CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #27

 

LAWRENCE V. TEXAS, p. 664 (2003)

·        What regulation is challenged, and on what ground?

·        Is the crime defined by the statute a “status crime”, or a “conduct crime”?  What difference does or should that make?

·        Is the case distinguishable from Bowers v. Hardwick (discussed in the opinions)?

·        Could the Court strike this law down without calling Bowers itself into question?

·        if so, on what theory?

·        Does Justice O’Connor’s opinion provide such a theory?

·        Is the case distinguishable from Romer v. Evans (discussed in the opinions)?

·        could the Court have struck this law down on the same theory as Romer?

·        If so, does Romer call the Bowers decision into question?

·        Bowers was decided after Griswold v. Connecticut and Roe v. Wade, but before Casey.

·        Does Casey implicitly overrule or modify Bowers?  If so, how?

·        Could a state now enforce a law making adultery a crime?  Does Eisenstadt v. Baird demand a negative answer?

·        What is the relevance of the British and European Court of Human Rights decisions referred to by Justice Kennedy (p. 667)?  Precedent?  Persuasive authority?

WASHINGTON V. GLUCKSBERG, p. 676 (1997).

  • What regulation is being challenged?
  • Does it affect a "fundamental right"?
    • How does this case differ from Cruzan, the withdrawal-of-life-support case discussed in the various Glucksberg opinions?
      • Does a patient have a "right to die"?
      • Was the regulation in Cruzan inconsistent with a "right to die"? How does one know when a patient who is now comatose has consciously exercised the "right to die"?
      • Is there a difference between the "right to die" and
        • the "right to commit suicide"?
        • the "right to commit suicide with another's assistance"?
        • the "right to die with dignity"?
    • How does this case differ from the right to an abortion (Roe/Casey), discussed in the various Glucksberg opinions?
  • What burden of justification does the Glucksberg regulation have to meet?
  • What interests does the regulation serve?
    • Those of the patient? What are they?
    • Those of the state? What are they?
    • Those of the medical profession? What are they?
  • How does Justice O'Connor's rationale differ from Chief Justice Rehnquist's?
    • Is there a crucial difference between a physician’s prescribing and administering potentially lethal palliatives (pain medication), and "physician-assisted suicide"?
    • How does Rehnquist's opinion impact on this difference?
  • How does Justice Souter’s rationale differ from the others?
    • does DP forbid all arbitrary or irrational governmental acts?
    • does DP forbid all unreasonable governmental acts?