessive in relation to the putative local benefits.


Summary of DCC Test

1) Pursue a legitimate state purpose
2)be rationally related to that objective; and
3)balancing by the court must show that the burden imposed by the state on interstate commerce must be outweighed by the state's interest in enforcing its regulation. courts will consider whether the state interest could have been equally served by a regulation with lesser import on commerce.


Privileges and Immunities Clause

=Interpreted as limiting the ability of states to discriminate against out of staters with regards to constitutional rights or important economic activities.

=Article IV, Sec. 2 - "citizens of each state shall be entitlted to all privileges and immunities of citizens in the several states" - Supreme Court has interpreted this as limiting the ability of a state to discriminate against out of staters with regard to fundamental rights or important economic activities.

=Dormant commerce Clause and Privileges and Immunities overlap; both can be used to challenge state laws, yet there are differences:
==P&I Cluase can only be used if out of staters are discriminated
==DCC can challenge burden on interestate commerce (exceptions to DCC also do not apply in P&IC)

1) Has the State discriminated against out of staters with regard to privileges and immunities that it benefits its own citizens?
2) If there is discrimination, is there a sufficient justification for the discrimination.


Civil Rights and Civil Liberties

The Text of the Constitution contains few provisions concerning individual liberties. Most of our liberties are in the Bill of Rights (first 10 amendments- first 8 refer to protection of individual rights.


Application of Bill or Rights to the states: 3 theories)

Pre-Civil War
There are several ways the Bill of rights could apply:
=Baron v. Baltimore (1833)
==We apply same rules to localities/cities as we would to the State.
==If federal gov't has done what Baltimore, would it be a violation? YES, violates 5th Amendments.
==Barron sued the city for taking proprty without just compensation in violation of the 5th amendment Taking Clause (taking of property without just compensation) of ruining wharf and making the water too shallow.
==Amendments to the constitution were intended as limitations solely on the exercise of power by the federal government and are not applicable to the states. Bill of Rights were inteded to be limitations on the federal government.


Due Process Incorporation

Most of the rights protected against federal infringement by the Bills of Rights are also "incorporated" into the 14th amendment so that they also apply to state and local governments.


Twinning v. NJ

=Incorporation tells us that whenever you take away a fundamental principle liberty you have to have a compelling reason to do it or it is not fair. Violation of due process.
=Incorporation makes the 14th Amendment "Liberty" = hyperlink to Bill of Rights
==No State shall depreive citizens of the amendments of the BOR
===McDonald v. Chicago (2010)
===DC v. Heller - Individual right to have a handgun ownership in the home for protections (2nd Amendment) ** only way to protect this is by incorporating it in DC
===Why does it limit the action of states? Whats the reasoning?--> Fundamental/Deeply rooted in Country's tradition-should be incorporated as limits on the states as well. Rights that are in the the BOP are essential to our self understanding of our entity.
===Denial by Chicago or state of the right to own a gun for self-defense is a deprivation of the due process clause of the 14th Amendment.


Provisions not incoporated

3rd (soldiers)
5th (grand jury)
7th (civil jury)
8th (excessive fines)


State Action Doctrine

Private Conduct does not have to comply with the Constitution.
Government action must be present for us to find a constitutional violation.
State actors are limited within the constitution (E.G. any member of executive, legislature, or judicial branch, state or federal , and local entities.


Civil Rights Cases: United States v. Stanley of 1875

=Prohibition on racial discrimination of places of accommodation for public accommodations. (private property open to the public)
=Has to address that if its a private facility that's open to the public, it needs to be open without discrimination.
=Equal Protection Clause is only in the 14th Amendment - ( we forgot when it was written to include federal government can't discriminate on the basis of race)
=Congress tried to limit the Stat'es rules (Federalism-states can write anti-discriminatory laws)
=why can the constitution prohibit bad government action? Constitution only restricts states so congressional can only restrict bad government action not private actions. Because of the test of the 14th Amendment, an individual cannot violate 14th Amendment, only a state/gov't can.

Triggered when a private actor harms someone in such a way that a constitutional issue would arise if the harm were inflicted by a gov actor.

