How to argue a right should be fundamental? Forum

[Charles Barkley]

Help? Any advice would be appreciated.

[patrickd139]

Some thoughts, in order of relative strength of argument.

1) It's in the text of the Constitution. (Think First Amendment.)
2) It's rooted in historical caselaw dating back to (or pre-dating) the Constitution. (Think privacy)
3) It's so woven into the fabric of society that it should not be tampered with. (think Miranda warnings, see Dickerson)

[beardown_tho]

best way is to just assume it's fundamental and go from there

edit: do not take this seriously

[Charles Barkley]

Thanks for the advice. Any other tips would be appreciated. I've read the substantive due process cases in my casebook, but I feel as though reading a court doing it and knowing how to do it yourself are two completely different things.

[vanwinkle]

Analogy. Point out how much it's like existing rights that are considered "fundamental". Point to the reasons given in those cases for finding those rights "fundamental" and say those things apply just as much to the right you're arguing about.

[Charles Barkley]

Analogy. Point out how much it's like existing rights that are considered "fundamental". Point to the reasons given in those cases for finding those rights "fundamental" and say those things apply just as much to the right you're arguing about.

Excellent.

[lawloser22]

Analogy. Point out how much it's like existing rights that are considered "fundamental". Point to the reasons given in those cases for finding those rights "fundamental" and say those things apply just as much to the right you're arguing about.

Excellent.

Based off Griswold:
(1) 9th Amendment; infer rights not in BoR (2) pernumbria, compare to othr rights (3) DP “liberty” (4) Deep-rooted tradition

construe 'liberty' broadly.

Ex. privacy, autonomy, relationships, employment, etc

[zanda]

Analogy. Point out how much it's like existing rights that are considered "fundamental". Point to the reasons given in those cases for finding those rights "fundamental" and say those things apply just as much to the right you're arguing about.

Excellent.

Based off Griswold:
(1) 9th Amendment; infer rights not in BoR (2) pernumbria, compare to othr rights (3) DP “liberty” (4) Deep-rooted tradition

construe 'liberty' broadly.

Ex. privacy, autonomy, relationships, employment, etc

Court moved away from the penumbra approach in Roe.

Use the Glucksberg factors.

[patrickd139]

Court moved away from the penumbra approach in Roe.

Use the Glucksberg factors.

With sentences like these, it's no wonder people cringe at lawyers/law students.

[d34d9823]

Court moved away from the penumbra approach in Roe.

Use the Glucksberg factors.

With sentences like these, it's no wonder people cringe at lawyers/law students.

This is an informal discussion, not an outlet for your pedantry. I have no clue whether he's correct or not, but nonsense like this just detracts from the discussion.

[ak362]

Con Law is a bit hazy for me, since it was last year, but if it's not a substantive right that the Court has touched on, I just borrowed from the "so rooted in the tradition and conscience of our people as to be ranked as fundamental" language from Powell v. Alabama, then the "implicit in the concept of ordered liberty" business. (I think also from Powell? Not sure, just ripping this off from my outline from last year.) Then there's the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" language from Palko v. Connecticut.

Anyways, these are all summarized in Washington v. Glucksberg, as some other poster has noted. It's vague, but there's a balance struck between the specificity of the right contended, and whether liberty or justice would really be compromised if said right was deprived.

[soaponarope]

My Professor prefer we use these steps:

1st step: Define the right (broadly or narrowly).
-example: Lawrence v. Texas. Do you have a fundamental right to engage in sodomy? or Do you have a fundamental right to privacy in your own home. Depending on how you define the issue will determine whether or not the right is fundamental. The more broadly you define the right, the more likely it will be fundamental.

2nd Step: Is there a significant infringement on that fundamental right?
-if the law in question is incidental and does not seriously infringe on your rights then it is likely that you will not have a claim.

3rd Step: Is the right in question embraced by history and traditions (right to a family, privacy, travel, etc...)
Is the right enumerated in the 1st 8 amendments?
Is there an emerging awareness (in regards to gays, retarded children-they may get a heightened rational basis).

4th step: Apply the relevant test: 1) strict scrutiny 2) rational basis

Then, if applicable, procedural due process...privileges and immunities clause.

That is how my Conlaw class is supposed to analyze substantive due process/fundamental rights. A different analysis is used for equal protection.

[Cupidity]

Implicit in the concept of ordered liberty or part of this nations history and tradition. Glucksberg

[Cupidity]

My Professor prefer we use these steps:

1st step: Define the right (broadly or narrowly).
-example: Lawrence v. Texas. Do you have a fundamental right to engage in sodomy? or Do you have a fundamental right to privacy in your own home. Depending on how you define the issue will determine whether or not the right is fundamental. The more broadly you define the right, the more likely it will be fundamental.

2nd Step: Is there a significant infringement on that fundamental right?
-if the law in question is incidental and does not seriously infringe on your rights then it is likely that you will not have a claim.

3rd Step: Is the right in question embraced by history and traditions (right to a family, privacy, travel, etc...)
Is the right enumerated in the 1st 8 amendments?
Is there an emerging awareness (in regards to gays, retarded children-they may get a heightened rational basis).

4th step: Apply the relevant test: 1) strict scrutiny 2) rational basis

Then, if applicable, procedural due process...privileges and immunities clause.

That is how my Conlaw class is supposed to analyze substantive due process/fundamental rights. A different analysis is used for equal protection.

This is excellent and was just copied into my outline.

