lochner has two problems.
1. the court choosing any substantive argument and favoring it (the whole enterprise is illigit)
2. the court choosing economic over health (or any specific, narrow value objection)
is there a more modest critique of lochner?
meyer was convicted of teaching german to school children. if nebraska had offered a convincing justification for its necessity (the reason was "we don't want the hun language taught"), the court would have upheld the ruling. the court revered the conviction, opining that the substantive "liberty" protected by DPC included the right to acquire useful knowledge, to marry, establish a home and bring up children and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
where are they getting the info about german language from "liberty"? is this a correct asseessment of the "fundamentals"? is there any basis for omitting some of these rights once others are listed? is it the court's place to promulgate this kind of list, as this raised in the childrearing questions of meyer? should we draw a line at the "ridiculous"? what is ridiculous?
the court's standard for violation is pretty light -- if it "materially interferes with the liberty and interest of the individual"
pierce v. society of sisters.
why require children to attend public school?standardization and melting pot of education, especially after income tax is constitutionalized and formalized.
who's rights does it impose on? parents -- there's nothing in the constitution that says our children must be standardized.
skinner v. OK
OK mandated sterilization of three-time felons involving "moral perpetude"... basically felons non-white collar crime.
the court voided the law because sterilization of three-time chicken thieves but not three-time embezzles failed the strict scrutiny test.
what's the right at issue? the right to procreate. it's a big deal because it's intrinsic biologically, socially, morally, etc... most people would find this
the court emphasized that the law "involves one of the basic civil rights of man" and application of the law would have forever deprived skinner his basic liberty.
griswold v. CT
this law had been repealed in most states, but not CT. why? the politicians don't want to take on the church, in the final battle ground over contraceptives.
but oh, those yale rabblerowsers...
the right to privacy becomes an issue.
3d amendment argument -- it's not been incorporated.
but the court is not saying "lochnerism!"
stewart's dissent: this is assenine.
if you're not scared of lochner, then harlan is the justice for you!
there is substantive stuff as to DPC towards "liberty" even beyond the BOR.
how do we figure it out? how do we know that contraception is in and cannibalism is out?
harlan says that DPC is about history, tradition, striking a balance. therefore, marital contraception fits in the catergory because it
No comments:
Post a Comment