Private Uses: Exceptions: Performing a task that has been exclusively and traditionally performed by the government.


State Action Requirement

P must be able to argue that the private party's actions are sufficiently permeated with state action to make the Constitution applicable.
Key Question When is there enough of a connection between the private actor and the gov for the Court to treat the private actor as if s/he is the equivalent of a govt actor?
==Factors- reliance (to what extent does the private actor rely on gov assistance and benefits). function (whethere the actor is performing a traditional government function that's been engaged in exclusively by the gov.) and aggravation (whether the injury caused is aggravated in a unique way by government intervention)


Public Function Exception:

=Company towns (everything is owned by one company)
==In Marsh v. Alabama, a private company owned an entire town and posted signs prohibiting peddlers. Supreme Court ruled that although privately owned, the town was so much like a city that it was declared one. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Held to the standards of governmental entity.
== In Smith v. Allwright, the Court held that since elections were exclusively public functions, a political party could not radically discriminate against blacks by excluding them from voting in a primary election.


The Entanglement Exception ( alot of intertwined public and private actions)

=Private Conduct must comply with the constitution if the government has authorized encouraged or facilitated the unconstitutional conduct.
=Significant state involvement
==where there is "significant state involvement" in private discrimination, then the 14th amendment may be applicable.
==For ex: restaurant owner whose business was located in a building owned by the city was prohibited from discriminating against racial minority.
== Shelley v. Kramer: State court enforcement of racially restictive convenants was held ton constitute sufficient state involvement to trigger "state action:. Racially discriminatory contract but once they bring it to court to have judge sign, it becomes a violation.


Entanglement = No significant state imvovlement

=Jackson v. Metropolitan Edison: Termination of service to a customer without notice or a hearing by a utility compandy under heavy state regulation was found not to constitute "state action". when private companies only take up some characteristics of state.


Preemptory Challenge:

=Removing a member of a jury based on race
=In a civil case, requiring a State Jury (Lugar Two - Part Test pg 574)
==Can we fairly ways that private actor is taking a role as a state actor?
==Can we failry say that private actor is taking a roles as a state actor?


Substantive Due Process

Historically, courts have protected econominc liberties through property rights.
=Through Lochner era ( late 1880s -1937) began protecting economic rights under Due Process.
==Many state lawas including min wage and max working hours were declared uncon b/c it violated 14th by interfering with Ks.
==Court used federalism to narrow Congress's power to regulate economy - finding that the 10th reserved a zone of authority to the states. States couldn't adopt a mine wage b/c it violated 14th, fed would violate 5)
=After Lochner Era, Courts changed dramatically, adopting a policy of great deference to govt econ regulations-- ct no longer protected freedom of K under liberty (DP) nor did they regulate Congress's power with federalim (ct uses takings clause to protect property)


Economic Liberties

What are the economic freedoms that indivuals possess under the constitution.
1) Takings clause-government taking private land for public use to give you just compensation
2) Contracts Clause- ability to enter into and enforce a contract
3) Economic Substantive Due Process

2 due process clauses: 5th due process applies to fed govt; 14th due process applies to state


Economic Substantive Due Process

1) Procedural Due Process
=Refers to the procedures that government must follow when it takes away a person's life, liberty, or property
2)Substantive Due Process
=Asks whether the government has an adequate reason for taking away a person's life, liberty, or property. Over the years, substantive due process has been mainly used to protect economic liberties and safeguard privacy.
=Ex: parent's right to custody of children-government has to have a really compelling reason to terminate that custody.


Lochner Era (past)

Court reviews legislation and evaluates it independently of the state's legislative evaluation. Applied strict scrutiny standard (likely strikes down law every time)
Government could interfere with freedom of K only to serve a valid police purpose of protecting public safety.
Other cases that're uncon:
-Cappage: anti union law
-Adkins: state minimum wage law
-Weaver- consumer protection
-Williams : max price laws

But Muller v Oregon held as con b/c Court reasoned the physical well being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race.


