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The decision in Roe v. Wade, (1973) rests on the judicial concept of "Substantive Due Process," which holds that the Fourteenth Amendment Due Process Clause is intended to protect all unenumerated rights considered fundamental and "implicit in the concept of ordered liberty," among these the right to privacy. Use of Substantive Due Process is considered judicial activism, in that it seeks to limit the scope of laws that undermine personal liberty, even if the law doesn't address a right specifically mentioned in the Constitution.
Earlier, Lochner-era (approximately 1897-1937, second industrial revolution) Courts used Substantive Due Process in a way that reduced protection of the individual against exploitation by businesses and the government, such as protecting the right of the individual to negotiate contracts with an employer by holding employment laws regulating minimum wage and work conditions unconstitutional.
Today, Substantive Due Process is used to protect the individual against exploitation or legislation that creates an undue burden on individuals, or on an identifiable group or class of citizens.
In order to determine whether the government has valid cause to interfere in people's lives, the Court applies a "rational basis test" to determine whether the legislation is related to a legitimate government interest. If the law passes the rational basis test, the Court next applies "strict scrutiny" to determine whether there is a compelling state interest that justifies violating the groups' or individuals' fundamental rights, and whether the law is applied as narrowly as possible to infringe those rights as little possible.
The right to privacy is intrinsic in this abortion case because the Court held that the decision about whether to terminate or continue a pregnancy was one that should be made between doctor and patient, not legislated by the government.
While the Court has consistently acknowledged the State's interest in the life of the unborn child, that right has been held subordinate to the right to privacy.
Case Citation:
Roe v. Wade, 410 US 113 (1973)
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Which clause of the fourteenth amendment ended up being used by the courts to apply the bill of rights to the the states?
The due process clause of the Fourteenth Amendment is used by the courts to apply the Bill of Rights to the states.
Which clause of the fourteenth amendment ended up being used by the court to apply the bill of right to the states?
The due process clause of the Fourteenth Amendment is used by the courts to apply the Bill of Rights to the states.
How primarily does Chief Justice earl warren support the supreme courts?
He cites the Fourteenth Amendment and explains its purpose.
What body was given the power to make sure the fourteenth amendment was enforced?
Federal courts assure the COnstitution is obeyed by governments.
What was the effect of the supreme courts decision in loving v Virginia?
What was the effect of the Supreme Court's decision in Loving v. Virginia
Which courts does the obiter dictum of a US Supreme Court decision bind?
None. Ratio decidendi sets forth the legal reasoning for the decision in a case. Obiter dictumis judicial opinion or incidental comments that are relevant, but not legally binding, because they're not part of the decision.The ratio decidendi creates binding precedent on all federal courts and on state courts of general jurisdiction, provided the decision involves a constitutional issue that is incorporated to the states, or becomes incorporated to the states as a result of that decision.For example, the US Supreme Court's decision in McDonald v. City of Chicago, 561 U.S. ___ (2010) applied the Second Amendment to the States via the Fourteenth Amendment Due Process Clause.
What was the Plessy v Ferguson supreme courts decision?
the Court rejected Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the Louisiana statute violated it .segregation was supported by the Jim crow laws Delegation of rasict everywhere for example schools hospital and drinking fountain many more etc.
Who was responsible for bringing freedom of the press to the courts?
Freedom of the press is protected by the First Amendment of the Constitution. The right to free speech without restraint was upheld in the Supreme Court case of Branzburg v. Hayes. In 1931, Near v. Minnesota used the Fourteenth Amendment to include Freedom of the Press in state courts as well. .
Can a Florida municipality require someone to own land before they can run for city commissioner?
It has been determined in Federal courts that the ballot access restriction is not rationally related to any legitimate governmental interest and violates the equal protection clause of the Fourteenth Amendment. 790 F.2d 328.
Can a 12 yr old child in connecticut's decision to not be with his father override the courts order of visitation?
no, see related link
What effect did the courts ruling in the slaughterhouse cases have on the Dred Scott decision?
The Slaughterhouse Cases decision limited the scope of the 14th Amendment's Privileges or Immunities Clause, which weakened the impact of the Dred Scott decision that had denied rights and citizenship to African Americans. The Slaughterhouse Cases contributed to the narrowing interpretation of the 14th Amendment, which affected the legal rights of formerly enslaved individuals.
Is the US Supreme Court decision in Mapp v. Ohio considered judicial restraint or judicial activism?
Mapp v. Ohio, 367 US 643 (1961)That depends on your perspective. The states undoubtedly considered the decision judicial activism because the "exclusionary rule," preventing "evidence obtained by searches and seizures in violation of the Federal Constitution from being admitted in a criminal trial in a state court," interferes with the states' police powers. Under Chief Justice Vinson, the Supreme Court held that the Fourteenth Amendment didn't apply this aspect of the Fourth Amendment to the states in Wolf v. Colorado, 338 US 25 (1949).It's probably more reasonable to say the exclusionary rule, itself, which the Supreme Court developed in response to Weeks v. US, 232 US 383 (1914), was an example of judicial activism because the rule was created by the Court, rather than the legislature. The White Court held the exclusionary rule was supported by a combination of the Fourth Amendment protection against unreasonable search and seizure and the Fifth Amendment protection against self-incrimination, providing further indication of judicial activism (in the Weeks case). In Mapp, the Warren Court held the Rule was supported entirely by the Fourth Amendment, resulting in a less creative and more straightforward constitutional interpretation.Mapp upheld established federal laws and precedents found constitutional by earlier Supreme Courts, but carried the rule one step farther by applying it to states via the Fourteenth Amendment Due Process Clause. By the time the Mapp decision was released, the federal justice system had been using the exclusionary rule for 47 years.The determination of whether the decision in Mapprepresented an instance of activism or restraint may rest on one's opinion about using the Fourteenth Amendment Due Process Clause to selectively incorporate the Bill of Rights to the States. Many constitutional scholars argue the Fourteenth Amendment intended total incorporation of the Bill of Rights, and that late 19th-century courts were guilty of resisting the Amendment's purpose for sociopolitical reasons.For more information, see Related Questions, below.
