The citizenship clause's text begins, as discussed in my prior post, with the requirement of birth "in the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?
As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon , writing for the Court, Marshall discussed "a nation's jurisdiction," which he equated with national sovereign authority.
Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise "amenable to the jurisdiction" of the United States meaning governed by U. Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase "subject to the jurisdiction.
But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were "excluded from the local jurisdiction. There was another category of people described in the nineteenth century as in the United States but not subject to U. This sounds odd to modern ears because the U. But the U. Some treaties expressly referred to tribal "jurisdiction.
Jackson , : "Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes. The nineteenth-century idea of national jurisdiction was interrelated with citizenship law. Prior to the Fourteenth Amendment, citizenship law was mostly common law, and U.
A longstanding exception to jus soli citizenship was the children of diplomatic households, who were not U. A similar exception existed in theory for children of foreign armies, again arising from their exclusion from U. Trustees of Sailor's Snug Harbor And likewise, Native Americans were not treated as citizens if they were born within tribal society because, as Kent explained in the passage quoted above, they were under the jurisdiction of the tribes, not the jurisdiction of the United States.
Subsequently, in the context of recreational rather than commercial activity, the Court reached a result more deferential to state authority, holding that access to recreational big game hunting is not within the category of rights protected by the Privileges or Immunities Clause, and that consequently a state could charge outofstaters significantly more than instaters for a hunting license.
Zoning and Similar Actions. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nuisance law, so that states and their municipal subdivisions could declare that specific businesses, although not nuisances per se , were nuisances in fact and in law in particular circumstances and in particular localities.
With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but also the amenities of modern living. Governments may regulate the height of buildings, establish building setback requirements, preserve open spaces through density controls and restrictions on the numbers of houses , and preserve historic structures.
Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa. In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not been consistent.
Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street.
In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances.
Estates, Succession, Abandoned Property. Because rights of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver, however formally executed. Even after the creation of a testamentary trust, a state retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration.
For instance, the Great Depression resulted in the default of numerous mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts. The states have significant discretion to regulate abandoned property. For instance, states have several jurisdictional bases to allow for the lawful application of escheat and abandoned property laws to outofstate corporations. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give New York jurisdiction.
New Jersey , a divided Court held that due process is not violated by a state statute escheating shares of stock in a domestic corporation, including unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends held in another state.
Short , which upheld an Indiana statute that terminated interests in coal, oil, gas, or other minerals that had not been used in twenty years, and that provided for reversion to the owner of the interest out of which the mining interests had been carved. Indeed, merely filing a claim with the local recorder would preserve the interest. There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs.
There also can be no question of the authority of the state, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors or the sale of spectacles by an establishment where a physician or optometrist is not in charge. Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat, of condensed milk made from skimmed milk rather than whole milk, or of food preservatives containing boric acid.
The Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.
Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard. For instance, various measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within feet of any dwelling, require that all gas storage tanks with a capacity of more than ten gallons be buried at least three feet under ground, or prohibit washing and ironing in public laundries and wash houses within defined territorial limits from 10 p.
States exercise extensive regulation over transportation safety. Although state highways are used primarily for private purposes, they are public property, and the use of a highway for financial gain may be prohibited by the legislature or conditioned as it sees fit.
A state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers, as a valid as a means of conserving highways. In exercising its authority over its highways, a state is not limited to the raising of revenue for maintenance and reconstruction or to regulating the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load.
Thus, legislation suppressing prostitution or gambling will be upheld by the Court as within the police power of a state. Accordingly, a state statute may provide that judgment against a party to recover illegal gambling winnings may be enforced by a lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling. Similarly, a statute creating an additional remedy for enforcing liability does not, as applied to stockholders then holding stock, violate due process.
Some rules of law probably could not be changed retroactively without hardship and oppression. Assuming that statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment.
The Fourteenth Amendment does not deprive a state of the power to determine what duties may be performed by local officers, and whether they shall be appointed or popularly elected. As long as the judgment continues as an existing liability, no unconstitutional deprivation is experienced. Local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the Due Process Clause, nor may taxpayers allege any unconstitutional deprivation as a result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.
Theoretically, public moneys cannot be expended for other than public purposes. Some early cases applied this principle by invalidating taxes judged to be imposed to raise money for purely private rather than public purposes.
A tax measured by the net income of residents is an equitable method of distributing the burdens of government among those who are privileged to enjoy its benefits. The routine practice of making taxes retroactive for the entire year of the legislative session in which the tax is enacted has long been upheld, and there are also situations in which courts have upheld retroactive application to the preceding year or two.
