Philosophy of Law

What do you call the type of legal reasoning that cites a previous case such as Griswold?

This type of reasoning is known as judicial precedent. In such a case, Griswold v. Connecticut served as a source for courts to base future decisions. It is referred to as stare decisis, meaning “to stand upon decisions”. They are authoritative and binding, hence, must be adhered to. While making judgment in a case, the judge must lay out all the facts of the case, depict the state laws that can be applied, and make a decision. It is the only legal reasoning (decidendi) or base for judicial decisions which bind in later courts. Any other observation the judge makes while examining a legal question suggested by a particular case before him but not coming out in a way that requires a decision is referred to as obiter dictum to mean “a saying by the way”. There may be many reasons that a judge’s decision is a certain judgment, and it cannot be assumed that reasons can be considered as ‘obiter’ on the basis that some other ‘ration’ is already given.

Get a free price quote

1st time order 15% OFF
Order for: 00.00 / 00.00

What is the fundamental constitutional right cited for the first time in Griswold? Provide a brief explanation of the ruling in this case.

The constitutional right cited for the first time in Griswold v. Connecticut is the right to privacy. The Supreme Court ruling stipulated that a state’s ban on contraceptive use was a violation of the right to marital privacy. This case was about a Connecticut law criminalizing use of birth control. Provisions of a 1879 law stipulated that “any person using any drug, instrument or medicinal article for the sake of avoiding conception shall be fined an amount not less that $50 or locked in prison for a period of time not less than sixty days”. The law further demanded that “any individual who counsels, assists, causes, abets, counsels, commands or hires another to help commit any offense may be punished or prosecuted with the same magnitude as the principle offender”. The Court in a decision of 7-2 decided that since the law violated right to marital privacy, it was not suitable for enforcement against married people. Justice William Dougals strongly contended that the specific guarantees of Bill of Rights have “penumbras” formed by “emanation derived from such guarantees that offers them opinion and life”. This statement means that the spirit of the 1st amendment, 3rd amendment, 4th amendment, 5th amendment, and 9th amendment as implemented against states by the 14th amendment leads to the creation of a general right to privacy that no one can infringe upon. Besides, the 9th amendment which stipulates that the Bill of Rights hardly exhausts all the rights, thus, permits the Court to find a basic right to marital privacy without being compelled to ground the right in a specific amendment to the Constitution. What made this case distinct is the fact that the majority agreed that apart from the right to privacy being fundamental, it was also substantive. In a 1937 case of West Coast Hotel v. Parrish, the Court denied the idea that substantive rights are protected in the constitution such as activities related to government interferences that are not stated in the Bill of Rights. In Griswold, the ruling that substantive rights are not found in non-economic areas such as the right to privacy even if they do not affect economic activities like the case of right to contract came out.

Do you think that the specific practice protected by Griswold is similar to or significantly differs from the practice that is not protected in the Bowers decision in terms of the two standards cited above and in the Oyez piece?  Explain your answer.

The specific practice protected by Griswold is similar to the one in the Bowers decision. Despite Griswold being concerned with the use of contraception in marriage and Bower with sex, the two cases are about the right to privacy. This right in US is one of the many ‘unenumerated’ rights. It means that such rights are consistent and derived from other rights enumerated in the Constitution, but hardly appearing in writing. Griswold formed a ‘zone of privacy’ in sacred marital bedrooms and was geared towards protecting right of individuals to bear children and raise families in their own way, commonly known as the ‘right to bear or beget a child.’ By creating this zone, the court never deviated because this should have already been an area that is well protected by constitution under 4th Amendment. Griswold by the common item of reproduction, Bowers is concerned with sex. Homosexual activity is considered a private and intimate affair that goes past the reach of state regulations, because of the 9th Amendment as well as the Due Process Clause of the 14the Amendment. It is a basic right that necessitates a compelling interest test on particular state interference. However, the court disagreed. Rather than sticking to the right-to-privacy analogue, the decision of court of appeal to invalidate the law on sodomy was changed on grounds that Griswold did not institute “a primary right upon homosexual to take part in sodomy.” Claims in both two cases are similar. Griswold does not institute a right to have sex, but a decision of bear or beget children, while Bower establishes that both unmarried and married couples have a de factor right to engage in non-procreative sex. Secondly, heterosexual and homosexual activities are actually different in basic and essential level. Griswold gave heterosexual Americans the fundamental right to use contraception, which in turn enables them to have sex with a person of the opposite gender without caring as to whether the activity will lead to procreation. If the right was exclusive for bearing children but did not concern non-procreative sexual intercourse, the decisions in Griswold would be baseless. In other words, contraceptive bans would have been logical then, since they hardly interfered with crucial decisions of whether to bear a child or not, but only with the decision of having sex or not. Therefore, Griswold and Bower are connected and similar on the basis that the right to obtain contraception does not hold weight without the right to non-procreative sexual activity.

