HUMAN RIGHTS AND THE AMERICAN CONSTITUTION

Transcription

1 HUMAN RIGHTS AND THE AMERICAN CONSTITUTION PROFESSOR DELAINE R. SWENSON RIGHT OF PRIVACY n KNOWN AS THE RIGHT TO BE LET ALONE. THERE ARE SOME AREAS WHERE WE DON T WANT THE GOVERNMENT INVOLVED. n WHERE IN THE CONSTITUTION DOES THIS RIGHT COME FROM? n A PENUMBRA RIGHT. A RIGHT NOT SPECIFICALLY MENTIONED BUT EMANATING FROM OTHER RIGHTS. (Griswold v. Connecticut) 1

2 RIGHT OF PRIVACY n TEST: GOVERNMENT MUST HAVE A COMPELLING INTEREST AND THE LAW MUST BE NARROWLY TAILORED IN ORDER TO INTERFERE IN THESE AREAS OF OUR LIVES. RIGHT OF PRIVACY n WHAT IS THE PURPOSE OF MARRIAGE? n WHAT IS THE PURPOSE OF SEX? n BIRTH CONTROL? (Griswold) n ADULTRY? n FORNICATION? n ABORTION (Roe v. Wade) n SODOMY? n HOMOSEXUALITY? (Bowers and Hardwick) 2

3 PROCEDURAL DUE PROCESS n 5 th and 14 th Amendments n Government cannot take a person s Life, Liberty or Property without Due Process of Law n What is Life? n What is Liberty? n What is Property? PROCEDURAL DUE PROCESS n What process is due? n Balance (1) the importance of the individual interest involved and the value of particular safeguards with (2) the governmental interest in fiscal and administrative efficiency. n The greater the interest involved, the greater the amount of process 3

4 PROCEDURAL DUE PROCESS n Almost always required: n Fair Procedures; Unbiased Decision Maker; Notice and an Opportunity to be heard n Pre or Post Termination depends Substantive Due Process n Not looking to the process, but instead looking to the substance of the law to see if it is reasonable and not arbitrary. n Closely related to Equal Protection n Where the law limits the liberty of all persons to engage in an activity, it is a substantive due process question n Where the law treats certain classes of people different it is an Equal Protection Question 4

5 Substantive Due Process n Fundamental Right: Strict Scrutiny Standard n A law will be upheld only if it is necessary to achieve a compelling governmental purpose and it is narrowly tailored to achieve that purpose. n Fundamental Rights: Travel, Privacy, Voting, All First Amendment Rights Substantive Due Process n All Other Cases: Mere Rationality Standard: n Law will be upheld if it is rationally related to any legitimate governmental interest 5

6 Equal Protection n When can the government treat different groups of individuals differently? n Suspect Classifications and Fundamental Rights n Quasi Suspect Classifications n Other Classifications Equal Protection n Suspect Classifications and Fundamental Rights: Strict Scrutiny Standard n A law will be upheld only if it is necessary to achieve a compelling governmental purpose and it is narrowly tailored to achieve that purpose. 6

7 Equal Protection n Quasi-Suspect Classifications: Intermediate scrutiny. n A law will be upheld if it is substantially related to an important governmental interest. Equal Protection n Other Classifications: Rational Basis n Law will be upheld if it is rationally related to any legitimate governmental interest 7

8 Equal Protection n How do we classify these groups? Strict, Intermediate or Other? n Race (Loving, Brown, Gratz) n Gender (Rostker, Craig) n National Origin (Korematsu) n Wealth n Education n Legitimacy n Sexual Orientation HUMAN RIGHTS AND THE AMERICAN CONSTITUTION PROFESSOR DELAINE R. SWENSON 8

9 Gun Ownership per 100 people 9

10 2 nd Amendment n The Right to Keep and Bear Arms: A well regulated militia being necessary to the security of a free state, the righ tof the people to keep and bear arms shall not be infringed. 10

11 Preamble: a well regulated militia n Historical Context: Revolutionary War. Citizens should be able to take up arms against a repressive government. n A statement of purpose. n Is it intended as a limitation on the right that follows? n Militia Only verse unlimited right. ORIGINAL INTENT n Guns for the following purposes: n Organize a milita system, n Participate in law enforcement n Deter tyrannical government n Repel Invasion n Supress insurrection n Natural right of self-defense 11

12 US v. HELLER n DC Law made it a crime to carry an unregistered firearm and prohibited the registration of handguns. n Lawfully owned firearms must be unloaded and disassembled or bound by a trigger lock. n Challenged by Heller as a violation of 2 nd Amendment Rights. US v. HELLER n The 2 nd Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. n The preamble announces a purpose but does not limit the right included. 12

13 US v. HELLER n No Right is without a limit. Ok to limit possession by the mentally ill, felons, or forbid the carrying of firearms in sensative places such as schools or government buildings, or imposing conditions or qualifications on the commercial sale of guns. Current Proposals n Background Checks n Assault Rifle Bans n Limit on the size of Clips n Ownership Registration 13

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16 The Right to Vote n 14 th, 15 th, 19 th, 24 th, 26 th Amendments n A Fundamental Right n Any Restrictions on votiing must pass the Strict Scrutiny Standard: Compelling Government Interest and Narrowly Tailored 16

17 The Right to Vote n Issues: n Residency n Poll Taxes n Property Ownership n Identification n Party Voting (Crawford) THE RIGHT TO TRAVEL n Domestic Right: Interstate Travel Right to move from state to state. n Benefit Limitations. Usually not allowed unless there is a good reason. n No International Right to Travel, but cannot be denied in an arbitrary fashion. 17

18 Right to Refuse Medical Treatment n Part of the Liberty Interest n Not a Fundamental Right n Vaccination n Forced Feeding n Euthinasia The Takings Clause n Government cannot take private property for public use without paying fair market compensation. n Public Use Rationally Related to a legitimate public purpose. n Regulations may constitute a taking. 18

19 FACT PATTERN n HOW TO ANSER A QUESTION BASED ON A FACT PATTERN QUESTION? IRAC - Building Block of Legal Analysis n Issue n Rule n Analysis n Conclusion 19

20 IRAC - ISSUE The facts of a case suggest an Issue. What are the legal problems the client wants/ needs solved? Many cases have more than one issue. IRAC - RULE The Issue is covered by a Rule of law. What legal authority applies to this case? Remember to consider all relevant sources of law. 20

21 IRAC - Analysis Compare the facts to the rule to form the analysis. How does the legal authority apply to the unique facts of your client s case? The essence of a lawyer s job. IRAC - Conclusion From the analysis you come to a Conclusion as to whether the rule applies to the facts. What is the proper outcome for your client s case? What advice will you give your client? Reach a conclusion based on the analysis. Take a stand. 21

22 FACT PATTERN n A group is created on Facebook entitled the Facebook Facist s Forum. The FFF believes that the US should become a facist state, their page displays the swastika and pictures of Hitler and features a special forum on The best ways to kill the President of the USA. The Government orders Facebook to delete the sight within 3 days or face criminal action. The government also arrests the FFF leader and charge him with a crime for threatening the life of the President. 22