End of Lochnerism

=ended in 1937 involving substantive due process and min wage
==West Coast Hotel v. Parrish /&/ Williamson v. Lee Optimal


West Coast Hotel v. Parrish (1937)

=Signals the end of economic due process
=Upheld min wage law
=Not deprivation of freedom of K; is a deprivation of liberty w/o DP
=End of Lochner's strict scrutiny
=Court doesn't do own reasoning, rely on state's.
=court won't say they know better than legislature. Just be confident its not arbitrary and is rional.
=All Modern Substantive Due Proccess follows rational basis.
==Rational Basis Test-->rationally related to legitimate governmental purpose.


Williamson v. Lee Optimal

Constitutionality of an act which makes it unlawful for any person not a licensed optometrist to fit lenses to a face expect upon written prescriptive authority of a licensed optometrist.
Rational basis minus(lower standard)- as long as there was some concievable justification. Standard is if the court can "imagine" the legitimate purpose could have found a solution for that problem then it is going to let the law go through.


US v. Carolene Products

Footnote 4=proclaims the need fore judicial deference to government economic regulations, with more aggressive judicial review for cases involving fundamental rights and discrete and insular minorities.
When we find fundamental rights within the due process clause - if we find those rights to exist then we are going to apply strict scrutiny


Fundamental Rights under Due Process and Equal Protections

Some liberties are so important that they are deemed fundamental rights, meaning that the gov cannot infringe on them unless strict scrutiny is met (law must further a compelling gov interest and must be narrowly tailored to achieve that interest)


Due Process v Equal Proctection

if Law discriminates against everyone -->DP
=Ex: SC has considred a constitutional right to refuse medical care as an aspect of the liberty protected in the Due Process Clause
=When we deny someone has a right
if law discriminates against certain group ->Equal Protection
=Ex: the right to travel has been safeguarded under equal protection or right to vote protected by EP and 15th amendment that prohibits gov racial discrimination concerning voting.
= When court says somthing else like people that have been married cannot remarry- then it creation not just interfering with right but places restriction on the right based on a class of people. It is not just a concern of interference but also of classification


Economic regulation:

In the past, the doctrine of substantive due process was frequently used to invalidate state laws that arbitrarily and unreasonably regulated economic activity. Where a state statute is reasonable, on the other hand, it is within the state's police police power to regulate economic activity. Since the New Deal, the Supreme court has not struck down an economic regulation on substantive due process grounds. Such an economic regulation will be upheld if it rationally related to a legitimate government interest.


Framework for Analyzing Fundamental Rights

Does the law in question interfere with a fundamental right that people have?
=Yes-> If there is fundamental right that is interfered with, then strict scrutiny
=No->If a fundamental right, but it doesn't really interfere then court uses rational basis. (show legitimate fundamental interest and it is rationally related to serving that interest)

Four analytical questions:
1)Is it a fundamental right?
a)define the right
==What is the right that you are claiming and can choose the right at any level of specificity. How abstract you make it (level of abstraction). Does it trace back to liberty?
b)is it "fundamental"
==different process depending on how we approach the constitution. Do we look to values of the Constitution or do we look at modern values.
2) is the right infringed?
==Yes to (1) and (2) means use Strict Scrutiny standard
==No to either (1) or (2) means use rational basis
3) Is there sufficient justification for the law?
==RB -> legitimate
==SS -> compelling
4) Are there means sufficiently related to the ends?
==RB -> rationally?
==SS -> necessary/ narrowly tailored


Rational Basis Test

To pass rational review, the challenged must be rationally related to legitimate gov interest


Strict Scrutiny Test

=to pass strict scrutiny, the legislature must have passed the law to further a "compelling gov/state interest" and must have narrowly tailored the law to achieve that interest.
=For this to apply, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification.
==suspect classifications: race, national origin, religion, alienage, poverty.


Constitutional Protection for Family autonomy

Right to marry
right to custody of one's children


Loving v. Virginia (right to marry)

=court first recognized right to marry as a fundamental right protected under the "liberty" of the DPC
=Facts: state law restricted white man and black women from marrying
= preventing marriage solely on the basis of racial classifications violates the EPC and the DPC of th 14th Amendment
=Held: statute violates EPC of 14 and deprived liberty under DPC of 14
=the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by freemen - it is one of the basic civil rights of man.


