Thinking Constitutional Law

Posted: October 1, 2009 in Justice

I love it when I hear someone chime in on a controversial issue and declare something is “unconstitutional.” I’m learning at the feet of a brilliant law professor that constitutionality is not so easy to determine.

We’re spending a lot of time in the Fourteenth Amendment this semester, learning in particular the ins and outs of “substantive due process.” We get to discuss fun things like abortion, homosexuality, and assisted suicide. Admittedly, class is captivating.

I’m not smart enough to pull it all together just yet, but it is fun trying to assemble the pieces.

I do know that the Fourteenth Amendment declares that California cannot take away my liberty without due process of law. So if you’re paying attention , boys and girls, California “can” take away my liberty – no constitutional right is absolute – but they must afford me due process of law.

Whatever that means.

Well, part of what that has meant historically is that California must have a good reason to take away my liberty and that this good reason must relate its responsibility to protect the health, safety, welfare, or morals of its citizens. You can take away my liberty, but there better be a darn good reason.

So let’s play along children. Let’s say California thinks they do have a darn good reason, and I raise a stink about it. The Supreme Court of the United States has outlined a way of figuring out who wins.

#1: First, the question is whether the “liberty” that I was deprived was a “fundamental” right?

#2: If so, California is going to have to prove that they have a really, really, really important interest in removing that liberty from me and that the way they are removing it was very carefully crafted to achieve their reason.

This is way oversimplified, but that is the way my mind works. Sue me.

So what is a fundamental right? Picture something like the right to have children. California could pass a law saying it is getting too crowded out here, and no one can have more than one kid. California could argue that it has a really good reason (i.e. overcrowding), but the Supreme Court is going to say that a “fundamental” right like having children is going to win in the end. California will have to come up with a much better reason than overcrowding to go around sterilizing people.

So why am I trying to explain all this? Well, first of all because I’m trying to see if any of it makes sense to me. But more than that, I was greatly intrigued by our discussion today about a landmark 2003 case called Lawrence v. Texas. Of all the interesting stuff therein, I was particularly interested in the Court’s declaration that if the only state interest was “morality,” then that wasn’t enough to establish a legitimate state interest.

This was a monumental declaration.

I think most of my classmates thought this was terrible. I thought it was terrific.

How many of you want the government to be able to take away your freedom to do something that doesn’t hurt or endanger anyone else for no other reason than they just declare it to be immoral? I’m all for morality, but what if you have a different opinion?

Maybe I’m just crazy. I won’t argue with that.

I have my own personal opinions of what is right and what is wrong, and it is quite a lengthy list. I suspect the list of my conclusions is different than just about everyone else’s, and I for one would appreciate a government that allowed me as much leeway in that realm as possible. And I would want that for you, too.

In my estimation, that’s the Golden Rule. Maybe that’s my morals talking. But just maybe it’s an approach to liberty worth agreeing on.

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