[soaponarope]

Implicit in the concept of ordered liberty or part of this nations history and tradition. Glucksberg

Careful, that rule/case law only begs the question. Minorities are certainly not protected by history and tradition. Homosexuals are not protected by history or tradition. The issue of what is a fundamental right hinges on how you define the right.

Do you have a fundamental right to raise a family. Absolutely.
But, does a man that rapes a woman and has a illegitimate child have a fundamental right to have custody of the child and raise a family? No.

How you define the right will determine whether or not you get to strict scrutiny. The best illustration is Bowers v. Hardwick and Lawrence v. Texas.

[pasteurizedmilk]

There's so many different methods - you should really know the one your prof. is looking for. Try to figure that out before you use any from a TLS random.

[savagedm]

You should also look into the case of State v Gunwall, 106 Wash.2d 54. It sets out a test that, at least with the WA state courts, that:

In determining whether State Constitution should be considered as extending broader rights to its citizens than does United States Constitution, court should consider the textual language of the State Constitution, significant differences in the texts of parallel provisions of the Federal and State constitutions, state constitutional and common-law history, preexisting state law, differences in structure between Federal and State Constitutions, and matters of particular state interest or local concern.

However, like the text says, this is only referencing extending state constitutional rights. However, the method they use in extending a right beyond the US Constitution will probably give you some insight on how to tackle your particular problem.

Hope this helps!

[placencia]

This is what I use:

Fundamental rights are those which are objectively deeply rooted in this Nation's history and tradition (or so rooted in the traditions and conscience of our people as to be ranked as fundamental) and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.

[moandersen]

This is what I use:

Fundamental rights are those which are objectively deeply rooted in this Nation's history and tradition (or so rooted in the traditions and conscience of our people as to be ranked as fundamental) and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.

This is what is stumping me a little bit. Anyone care to expand on 'ordered liberty' and how a fundamental right can be found through those words?

[PirateCap'n]

This is what I use:

Fundamental rights are those which are objectively deeply rooted in this Nation's history and tradition (or so rooted in the traditions and conscience of our people as to be ranked as fundamental) and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.

This is what is stumping me a little bit. Anyone care to expand on 'ordered liberty' and how a fundamental right can be found through those words?

I'm not sure which prof you have, but here's how ours explained it to us. Originally, to determine if it was fundamental, you would use the "imagination" test (from Palko I think): if you can imagine a civilized society anywhere in the world with a functioning justice system that doesn't recognize the right, it isn't a fundamental right. However, more recently, that was limited to the United States judicial system in Duncan. That is, if you can imagine a justice system in the US (I guess a state system or local system) that wouldn't recognize the right and would still function fine without it, it wouldn't be fundamental.

I'm just repeating what's in my notes, so, if it's wrong, that's what he told us.

[moandersen]

I'm not sure which prof you have, but here's how ours explained it to us. Originally, to determine if it was fundamental, you would use the "imagination" test (from Palko I think): if you can imagine a civilized society anywhere in the world with a functioning justice system that doesn't recognize the right, it isn't a fundamental right. However, more recently, that was limited to the United States judicial system in Duncan. That is, if you can imagine a justice system in the US (I guess a state system or local system) that wouldn't recognize the right and would still function fine without it, it wouldn't be fundamental.

I'm just repeating what's in my notes, so, if it's wrong, that's what he told us.

We were told nothing about "imagination." It was more about finding fundamental rights through enumeration in the Bill of Right, tradition/history, and the concept of ordered liberty.

[PirateCap'n]

I'm not sure which prof you have, but here's how ours explained it to us. Originally, to determine if it was fundamental, you would use the "imagination" test (from Palko I think): if you can imagine a civilized society anywhere in the world with a functioning justice system that doesn't recognize the right, it isn't a fundamental right. However, more recently, that was limited to the United States judicial system in Duncan. That is, if you can imagine a justice system in the US (I guess a state system or local system) that wouldn't recognize the right and would still function fine without it, it wouldn't be fundamental.

I'm just repeating what's in my notes, so, if it's wrong, that's what he told us.

We were told nothing about "imagination." It was more about finding fundamental rights through enumeration in the Bill of Right, tradition/history, and the concept of ordered liberty.

Yeah. The "imagination" test goes to the "concept of ordered liberty" part. You look to the Bill of Rights. If it's there, it's fundamental. Tradition and history -- usually it will be fundamental. Then, for the concept of ordered liberty, you use the imagination test. If you can imagine a system without it in the US, it's not fundamental to the concept of ordered liberty, etc. That's how I understand it at least. We do have different professors though, so I'm sure that could be part of it.

[placencia]

It's not really that hard when you factor in San Antonio v. Rodriguez which says that there are no new fundamental rights. Effectively, the door is closed. So all you need to do is pick up your Chemerinksy and flip through and look at all of the fundamental rights which have been recognized so far (marriage, voting, procreation, travel, etc.) and then look at how each of those is essential to our way of life.

You don't really have to make any new arguments about rights that aren't currently recognized, because the Court has pretty much said enough is enough. So the only way you could possibly get anything that hasn't already been examined to be classified as somehow fundamental is if you examined it in terms of other rights which are already recognized. For example, if you reclassified the right of parents of illegitimates (from Michael H. v. Gerald D.) as simply a custodial right, which has been recognized as fundamental.

So the short version is that the American way and mom and apple pie don't really exist without the right to raise your children, so it's fundamental.

Don't tie yourself up in knots too much looking for an analysis of potential fundamental rights, just look at the way that the already established rights fit into our system and that is how you analyze it.