Child vs. State: Children and the Law: 3 (Controversies in Constitutional Law)

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Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high. The future of privacy protection remains an open question.

The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy. Bill of Rights and 14th Amendment Provisions Relating to the Right of Privacy Amendment I Privacy of Beliefs Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment III Privacy of the Home No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV Privacy of the Person and Possessions The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Assuming that there exists a general right of privacy, what sort of conduct to you think lies at its very center? What sort of conduct lies at its periphery? What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy? Is there a stronger basis in the Constitution for protecting personal privacy rights as opposed to personal economic rights, such as the liberty of contract recognized in Lochner v New York?

When the state burdens an important privacy right, what sort of justification should the state have to make to sustain its regulation? What arguments would be likely to convince the U.

The Court also noted that the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal. Wright, supra at 65— Taxpayers were found to have standing, however, in Flast v. It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Obscenity, including obscene depictions of children, either virtual or real, is unprotected speech. Archived from the original PDF on

Supreme Court unlike the Alaska Supreme Court that the Constitution protects the right to possess obscene materials but not marijuana or other drugs? Some state constitutions provide express protection for privacy. Would you favor including such a provision in your state's constitution?

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What wording would you suggest for a constitutional amendment protecting privacy? The Constitution has been interpreted to protect the right to marry, as well as the right to live a homosexual lifestyle. Should it also be interpreted to protect the right of homosexuals to marry? Are a person's choices with respect to personal appearance protected by the Constitution? Should the Constitution protect the right of students or police officers to wear their hair in any style they see fit? Why or why not? Would a tax on beards, such as the one adopted by Peter the Great, be constitutional?

The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be?

The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. Beyond these historical anomalies, the Court has indicated that, for parties lacking an individualized injury to seek judicial relief on behalf of an absent third party, there generally must be some sort of agency relationship between the litigant and the injured party.

Perry , the Court considered the question of whether the official proponents of Proposition 8, a state measure that amended the California Constitution to define marriage as a union between a man and a woman, had standing to defend the constitutionality of the provision on appeal. After rejecting the argument that the proponents of Proposition 8 had a particularized injury in their own right, the Court considered the argument that the plaintiffs were formally authorized through some sort of official act to litigate on behalf of the State of California.

Although the proponents were authorized by California law to argue in defense of the proposition, the Court found that this authorization, by itself, was insufficient to create standing. The Court expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still acting as private individuals, not as state officials or as agents that were controlled by the state. In a number of cases, particularly where a plaintiff seeks prospective relief, such as an injunction or declaratory relief, the Supreme Court has strictly construed the nature of the injury-in-fact necessary to obtain such judicial remedy.

First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking relief cannot articulate a concrete harm. More recently, in Clapper v. Of increasing importance are causation and redressability, the second and third elements of standing, recently developed and held to be of constitutional requisite. The Court found the association had standing, because certain prior cases under the Equal Protection Clause established a relevant proposition.

Standing to Assert the Rights of Others. Ullman , an early round in the attack on a state anti-contraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held that he had no standing; no right of his was infringed, and he could not represent the interests of his patients. There are several exceptions to the general rule, however, that make generalization misleading. Many cases allow standing to third parties who demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights.

Thus, in Barrows v. Jackson , a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions.

Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible.

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality.

Legal challenges based upon the allocation of governmental authority under the Constitution, e. The prohibition on litigating the injuries of others, however, does not appear to bar individuals from bringing these suits. For instance, injured private parties routinely bring separation-of-powers challenges, even though one could argue that the injury in question is actually upon the authority of the affected branch of government.

Then, in Bond v. United States , the Court considered whether a criminal defendant could raise federalism arguments based on state prerogatives under the Tenth Amendment. Standing of States to Represent Their Citizens.

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Standing of Members of Congress. Circuit, developed a body of law governing the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch. The leading decision is Kennedy v. Sampson , in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v.

First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which they were personally entitled. If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead.

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving at least a truncated version of Coleman v. Miller , in which the Court had found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as a result of a tie-breaker by the lieutenant governor. Although there are several possible explanations for the result in that case, the Court in Raines chose to fasten on a particularly narrow point.

Standing to Challenge Lawfulness of Governmental Action. An injury-in-fact was insufficient. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it; or it could be a right created by the Constitution or a statute.

In , however, the Court promulgated a two-pronged standing test: Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits, but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

This characterization is not the view of the present Court; see Allen v. In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.

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Study Group, U. That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, U. Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. For the strengthening of the separation-of-powers barrier to standing, see Lujan v.

Defenders of Wildlife, U. If the plaintiff lost, he would have no recourse in the U. Supreme Court, because of his lack of standing, Tileston v. Board of Education, U. See also United States v. Ex parte Levitt, U. Environmental Protection Agency, U. Freedom from Religion Foundation, Inc. Richardson in its generalized grievance constriction does not apply when Congress confers standing on litigants. The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc. This decision does not affect Establishment Clause cases in which the plaintiff can allege a personal injury. Elkhart County, F.

In Van Orden v. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building. Justices Scalia and Thomas concurred in the judgment but would have overruled Flast. See also Illinois ex rel.

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See also Richardson v. Joint Anti-Fascist Refugee Committee v. But see Frost v. Wright, supra at 65— The Court sometimes uses other language to characterize this test. Thus, in Lujan v. United States House of Representatives, U. National Wildlife Federation, U. Carolina Environmental Study Group, U. Earth Island Institute, S. On the other hand, where a party has successfully established a legal right, a threat to the enforcement of that legal right gives rise to a separate legal injury.

Village of Bellwood, U. But the Court has refused to credit general allegations of injury untied to specific governmental actions. SCRAP in particular is disfavored as too broad. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted.

In Duke Power , U. See also Metropolitan Washington Airports Auth. Citizens for the Abatement of Aircraft Noise, U. United States ex rel. After the federal district court held the proposition unconstitutional, the government officials elected not to appeal, so the proponents did.

The Court also noted that the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal.

Child vs. State: Children and the Law (Controversies in Constitutional Law) ( Volume 3) [Janet W. Steverson] on *FREE* shipping on qualifying . and that the state may continue to create laws that will help parents and . name; (3) children's constitutional rights are rights-in-trust, that is, rights citement to riot, or solicitation to crime.2 But a child in school has controversial.m. However .

A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. In Amnesty International , defense attorneys, human rights organizations, and others challenged prospective, covert surveillance of the communications of certain foreign nationals abroad as authorized by the FISA Amendments Act of Moreover, the Court rejected that the plaintiffs could demonstrate an injury-in-fact as a result of costs that they had incurred to guard against a reasonable fear of future harm such as, travel expenses to conduct in person conversations abroad in lieu of conducting less costly electronic communications that might be more susceptible to surveillance because those costs were the result of an injury that was not certainly impending.

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