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Protection for Medical Care Decisions, Sexual Activity & Orientation, Summaries of Law

University of Florida (UF)Law

Constitutional Law (Con Law) Outline for Law School. Con Law is a general requirement for all law school students. This outline specifically for Professor Wright's Con Law class at UF Levin School of Law. Section 8 includes: Protection for Medical Care Decisions, Protection for Sexual Activity and Sexual Orientation, Federalism, Federal Power, Summary

Typology: Summaries

2011/2012

Uploaded on 05/04/2012

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bg1
Con$Law$Outline$–$Professor$Wright$
$ $ us.docsity.com$
!
A. Constitutional!Protection!for!Medical!Care!Decisions!
$
A. Right!to!Refuse!Treatment$
i. There$is$a$constitutional$right$of$individuals$to$refuse$treatment,$but$it$is!not!
absolute!and!can!be!regulated!by!the!state$
Cruzan'v.'Director,'Missouri'Dept.'of'Health'(p.906;(849)(
Π
(suffered(head(injuries(and(was(
in(persistent(vegetative(state;(parents(wanted(to(end(life;(state(intervened(
ii. Competent!adults!have!a!constitutional!right!to!refuse!medical!care$
a. Only$Scalia$said$he$didn’t$want$the$judiciary$to$be$a$part$of$this$
iii. A!state!may!require!clear!and!convincing!evidence!that!a!person!wanted!
treatment!terminated!before!it!is!cut!off$
a. Heightened$evidentiary$requirements$
iv. A!state!may!prevent!family!members!from!terminating!treatment!for!
another$
a. The$right$to$end$treatment$belongs$to$each$individual,$and$a$state$may$
prevent$someone$else$from$making$the$decision$
v. Cruzan'$left$may$questions$unresolved:$
a. No(level(of(scrutiny(was(mentioned(
b. No(level(of(what(is(sufficient(to(constitute(clear(and(convincing(proof(of(a(
person’s(desire(to(terminate(treatment(
1. Most$indicate$that$oral$testimony$isn’t$enough(
c. Doesn’t(address(the(situation(where(a(competent(person(designates(a(
surrogate(or(guardian(to(make(the(decision(concerning(termination(
B. Right!to!Physician@Assisted!Suicide(
Washington'v.'Glucksberg((p.913;(851)(court(rejected(facial(challenges(to(state(laws(
prohibiting(aiding(a(suicide(and(the(claim(that(there(is(a(constitutional(right(to(physicianH
assisted(suicide(
i. Rehnquist:!A$right$is$protected$as$fundamental$under$the$D/P$clause$only!when!
supported!by!history!or!tradition(
ii. The$Washington$law$thus$could$be$upheld$based$on$rational$basis$test(
a. Court$found$the$law$served$a$legitimate$interest(
Vacco'v.'Quill((p.918;(852)(court(held(that(laws(prohibiting(physicianHassisted(suicide(do(not(
violate(the(E/P(clause$
iii. Prohibition$of$assisted$suicide$neither$discriminated$against$a$suspect$class$
(such$as$racial$minority),$nor$violated$a$fundamental$right(
a. The$law$treated$everyone!equally;$those$dying$from$refusing$treatment$≠$
those$dying$by$an$affirmative$act(
iv. The!door!is!left!open!by!Washington!and!Vacco:(
a. States$may$enact$statutes$protecting$the$right(
b. Five$justices$(in$concurrences)$left$open$the$possibility$that$laws$
prohibiting$physicianQassisted$suicide$may$be$declared$unconstitutional$as!
applied!in$specific$cases(
!
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A. Constitutional Protection for Medical Care Decisions A. Right to Refuse Treatment i. There is a constitutional right of individuals to refuse treatment, but it is not absolute and can be regulated by the state Cruzan v. Director, Missouri Dept. of Health (p.906; 849) Π suffered head injuries and was in persistent vegetative state; parents wanted to end life; state intervened ii. Competent adults have a constitutional right to refuse medical care a. Only Scalia said he didn’t want the judiciary to be a part of this iii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is cut off a. Heightened evidentiary requirements iv. A state may prevent family members from terminating treatment for another a. The right to end treatment belongs to each individual, and a state may prevent someone else from making the decision v. Cruzan left may questions unresolved: a. No level of scrutiny was mentioned b. No level of what is sufficient to constitute clear and convincing proof of a person’s desire to terminate treatment

1. Most indicate that oral testimony isn’t enough c. Doesn’t address the situation where a competent person designates a surrogate or guardian to make the decision concerning termination B. Right to Physician-­‐Assisted Suicide Washington v. Glucksberg (p.913; 851) court rejected facial challenges to state laws prohibiting aiding a suicide and the claim that there is a constitutional right to physician-­‐ assisted suicide i. Rehnquist: A right is protected as fundamental under the D/P clause only when supported by history or tradition ii. The Washington law thus could be upheld based on rational basis test a. Court found the law served a legitimate interest Vacco v. Quill (p.918; 852) court held that laws prohibiting physician-­‐assisted suicide do not violate the E/P clause iii. Prohibition of assisted suicide neither discriminated against a suspect class (such as racial minority), nor violated a fundamental right a. The law treated everyone equally ; those dying from refusing treatment ≠ those dying by an affirmative act iv. The door is left open by Washington and Vacco: a. States may enact statutes protecting the right b. Five justices (in concurrences) left open the possibility that laws prohibiting physician-­‐assisted suicide may be declared unconstitutional as applied in specific cases