Zablocki v. Redhail (1978) (marriage)

=Facts: state law prohibts marriages w/o first obtaining a court order granting permssion. People with child suppor obligations must prove financial capability of providing for child of previous marriage.
=The court accepts that the state has legitimate interests in protecting children, but the means of achieving the interest unnecessarily impinge on the right to marry.
=State has other means to ensure child support->fails strict scrutiny
=Once we know a fundamental right was interfered with, under SS, we must ask if govt interest and how it relates to ends.


Right to Custdy of one's children

court has recongnized that parents have a fundamental right to custody of their children - parent's desire for a right to care and custody of their children in an interest more precious than any property rights.


Micheal H v. Gerald D (1989)(custody)

rule: biological link alone doesn't merit constitutional protection
Court looks at whether relationships such as wife and and an adulterous father has been treated as a protected family unity in our society - our traditions have protected the marital family- so court finds the law valid
Here, Scalia's conservative approach to answering Q1 of finding fundamental right bring the most specific level at which the relevant tradition will be protected.
Conservative approach- look back at history and tradition and also define the right in the most specific way and look how it can be indentified
Liberal approach- non traditional rights may become more fundamental in modern society.


Moore v. City of East Cleveland (1977) (right to keep family together)

=Facts: housing ordinance limits occupancy of dwelling to members of single family. Defined as blood w/in immediate family.
=City's justification: preventing overcrowding, miminizing traffic and parking congestion; and avoiding undue financial burden on East Cleveland's school system.
==Bad rationale since a person can have 10 kids that all drive and yet grandma can't have her grandson living with er.
=The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally deserving of constitutional recognition
=very particular, narrow


Meyer v. Nebraska (1923) (right of parents to control upbringing of child)

=The first SC cases recognizing family autonomy involved the rights of parents to control the upbringing of their children
=FActs: P was tried and convicted for unlawfully teaching a 10 year old to read German, could only start after 8th grad according to the law.
=Proficiency at a language seldom comes to one whoe is not instructed at an early age, and experience shows that this is not injurious to health, morals, or understanding of the ordinary child


Pierce v. Society of Sisters...(1925)(right to upbringing)

=The challenged act requires every parent or guardian of a child between 8 and 16 to send him to a public school for the period of time a public school shall be held the the current year in the district the child resides.
= Under Meyer, we think it entirely plain that the Act unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.


Constitutional protection for reproductive Autonomy

Right to procreate


Buck v. Bell (1927) (procreate)

=government imposed involuntary sterilzation must meet SS. Right to procreate is fundamental. Talks about interest in reducing the feeble minded "three generations of imbeciles are enough"


Skinner v. Oklahoma (overtunes Buck)

=criminal was ordered by state to be sterilized
=Court doesn't analyze under EPC. The problem with EP is that if Court used it, state will just make a law that it can sterilize everyone.
=Here, Court says the right to have children is fundamental right, so SS applies.


Griswold v. Connecticut (contraceptive) (1965)

=Facts: doctors of Planned Parenthood gave info/medical advice to patients about preventing contraception. State law prohibits buying or assiting to buy condoms.
=1,3,4,5,9 create a zone of privacy. This is in the shadow of specific enumerated rights.
=Strict Scrutiny applies. Forbidding use of contraceptives rather than regulating manner of sale seeks to have a descuctive impact of the zone of privacy.
=Douglas concurrence says that the 9th provides protection. Doesn't need the prenubras (shadows).


Eisnstadt v. Baird (1972)(contraceptive)

=Law made it a crime to give contraceptives to unmarried people.
=Court uses rational basis test since it discriminates between married and unmarried people.
= EP protects, since right is already there.