What type of originalist judicial reasoning is being used in Bowers?

The originalist judicial reasoning used in Bowers is expectation originalism. This reasoning is the concept that the contemporary means of a provision in constitution exist within the concrete expectations of framers of constitution and its subsequent ratifiers. In Bower’s case, the provisions of constitution were analyzed to find the contemporary meaning of laws against sodomy. The cases never required a judgment on whether laws forbidding sodomy between two consenting adults, particularly homosexuals, are desirable or wise. It raised no question regarding the right of state legislative decision to change the laws that criminalize sodomy or decisions of state course that invalidate the laws on state on the basis of constitution. The issue was a contemporary matter of whether the Federal constitution conferred homosexuals a basic right to engage in sodomy, thereby invalidating many state laws that were illegalizing the conduct for a long period of time. The case also required determination of the role of court in executing its constitutional mandates.  Therefore, it is more of an ‘expectation originalism’ than a semantic originalism that suggests that the constitutional law is made up of rules with fixed contents in relation to the original public meaning.

Conservatives sometimes claim they do not engage in judicial activism and that liberals do. What do you think of this claim and why?

Conservatives claim is untrue. Conservatives suggest that liberal judges make laws while their conservative counterparts simply apply the law the way it was written. This is a phony claim as conservative judges engage in every bit activist just like their liberal ones. Conservatives have a tendency of choosing to make judgments sound uncomplicated and easy. Chief Justice John Roberts, during his confirmation hearing, said he would play the role of an ‘umpire’ who applies rules rather than seeking to make them, saying that it is his duty to call balls as well as strikes rather than pitching or batting them. However, the promise hardly lasted past the vote cast by senators to confirm him. Robert and other given member conservative majority in the court did not waste any time overturning congressional laws aggressively just as any liberal judge would act and were quick to base their perspective on vague constitutional clauses. Another good example is =a case in 2007 when conservative majority changed voluntary racial integration programs in Louisville and Seattle. The programs had been adopted by local officials as a move to answer the voters, but the conservative Justices did not hesitate to invoke vague words embedded in Equal Protection Clause in an effort to thwart their agenda. In early 2010, in a financial case for a Citizens United campaign, the conservative judges changed a federal law that banned corporations from any kind of expenditure on federal elections. During another time, conservatives based their arguments on worded constitutional guarantees and in the process flouted the will of majority. Following the ruling, the poll established that 80 percent of Americans were against the ruling and 65 percent were ‘strongly’ opposed, This decision was against democracy just like any liberal ruling that conservatives complained about.  In recent past, the University of Kentucky’s law professor methodically analyzed the votes of the justices through the application of objective standards. She came to a realization that conservative courts were as =activist as liberals. 

Do you think that the Bowers decision violates the 14th Amendment? Why or why not?  Explain your position.

Yes, Bower’s 1985 decision was a violation of the 14th amendment. The 14th amendment states, “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”. Under 14th amendment, the clause on equal protection bars the federal government and states from denying any individual equal protection. The questions of this clause always arise when a state denies certain groups of people the right to do something that other group is allowed to do. In Bower, people of opposite sex were allowed to have sex in their homes while homosexuals were considered to engage in a criminal act, despite doing a private activity. Whenever courts are making a decision whether a state a state has violated this clause, they apply a test to the case in relation to the classification made by the state. In many situations, the Court allows laws that do not give equal treatment as long as they have a legitimate purpose and a rational basis. In Bower, the state did not give the individuals equal treatment as same sex couples and never allowed them the right to their privacy.

Sexuality is an individual right and trying to regulate it contravenes individual liberty rights. Just like different ways of viewing marriage are an individual right, sexual orientation is entirely a person’s choice. Bower’s case is surrounded by claims that outlawed same-sex marriage. State did not need to recognize marriage or give certain benefits to married couples. Two people engaging in sodomy at will do not interfere with the peace of a state or affect the right of another individual, thus did not qualify as a criminal offence. Moral disapproval should not be applied to people of this category. Communities and states are permitted to make laws that regulate certain moral behaviors. However, a difference lies between allowing states to show the moral disapproval of certain practices and allowing states to express their moral disapproval of sodomy outright. Therefore, criminalizing sodomy between two adults was an infringement of personal liberties outlined in the 14th amendment. 


Related essays