A state also has broad tax authority over wills and inheritance. A state may apply an inheritance tax to the transmission of property by will or descent, or to the legal privilege of taking property by devise or descent, although such tax must be consistent with other due process considerations. The taxation of entities that are franchises within the jurisdiction of the governing body raises few concerns.
Thus, a city ordinance imposing annual license taxes on light and power companies does not violate the Due Process Clause merely because the city has entered the power business in competition with such companies. States have significant discretion in how to value real property for tax purposes. Thus, assessment of properties for tax purposes over real market value is allowed as merely another way of achieving an increase in the rate of property tax, and does not violate due process.
A state also has wide discretion in how to apportion real property tax burdens. Thus, a state may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, by apportioning the burden among the municipalities in which the improvements are made, or by creating or authorizing the creation of tax districts to meet sanctioned outlays.
On the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad violates due process, whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.
First, is there a sufficient relationship between the state exercising taxing power and the object of the exercise of that power? North Dakota , however, used a two-tier analysis that found sufficient contact to satisfy due process but not dormant commerce clause requirements. In Quill , the Court struck down a state statute requiring an outofstate mail order company with neither outlets nor sales representatives in the state to collect and transmit use taxes on sales to state residents, but did so based on Commerce Clause rather than due process grounds.
Real Property. Tangible Personalty. Thus, when rolling stock is permanently located and used in a business outside the boundaries of a domiciliary state, the latter has no jurisdiction to tax it.
Conversely, a nondomiciliary state, although it may not tax property belonging to a foreign corporation that has never come within its borders, may levy a tax on movables that are regularly and habitually used and employed in that state. Intangible Personalty. The Court, however, has never clearly disposed of the issue whether multiple personal property taxation of intangibles is consistent with due process. Constitutional lawyers speculated whether the Court would sustain a tax by all three jurisdictions, or by only two of them.
The following personal property taxes on intangibles have been invalidated: 1 debts evidenced by notes in safekeeping within the taxing state, but made and payable and secured by property in a second state and owned by a resident of a third state; 2 a tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land some inside the state and some outside , the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.
The Court also invalidated a property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another state and as to which the beneficiary had neither control nor possession, apart from the receipt of income therefrom.
Norfolk , is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. Virginia , where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control. Also a domiciliary state that imposes no franchise tax on a stock fire insurance corporation may assess a tax on the full amount of paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary state only a required registered office at which local claims are handled.
A property tax on the capital stock of a domestic company, however, the appraisal of which includes the value of coal mined in the taxing state but located in another state awaiting sale, deprives the corporation of its property without due process of law.
Transfer Inheritance, Estate, Gift Taxes. Kentucky , which precludes imposition of transfer taxes upon tangible which are permanently located or have an actual situs outside the state. In the case of intangibles, however, the Court has oscillated in upholding, then rejecting, and again sustaining the levy by more than one state of death taxes upon intangibles.
Until , transfer taxes upon intangibles by either the domiciliary or the situs but nondomiciliary state, were with rare exceptions approved. Thus, in Bullen v. Wisconsin , the domiciliary state of the creator of a trust was held competent to levy an inheritance tax on an outofstate trust fund consisting of stocks, bonds, and notes, as the settlor reserved the right to control disposition and to direct payment of income for life.
The Court reasoned that such reserved powers were the equivalent to a fee in the property. It took cognizance of the fact that the state in which these intangibles had their situs had also taxed the trust.
On the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary state was held insufficient to support a tax by that state on the succession to shares of stock in that corporation owned by a nonresident decedent. Silberman , in which the Court defeated collection of a transfer tax by the domiciliary state by treating coins and bank notes deposited by a decedent in a safe deposit box in another state as tangible property.
In the course of about two years following the Depression, the Court handed down a group of four decisions that placed the stamp of disapproval upon multiple transfer taxes and—by inference— other multiple taxation of intangibles. During this interval, —, multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the Due Process Clause.
The Court has expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles. In , in Curry v. But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains.
In accordance with this line of reasoning, the domicile of a decedent Tennessee and the state where a trust received securities conveyed from the decedent by will Alabama were both allowed to impose a tax on the transfer of these securities. She necessarily invoked the aid of the law of both states, and her legatees, before they can secure and enjoy the benefits of succession, must invoke the law of both. On the authority of Curry v. McCanless , the Court, in Pearson v.
McGraw , sustained the application of an Oregon transfer tax to intangibles handled by an Illinois trust company, although the property was never physically present in Oregon. Jurisdiction to tax was viewed as dependent, not on the location of the property in the state, but on the fact that the owner was a resident of Oregon.