Right to abortion

Abortions are about moral arguments, there is not a historical prohibition


Roe v. WAde (1973)

=State, at some point is able to act on the interests of the helath of the mother and the potential human life of the unborn.
=Trimester scale for interest. Interest compelling for the women to abortion before the 2nd trimester. State can write learns concerning abortion in 2nd trimesters pertaining to the interest of the woman. 3rd trimester where state has compelling interest in the fetal life. they can ban abortions after the 2nd trimester


Planned parent hood v. Casey (1992) (abortion)

=Confirms state interest/power to restrict abortions after fetal viability
=Still a fundamental right to terminate pregnancy pre-viability because they are reaffirming the essential holding.
==Takes away the trimester framework.
==No longer uses strict scrutiny
==Fundamental rights analysis is abandoned.
=Viability is not an uncertain thing.
=STANDARD used: Undue Burden Test- Substantial obstacle for a woman in this period. (excessive, inappropriate burden)
==allows the state more regulation because states can go so far as to prohibt with all the measures in place.
=HELD, DP of the fourth protects personal liberty.
=Regulations with the purpose/effect of placing a substantial obstacle in the parth of a women aborting are invlaid. Regulations designed to foster the health of the women are valid if burden isn't undue.


Steinberg v. Carhart (2000) (govt regs on abortion)

=Invalidated a state law prohibiting partial birth abortion b/c it lacked a health exception for the woman and b/c it would lead to prohibiting other forms of abortion.
=State law- partial birth abortion law.
=Court says laws fails test. procedures were described vaguely and, it likely would prevent docs from doing the accepted procedure.


Gonzales v. Carhart (2007) (govt & abortion)

=Fed statute prohibiting partial birth abortions
=Court says act isn't invalid on its face, nor does it impose undue burden.
=Justifications for such a law;
==Support respect for medical profession
==moral concern for fetus life
==State encourages latest rounds of limitations
=Laws Requiring waiting periods:
==considered invalid under Strict Scrutiny
=Informed Consent requirements:
==Court uphold statutes after CAsey
==Before Casey, would be invalid.


Maher v. Roe (1977)

=Court upheld the ability of the govt to deny funding for "non-therapeutic abortions" i.e abortions not performed to protect the life or health of the mother.


Spousal Consent and Notice Requirements

=The Supreme Court has held that the govt cannot require either spousal consent or spousal notification as a prereq for a married woman's abortion
=Allows consent and notification for minors only for judicial bypass procedures.


Planned parenthood v Danforth (1976) (consent & notice)

=Missouri law required the prior written consent of the spouse of the woman seeking an abortion during first 12 weeks.
=Held, state cannot regulate or proscribe abortion during the first stage. State can't delegate authority any person, once woman and doctor make decision.


Planned Parenthood v. Casey (1992)

=court invalidated a spousal consent req
=Struck down using undue burden under DP and EP.
=wife's interest in freedom from gov intrusion outweighs the husband's interest in the pregnancy.


Right to refuse treatment

=Individuals generally have constitutional right to refuse treatment, not having something forcibly done to them, but this right is not absolute.


Cruzan v. Director, Missouri Dept of Health (1999) (medicare care decisions)

=State law requires clear and convincing evidence of patients prior intent to be taken off life support. There is no right to die.
=Court held, a state's interest in the lives of its citizens is highly compelling- so state is free to adopt procedures designed to ensure that prior to cessation of life support, that there is a clear and convincing evidentiary hearing to terminate treatment.
=Court never identifies level of scrutiny, but its not SS
= 8 justices say there is a right to refuse treatment.


Washington v. Glucksberg (1997) (physician assisted suicide)

=State law prohibits physician assisted suicide
=Court found no fundamental liberty interest in DPC. There is a long standing commitment to the protection and preservation of human life. PSA is inconsisten with dr's role as a healer.
= No right for a default surrogate.
=right to end one's own life


Bowyers v. Hardwick (constitutional protection for sexual orientation)

= Made sodomony illegal for heterosexual and homosexual people.


Lawrence v. Texas (2003)

=Overtuns Hardwick, which was an originalist's interpretation.
=Held that right to privacy protects a right to engage in private consensual homosexual activity - DPC of the 14th analysis
=DPC analysis for fundamental rights requires SS yet the court seems to apply RB to a fundamental right.
=consenual intimate sexual relationships between consenting adults. and its protected by 14th.
=Bowers reversed because of Casey. Casey brought back substantive due process.