(F) Constitutional Protection for Sexual Activity and Sexual Orientation A. Privacy Protects the Right to engage in private consensual homosexual activity Lawrence v. Texas (p.920; 844) court held that states may not prohibit private consensual sexual activity between consenting adults of the same sex i. Laws prohibiting consensual homosexual activity are unconstitutional ii. Lawrence is a powerful affirmation of a right to privacy under the Const. iii. Recognizes that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection a. Scalia says the court’s decision put in jeopardy laws prohibiting adultery and masturbation iv. Most important decision to date recognizing the rights of gays and lesbians to equal dignity and equal treatment under the constitution B. The level of scrutiny wasn’t articulated; nor has it been deemed a fundamental right FEDERALISM AND FEDERAL POWER GENERALLY I. CONCEPT OF FEDERALISM A. FEDERAL POWERS —fed gov’t is one of limited, enumerated powers. The 3 branches may only assert those powers specifically granted to them by the Const.

  1. But there is no general federal police power , i.e., no right of the federal government to regulate for the health, safety or general welfare of the citizenry. Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers. No independent federal power to provide for the general welfare.
  2. In considering the federal legislative power, there are four major questions to consider: a) What is the scope of congressional authority? (look to McCulloch v. Maryland ) b) What is Congress’s authority under specific constitutional provisions? c) Does state sovereignty limit congressional power? d) What limits, if any, exist on Congress’s ability to delegate legislative power? B. NECESSARY AND PROPER CLAUSE —Congress has the power to make all laws “necessary and proper” for carrying out its enumerated powers. So if Congress is seeking an objective that falls w/n specifically enumerated powers, may use any means that is rationally related to the objective and not specifically forbidden by the const.
  1. Never gets into argument as to why a bank is necessary, but says it is rationally related to Congress’ powers.
  2. ARGUMENT : “It is a Constitution we are expounding” Saying that the Constitution is meant to be an outline; must be expansive; change with the times. Other side would say that since it is a written Constitution, it must be narrowly interpreted and restrictive in nature. Keeps it power that way; not as flexible.
  3. Interpretative Strategies: Does Congress have the power to create a bank? Yes. Implied. a) Needs of different branches— Relationship btwn branches of gov’t; a structural argument. i. Example: enumerated powers imply means of execution. Otherwise, the Constitution would become a legal code, discussing all the minute detais. Example of creating of mail, its distribution, and power to punish violators. Different branches need different things; flexibility is required; adapt to the changing times; learn from experience. b) Historical Practice/experience —justifies the constitutionality of a practice. “We’ve been doing it for a long time” c) The power of Congress comes from the People, not from the States. People ratified the Constitution, thus the people are sovereign, not the states d) Plain meaning —Plain meaning of Constitutional language. Constitutional isn’t dispositive as to the implied power to create a bank. There are implied rights-­‐no exclusion of incidental rights. Example: necessary and proper. i. This provision, according to Marshall, made it clear that Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” ii. Necessary here means useful or desirable, not indispensible or essential (so it is not the most restrictive interpretation) iii. What means are ok is subject to a lot of controversy. Expands or limits federal gov’t depending on how that is interpreted. e) Comparison of same/similar terms —Comparison of other parts of Constitution for same/similar terms: “necessary” v. “absolutely necessary” i. If the Framers intended a narrow interpretation of the word “necessary,” they knew how to do it because in different parts of the Constitution they used the word “absolutely” to impose limitations. f) Placement in Constitution —Placement of the phrase/term. Example: “Necessary and Proper” clause is placed in Article I Section 8 that gives powers to Congress, and not in Section 9, which limits them.
  1. Since the creation of the bank was w/n Congress’ power, MD’s tax on it was unconstitutional. a) Taxing power is concurrent – both federal and state governments have the right to tax. Not exclusive. b) However, state does not have the power to tax all US citizens? 1. Essentially a state tax on those in other states. Those who were being taxed therefore were not politically represented in the state imposing the tax, and the tax was thus illegitimate. 2. The power to tax involves the power to destroy and that the power to destroy may defeat and render useless the power to create. Such exactions could greatly impeded its operation and potentially even tax it out of existence
  2. Holding Establishes Several Crucial Aspects of Constitutional Law: i. Rejects “compact federalism,” and declares that federal government is supreme over the states and that the states have no authority to negate federal actions. ii. Court expansively defines the scope of Congress’s powers. iii. Court limits the ability of states to interfere with federal activities iv. After McCulloch, Courts will not strike down a congressional action so long as Congress has employed a means which is not prohibited by the Const. and which is rationally related to objectives that are themselves w/n enumerated powers 1. Early 20th^ century deviation: during late 19th^ and early 20th, Court adhered to the view that certain areas were, as a constitutional matter, left to state regulation. Relied principally on the 10th^ and generally involved ISC. (until about 1937). Moving more towards this again now.