In Graves v. Elliott , the Court upheld the power of New York, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in Colorado by a Colorado trust company and already taxed on its transfer by Colorado, which trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries.
It is a potential source of wealth and its exercise in the case of intangibles is the appropriate subject of taxation at the place of the domicile of the owner of the power. The relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation.
The costliness of multiple taxation of estates comprising intangibles can be appreciably aggravated if one or more states find that the decedent died domiciled within its borders. In such cases, contesting states may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida , the State of Texas filed an original petition in the Supreme Court against three other states who claimed to be the domicile of the decedent, noting that the portion of the estate within Texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other states.
The Supreme Court disposed of this controversy by sustaining a finding that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate was valued less than the total of the demands of the several states, so that the latter were confronted with a prospective inability to collect. Corporate Privilege Taxes. Therefore, a license tax based on the authorized capital stock of an outofstate corporation is void, even though there is a maximum fee, unless the tax is apportioned based on property interests in the taxing state.
A municipal license tax imposed on a foreign corporation for goods sold within and without the state, but manufactured in the city, is not a tax on business transactions or property outside the city and therefore does not violate the Due Process Clause.
Unless the activities that are the subject of the tax are carried on within its territorial limits, a state is not competent to impose such a privilege tax. Individual Income Taxes. Accordingly, a state may tax residents on income from rents of land located outside the state; from interest on bonds physically outside the state and secured by mortgage upon lands physically outside the state; and from a trust created and administered in another state and not directly taxable to the trustee.
Corporate Income Taxes: Foreign Corporations. Insurance Company Taxes. A state may lawfully extend a tax to a foreign insurance company that contracts with an automobile sales corporation in a third state to insure customers of the automobile sales corporation against loss of cars purchased through the automobile sales corporation, insofar as the cars go into the possession of a purchaser within the taxing state.
The tax cannot be sustained whether as laid on property, business done, or transactions carried on, within California, or as a tax on a privilege granted by that state. Notice and Hearing in Relation to Taxes. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter.
If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question, that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the tax-payer. No right of his is, therefore, invaded.
Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by law and go into the business.
There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required.
In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it. Notice and Hearing in Relation to Assessments. The officers in estimating the value act judicially; and in most of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments.
Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.
It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the state for remittance becomes final. However, when assessments based on the enjoyment of a special benefit are made by a political subdivision, a taxing board or court, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.
More specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing. Collection of Taxes. For instance, collection of an inheritance tax may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the state.
States may also use various procedures to collect taxes from prior tax years. To reach property that has escaped taxation, a state may tax estates of decedents for a period prior to death and grant proportionate deductions for all prior taxes that the personal representative can prove to have been paid. As a state may provide in advance that taxes will bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent will bear interest from the time the delinquency commenced.
Further, a state may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent. The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.
Sufficiency and Manner of Giving Notice. Whether statutorily required notice is sufficient may vary with the circumstances. Thus, where a taxpayer was not legally competent, no guardian had been appointed and town officials were aware of these facts, notice of a foreclosure was defective, even though the tax delinquency was mailed to her, published in local papers, and posted in the town post office.
Sufficiency of Remedy. The Due Process Clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment.
A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. This analysis, criticized by some for being based on extra-constitutional precepts of natural law, serves as the basis for some of the most significant constitutional holdings of our time. Were the rights being protected property rights and thus really protected by economic due process or were they individual liberties?
What standard of review needed to be applied? What were the parameters of such rights once identified? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Although many of these issues have been resolved, others remain. One of the earliest formulations of noneconomic substantive due process was the right to privacy. This development of the law was inevitable.
The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things.
Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment. In Meyer v. Nebraska , the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade.
Two years later, in Pierce v. Society of Sisters , the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Although the Supreme Court continued to define noneconomic liberty broadly in dicta , this new concept was to have little impact for decades.
Virginia , the Court held that a statute prohibiting interracial marriage denied substantive due process. In Poe v. Ullman , for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation. Yet, when the same issue returned to the Court in Griswold v.
Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom. A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.
Hardwick , the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples. Texas , the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.
More broadly, in Washington v. Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. Gerald D. Wade , the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories.
To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.
Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins.
Two valid state interests were, however, recognized. These interests are separate and distinct. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions. After Roe , various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.
Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.
In other rulings applying Roe , the Court struck down some requirements and upheld others. On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.
The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions.
Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency— was not created or exacerbated by the government.
And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.
Although the Court expressly reaffirmed Roe v. Wade in , its decision in Webster v. Reproductive Health Services signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.
The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe , but found no occasion to overrule it. Casey , the right to abortion has three parts.
