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Kanter - The Griswold Diagrams

Kanter - The Griswold Diagrams

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Published by Aya Dela Peña

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Published by: Aya Dela Peña on Jul 02, 2012
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Stephen Kanter 
 Four decades after
Griswold v. Connecticut 
the fundamentalcontroversy regarding the exercise of judicial review by the SupremeCourt in our constitutional system remains the legitimacy of the Court’spractice of deriving individual rights that are not textually explicit, andenforcing those rights against majoritarian legislative enactment. Since1973, when
 Roe v. Wade
was decided, much scholarly, judicial andpublic attention concerning fundamental rights has naturally focused onthe abortion decisions. Unfortunately, the controversial and oftenoutcome-oriented nature of the abortion discussion has contributedmore heat than light, and obscured important threshold analyticalquestions.This Article starts from the proposition that a more interesting andfruitful approach is to take a step back from the abortion issue, andreturn to the basic underlying question of what, if any, are the properconstitutional theories, sources, and analytical methods for thederivation of individual rights by the Court in situations where thetextual paternity of the claimed rights is unclear. The objective is todevelop and propose a viable theoretical model as a critical firstcomponent of a workable and comprehensive set of analytical tools forthe Court to use in assessing claims for fundamental individual rights.The Article begins with a careful look at various analyticalapproaches for finding fundamental rights from the different opinions in
and then evaluates several other approaches that have been
Professor of Law (Dean 1986-1994), Lewis and Clark Law School, Portland, Oregon; S.B.1968, Massachusetts Institute of Technology; J.D. 1971, Yale Law School. I would like to thank my students, Nathan Carter and Blerina Kotori, for their helpful research assistance.
381 U.S. 479 (1965) (holding unconstitutional Connecticut statutes criminalizing the use of contraceptives).
410 U.S. 113 (1973) (holding unconstitutional Texas criminal anti-abortion statutes).
Justice Douglas delivered the opinion of the Court, for himself, Chief Justice Warren andJustices Brennan, Clark and Goldberg.
, 381 U.S. at 479-86. Justice Goldberg, joined by
[Vol. 28:2suggested elsewhere. The theoretical validity of each analyticalframework is considered separate from the quality of the application of that framework by its proponents. This abstraction, and a companiondiagrammatic representation of each framework,
serves to focusattention on the merits or demerits of the general frameworksthemselves. After extracting what is valid from these approaches, theArticle constructs and proposes a new composite theoretical model forthe courts to use in fundamental rights cases.The ultimate utility of the proposed model depends in part on twosignificant problems of implementation. These are: (1) the problem of identifying the proper sources of law and methods of interpretation thatcourts should use in applying the model and finding particular rights;and (2) the appropriate judicial mechanisms of enforcement—includingsensible prudential and structural limitations on such enforcement—forthose fundamental rights that legitimately are developed by courts fromappropriate source materials. These thorny implementation issues areaddressed gingerly here, and only to the extent that they help to explainthe proposed model. The primary goal is to engender debate andrefinement of the proposed model. I am hopeful that the outcome of this debate will be a workable consensus for a model that is usable bythe courts. Once this is accomplished, there will need to be a seriousand more detailed exploration of sources, methods and institutionalconsiderations in individual cases. The further devil (and hopefully thespare angel) is, as always, in these details.Part I of this Article discusses the
majority opinion. PartI.A uses the language of penumbras relied upon by Justice Douglas, anddemonstrates that there is legitimacy and vitality to this theory, eventhough it was rather vaguely and poorly explained in
. Part I.Bpresents a more workable set of alternative models for the majority’simplied rights theory. These models contribute naturally and directlytoward development of a satisfactory comprehensive approach for judicial use in finding fundamental rights.Part II considers two concurring opinions in
. Part II.Adevelops a model for the proper interpretation of the Ninth Amendmentfrom Justice Goldberg’s opinion, and explains the role of thisinterpretation in my proposed composite model at the end of the Article.Part II.B looks closely at Justice Harlan’s views, and critically analyzesthe underlying doctrine of substantive due process upon which he relied.
the Chief Justice and Justice Brennan, issued a concurring opinion.
at 486-99. Justices Harlanand White concurred only in the Court’s judgment, and each issued a separate concurringopinion.
at 499-502 and 502-07, respectively. Justice Black filed a dissenting opinion, joinedby Justice Stewart, and Justice Stewart filed a dissenting opinion, with the favor of joiningreturned by Justice Black.
at 507-27
and 527-31, respectively.
See infra
Diagrams 1-10.
625Part III focuses on the most serious criticisms of the
 fundamental rights approaches. Careful attention is given to thedissenting opinions of Justices Stewart and Black, the scholarly work of Raoul Berger and Judge Robert Bork, and the more recent criticalcomments and opinions of some justices who were not on the SupremeCourt when
was decided. These views are entitled to respect,and the model proposed at the end of the Article takes account of themand attempts to address their legitimate concerns.Part IV addresses several of the most promising approaches thatwere not considered at all by any of the justices in
. Partly forthis reason, both proponents and opponents of judicially enforceablefundamental rights have given much less attention to these approachesthan they deserve. Part IV.A justifies a robust role for a revivedFourteenth Amendment Privileges or Immunities Clause as one of several overarching principles in the proposed model. Part IV.Bsimilarly discusses the additional interrelated animating principles of Liberty, Equality and the Pursuit of Happiness.Part V draws on the partial models presented and analyzed in PartsI through IV, and constructs and proposes a new comprehensivetheoretical composite model for the courts to use in looking for andfinding fundamental individual rights that are not textually explicit.Finally, the Article concludes with a call for other scholars and thecourts to consider and debate the proposed model, suggest anyrefinements, and then accept it for use, both by the courts in decidingindividual rights cases and by scholars in critically evaluating thecourts’ work.I.
 Whenever a court sets about the task of finding and enforcing anindividual right, one of its primary concerns is to identify textualsources within the Constitution which might support the right. For avariety of reasons discussed later, the
majority opinionconfined its search to the provisions of the Bill of Rights and theirimplications. Although artificially limited in this regard, the opinionbegins the process of developing a useful theory of implied rights, asdiscussed in Part I.A below. The theory is then re-conceptualized,generalized and made more functional in Part I.B.

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