Although it is mentioned nowhere in the text of the Constitution, the Supreme Court has, controversially, declared that there is a “right to privacy,” and that it is a fundamental constitutional right. On what ground or grounds does the Court claim to have identified such a
right? Is the claim credible? If not, is there a credible alternative ground for the putative right? If there is no sound basis for it, should the Court reverse course, as it did, for example, with the “right to contract” announced in Lochner v. New York? If so, should the Constitution be amended to introduce a right to privacy that would provide a basis for the Court to review legislation dealing with abortion, marriage, and sexual practices? Or should we return to the older practice of leaving such matters to the democratic process to be resolved legislatively?
Discuss these questions with reference to the relevant cases and materials.
It is widely understood that the framers of the Constitution were very concerned about the protection of property rights and economic liberty. Acting on this concern, they wrote a Constitution that created limited federal power over property and economic relations, and they went further, including explicit protections and prohibitions that constrained both federal and state power in that field, in both the original Constitution and subsequent amendments. In what condition do we find those protections and prohibitions today? Has the Court adapted the
Constitution’s protections of property rights to modern circumstances in an appropriate way? Or has it inappropriately depreciated those protections, acquiescing in abuses of property rights that ought not to be permitted?
“Race can never be a legitimate factor when government makes decisions at any level, and that includes admission decisions in public universities. The use of race is immoral, racially discriminatory, and a violation of the plain meaning of equal protection found in the Fourteenth Amendment.” Do you agree or disagree? Support your position with reference to the cases and readings used in the course.
