CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #24

2. Protection of Personal Liberties

A. Introduction

GRISWOLD V. CONNECTICUT, p. 584 (1965)

• What regulation, with what purpose?
• Who is challenging the regulation? Do the challengers have standing?
• have they been injured by the challenged regulation?
• are they intended beneficiaries of the constitutional provision they invoke?
• if not, on what basis are they allowed to proceed?
• What constitutional right is asserted against the regulation?
• Is it an enumerated right? If not, how does the Court determine that it exists?
• what provision of the constitution is invoked as directly protecting this right?
• what role does the 9th Amendment play in the Court's analysis (Goldberg)?
• contrast the approaches of Douglas and Harlan (relevant portion of his opinion set forth below), who agree on result
• is Douglas's "interpretive" (i.e., text-based)?
• is Harlan's "non-interpretive" (i.e. based on extra-textual values)?
• What standard of review is applied?
• Is this decision consistent with those which in effect overruled Lochner?

B. Family and Marital Relationships

MOORE V. CITY OF EAST CLEVELAND, p. 590 (1977).

• what action is being challenged, and what is its purpose?
• what standard of review is applied by the majority?
• does this decision follow from Griswold? from Meyers and Pierce?
• if the city's concern is legitimate, how could it approach the problem after this case?

MICHAEL H. V. GERALD D., p. 603 (1989).

• what state law is being challenged, and what is its purpose?
• who is challenging the law?
• what standard of review does the Court apply?
• why is the challenge unsuccessful?
• because no fundamental right is involved? if not, how is the case different from Griswold and Moore?
• because the wrong people are challenging it? is that the same kind of objection?

Harlan, J., in a portion of his opinion in Griswold not quoted in the casebook:

"In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty'***. For reasons stated at length in my dissenting opinion in Poe v. Ullman, [handout for assignment #6] I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.. ***

"Judicial self-restraint will not, I suggest, be brought about in the 'due process' area by the historically unfounded incorporation formula long advanced by my Brother BLACK, and now in part espoused by my Brother STEWART. It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. *** Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause."