The Fundamental Right to "Liberty"
rs at robertsheridan.com
Sun Mar 22 21:47:02 PDT 2009
Perhaps the answer to the question why liberty in general doesn't
trigger strict scrutiny is that we dole it out sparingly, considering
that one man (or woman)'s liberty is another man (or woman)'s poison.
Conlaw is easy... once you get past thinking about it too deeply.
On Mar 22, 2009, at 10:15 AM, Miguel Schor wrote:
> A fascinating and frankly grossly understudied empirical issue that
> underpins Bobby's question has to do with the emergence of balancing
> tests, not just in the United States but also abroad. The United
> States Supreme Court first began to explicitly rely on balancing
> tests in the 30s and 40s as a response to the criticism levied at
> the Court for its reading of the Fourteenth Amendment during the
> Lochner era. Balancing tests emerged abroad as well when courts
> began to expand their protection of rights. Most notably this
> occurred in Colombia with its 1991 Constitution (the reason why this
> is notable is that national high courts in the region have
> historically done a poor job of articulating and defending rights).
> A similar transformation occurred in Canada with the advent of the
> Charter in 1982 (which is when rights were constitutionalized in
> Canada). Probably the most important piece to the puzzle of the
> spread of balancing (or ! pr! ! oportionality) tests around the
> globe was its adoption by the German Constitutional Court. The
> German Constitutional Court is arguably more influential around the
> world than is the United States Supreme Court. The point is that
> balancing tests and a vigorous judicial defense of rights are linked
> empirically even if some on this list might disagree normatively
> with this linkage. For anyone who might be interested, I wrote an
> article that deals with this issue that can be downloaded from SSRN,
> An Essay on the Emergence of Constitutional Courts: The Case of
> Mexico and Colombia.
> Miguel Schor
> Associate Professor of Law
> Suffolk University Law School
> 120 Tremont St.
> Boston, MA 02108
> SSRN Webpage http://ssrn.com/author=469730
> ---- Original message ----
> Date: Sun, 22 Mar 2009 12:26:15 EDT
> From: RJLipkin at aol.com
> Subject: The Fundamental Right to "Liberty"
> To: CONLAWPROF at lists.ucla.edu
> A student in
> my conlaw I class asked the following question: If marital privacy
> is a
> fundamental right triggering strict scrutiny, why doesn't the
> Amendment's "liberty" clause also trigger strict scrutiny. After
> all, liberty in
> general is more fundamental than the freedom to use contraception. I
> attempted a few answers--mostly involving the distinction between
> scrutiny and rational basis scrutiny--but he was satisfied with
> none. He's a
> pretty good student and so I wonder whether my explanations were
> Does anyone have an obvious explanation of why we treat "liberty"
> than, say, the right to procreation. I'm sure I must be overlooking
> something obvious and would welcome illumination. Off-line
> responses are
> fine. Thanks in advance
> Robert Justin
> Distinguished Professor of Law
> Widener University School of
> Ratio Juris,
> Essentially Contested
> America, Editor-In-Chief http://www.essentiallycontestedamerica.org/
> A Good Credit Score is 700 or Above. See yours in just 2 easy steps!
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