And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. Regulations which do no more than create a structural mechanism by which the State. Casey did, however, overturn earlier decisions striking down informed consent and hour waiting periods. In Stenberg v. Only seven years later, however, the Supreme Court decided Gonzales v.
Carhart , which, although not formally overruling Stenberg , appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion.
In a departure from the reasoning of Stenberg , the Court held that the failure of the federal statute to provide a health exception was justified by congressional findings that such a procedure was not necessary to protect the health of a mother.
These developments have not occurred, however, as the Court has been relatively cautious in extending the right to privacy. First, it relates to protecting against disclosure of personal information to the outside world, i. For instance, the Court first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities.
After Griswold , the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.
Miller , the Court, in evaluating the right of privacy of depositors to restrict government access to cancelled checks maintained by the bank, relied on whether there was an expectation of privacy under the Fourth Amendment.
Similarly, in Fisher v. So what remains of informational privacy? A cryptic opinion in Whalen v. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication.
More than two decades after Whalen , the Court remains ambivalent about whether such a privacy right exists. In its decision in NASA v. Nelson , the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.
In Stanley v. Georgia , the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues.
In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns. Stanley , however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution.
Totally unlimited play for free will, however, is not allowed in our or any other society. Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Although Bowers has since been overruled by Lawrence v. Texas based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.
So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior.
In a line of decisions, however,. Connecticut , U. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia , U. Oklahoma , U. Baird , U. Massachusetts , U. Society of Sisters , U.
Nebraska , supra. Despite the limiting language of Roe , the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the case of Carey v. For a time, the limits of the privacy doctrine were contained by the case of Bowers v. Yet, Lawrence v. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosexual persons the right to make this choice. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. For instance, the extent to which the government may regulate the sexual activities of minors has not been established.
There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Family Relationships. In , in Obergefell v. There is also a constitutional right to live together as a family, and this right is not limited to the nuclear family.
In Troxel v. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others.
For instance, in Youngberg v. In Kansas v. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior. Still other issues await exploration.
Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician. There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.
In Cruzan v. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized. Glucksberg, that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.
The Court rejected the applicability of Cruzan and other liberty interest cases, noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.
As discussed earlier, however, the Court limited the effectiveness of that clause soon after the ratification of the 14th Amendment. See Privileges or Immunities, supra. Instead, the Due Process Clause, though selective incorporation, became the basis for the Court to recognize important substantive rights against the states. Illinois, 94 U. Ames, U. Paramount Exch. Baldridge, U. Yick Wo v. Hopkins, U. Thompson, U. See Hellenic Lines v.
Rhodetis, U. Riggs, U. Greenberg, U. Society of Sisters, U. Earlier, in Northern Securities Co. United States, U. American Press Co. Bellotti, U. See id. But see id. Reis, U. Beckham No. Judges of Court of Registration, U. Foxworth, U. Miller, U. Pawhuska Oil Co. New Jersey, U. Mayor of Baltimore, U. But see Madison School Dist. WERC, U. Hutchinson Gas Co. Barnwell Bros. The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it.
Smith v. Indiana, U. West Virginia, U. Dye, U. Kansas City, U. See also Coleman v. Ogden, 22 U. See California Reduction Co. Sanitary Works, U. Walker, U. City of Richmond, U. Chicago, U. Kirkwood, U. New York, U. Walters, U. See also Penn Central Transp. City of New York, U. Dukes, U. American Mini Theatres, U. McCarter, U.
Richmond, U. Williams, U. Sebastian, U. Geiger-Jones Co. City of Goldsboro, U. Mahon, U. Swasey, U. City of Tiburon, U. Beckwith, U. Haskell, U. New Orleans, U. Bryan, U. Mow Sun Wong, U. Guilty Pleas. Corrective Process: Appeals and Other Remedies. Rights of Prisoners.
Probation and Parole. The Problem of the Juvenile Offender. The Problem of Civil Commitment. The New Standards: Active Review. Foreign Corporations and Nonresidents. Income Taxes. Inheritance Taxes. Motor Vehicle Taxes. Property Taxes. Special Assessment. Police Power Regulation Classification. Monopolies and Unfair Trade Practices. Administrative Discretion. Social Welfare. Punishment of Crime. Brown v. Board of Education. Implementation of School Desegregation.
Northern Schools: Inter- and Intradistrict Desegregation. Termination of Court Supervision. Public Facilities. Judicial System. Public Designation. Public Accommodations. Access to the Ballot. Apportionment and Districting. Counting and Weighing of Votes. Criminal Procedure. The Criminal Sentence. Voting and Ballot Access. Access to Courts. Educational Opportunity. Section 2. Apportionment Of Representation Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
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