So Many Questions, So Little Time

I hate to say I fcking told you so, but I fcking told you so. https://t.co/ZhSNrEv43q

— Charles P. Pierce (@CharlesPPierce) March 21, 2022

First question: Are Tennesseans confused about whether or not they can put other Tennesseans in jail for buying/possessing birth control? Even married couples? Second question: are they confused by their Senator's confusion on this subject?

The 14th Amendment says:

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

According to Lochner:

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power. 

Where does the 14th Amendment say that in the language above? Where does the 14th Amendment say anything about contracts? Is this a “penumbral right”? Is that interpretation one of the "original intent" of the amendment?  Is the quote from Lochner a "plain reading" of the above, or an interpretation?  If it is an interpretation, does this constitute a judicial "making" of law?  Why, or why not?  Show your work.  You have two hours.

Also according to Lochner:

There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified a a health law to safeguard the public health, or the health of the individuals following that occupation.

Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.  

Is this an interpretation one of the "original intent" of the amendment?  Is this quote from Lochner a "plain reading" of the above, or an interpretation?  If it is an interpretation, does this constitute a judicial "making" of law?  Why, or why not? Is this interpretation of "liberty" part of the "original intent" of the amendment?  Why, or why not?  Is a law limiting the hours bakers may work for public health reasons a deprivation of liberty without due process?  Whose liberty, and what due process is owed to that party?  Show your work.  You have two hours. 

In Griswold v. Connecticut the Court noted these precedents for the concept of "penumbral rights":

We recently referred in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

Mapp v. Ohio established the 4th Amendment principle that evidence seized in violation of the 4th Amendment could not be admitted in court as evidence.  Breard v. Alexandria upheld a local ordinance controlling door-to-door solicitations, " It would be a misuse of the great guaranties of free speech and free press to use them to force a community to admit the solicitors of publications to the home premises of its residents." PUC v Pollak involved busses playing commercial broadcasts to the passengers. 

The radio programs do not invade rights of privacy of the passengers in violation of the Fifth Amendment. Pp. 343 U. S. 463-465. a) The Fifth Amendment does not secure to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. 

Skinner v Oklahoma was, basically, a eugenics case:

A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of "habitual criminals" -- an habitual criminal being defined therein as any person who, having been convicted two or more times, in Oklahoma or in any other State, of "felonies involving moral turpitude," is thereafter convicted and sentenced to imprisonment in Oklahoma for such a crime. Expressly excepted from the terms of the statute are certain offenses, including embezzlement. As applied to one who was convicted once of stealing chickens and twice of robbery, held that the statute violated the equal protection clause of the Fourteenth Amendment.  

Which of these cases rests on a "plain reading" of the 14th Amendment (or the 1st, 4th, or 5th, as applicable)?  Which of these cases reflects the "original purpose" of the respective amendments?  Does the 4th Amendment create a "right to privacy, no less important than any other right carefully and particularly reserved to the people"? The 4th Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches should 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.

Are there no "rights to marital privacy" as found in Griswold?  Is that what people in Tennessee are confused about? Or are they confused about whether such rights should be taken away?

Show your work.  You have two hours. 

 

cc: @jadler1969 and @OrinKerr. pic.twitter.com/GWJ4Y5HNp6

— Steve Vladeck (@steve_vladeck) March 23, 2022