Showing papers on "Substantive due process published in 1997"

The right to refuse mental health treatment

Abstract: A Continuum of Intrusiveness Psychotherapy Behaviour Therapy Psychotropic Medication Electroconvulsive Therapy Electric Stimulation of the Brain Psychosurgery The Constitution and Other Sources of Legal Limitation on Governmentally Imposed Therapy The First Amendment and Mental Health Treatment - Constitutional Protection Against Interference With Mental Processes Substantive Due Process and Mental Health Treatment: Constitutional Protection for Bodily Integrity, Mental Privacy and Individual Autonomy Treatment as Punishment: Eighth Amendment Limits on Mental Health Interventions Religious-Based Refusal of Treatment: Constitutional Protection for the Free Exercise of Relgion Are Mental Patients Different? - Equal Protection Limits on Involuntary Treatment Scrutinizing the Governemt's Interests in Involuntary Treatment Scrutiny of the Means Used to Accomplish Governmental Interests A Therapeutic Jusisprudence Analysis of the Right to Refuse Mental Health Treatment Waiver of the Rights to Refuse Treatment - The Requirement of Informed Consent Procedural Due Process and Involuntary Therapy - The Right to a Hearing The Future of the Right to Refuse Treatment.

Kansas v. Hendricks

Abstract: The U.S. Supreme Court considered an appeal by the State of Kansas that arose from the Kansas Supreme Court's invalidation of the Kansas Sexually Violent Predator Act. The Act establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence." The Supreme Court held that the Act's definition of "mental abnormality" satisfies substantive due process requirements. The Court further held that since the Act does not establish criminal proceedings, it does not violate the Constitution's double jeopardy prohibitions or its ban on ex post facto lawmaking. The Court's holding and its implications are discussed.

Guns, Words, And Constitutional Interpretation

Abstract: In the aftermath of the Oklahoma City bombings, Linda Thompson, the self-appointed Acting Adjutant General of the Unorganized Militia of the United States, proclaimed that the Second Amendment "isn't about hunting ducks; it's about hunting politicians."(1) She might as well have added that we ought to shoot a few politicians right now as a message to the rest to wake up and stop stealing our rights.(2) Thompson's statement represents the interesting, and not infrequent, constitutional blend of a First Amendment exercise to promote Second Amendment rights. She readily can be distinguished from mainstream constitutional law scholars both by profession and by example. Civil libertarians with strong First Amendment affinities traditionally have had even less use for the Second Amendment than gun advocates have had for the civil liberties of others.(3) In general, First Amendment scholars view the rights protected by the Second Amendment as deserving less protection than does thought.(4) They agree with the prevailing constitutional interpretation, which holds that the First Amendment guarantees strong individual rights to freedom of expression while the Second Amendment guarantees no individual rights at all, only a collective right to have a very well regulated militia.(5) In the words of the American Civil Liberties Union (ACLU), "[e]xcept for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."(6) A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual right to possess guns.(7) Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their articles.(8) Their "conversion" rate, however, is incremental and slow-one person at a time every so often. In the meantime, most scholars reject the individual rights claim without seriously considering the merits of the scholarship on both sides of the issue. One reason is that the Supreme Court supposedly settled the issue, rejecting an individual rights claim, more than fifty years ago.(9) Another reason may be that the new Second Amendment scholarship conflicts with the hoped-for converts' political views.(10) Yet another reason may be that it analyzes the amendment in terms of text and history.(11) The former is unconvincing (save for those who wish to be convinced), while the latter rests on a claim that the dead hand of the past should rule the present. The debate, on its present terms, seems stagnant because it has become repetitious and stylized. Neither First Amendment nor Second Amendment scholars, nor any other constitutional law experts, have ever suggested that it might be enlightening to combine the two amendments and explore their interpretation not as a pair, but jointly nevertheless.(12) Putting the two amendments through the various modes of constitutional interpretation yields some interesting insights about both constitutional interpretation and preferences for certain rights. This Article explores these insights, after first placing Thompson's comments in the context of modern constitutional doctrine. I. THE ISSUE If both Linda Thompson's comments and my hypothetical extension of them were placed on a Constitutional Law exam, professors would have no difficulty flunking any student who did not recognize that Thompson's speech was protected fully by the current positive law of the First Amendment. Most professors probably would approve of this result. In the first place, she was at most advocating assassination, and generalized advocacy of violence receives full protection.(13) Only when advocacy merges into incitement would the speaker lose constitutional protection.(14) Second, "right now" is ambiguous as to time. Brandenburg v. Ohio(15) as well as Hess v. Indiana" mandate an immediacy of action that Thompson's words, issued over broadcast television, lack. …

Advocacy, Practice, and Procedure Committee

Abstract: WHAT conduct by public school teachers "shocks the conscience" so as to rise to the level of a constitutional violation? Under substantive due process, ordinary torts committed by state actors do not rise to the level of constitutional violations unless the conduct is so arbitrary and capricious as to "shock the conscience."(1) In DeShaney v. Winnebago County Department of Social Services, (2) the U.S. Supreme Court discussed the 14th Amendment due process clause concept of substantive due process in a case in which it was alleged that a state deprived a child of his liberty interest to be free from "unjustified intrusions on personal security" by failing to provide him with adequate protection against his father's violence. "The claim is one invoking the substantive rather than procedural component of the due process clause," the Court stated. This standard was discussed in Collins v. City of Harker Heights,(3) in which the Supreme Court affirmed the district court's dismissal of an action on the grounds that no constitutional violation had been shown because the alleged conduct did not shock the conscience. Justice Stevens stated that the first step in analyzing a 42 U.S.C. [subsection] 1983 claim against a municipality was whether the "plaintiff's harm was caused by a constitutional violation." Whether the action was taken pursuant to an official policy is irrelevant until the first step has been answered affirmatively. In Collins, it was argued that a policy of deliberate indifference by a city caused the plaintiff a constitutional injury under the substantive component of the due process clause. In dismissing, the Court found that the city's deliberate indifference to safety procedures did not shock the conscience, as the injury was of a type traditionally governed by state law, and thus no substantive due process violation was pleaded, and the federal claims were properly dismissed because under Section 1983 no constitutional violation had been shown. (4) Statements insufficient Courts generally have held that verbal sexual statements are insufficient by themselves to be "conscience shocking," although one court said it had not foreclosed that possibility, but that the threshold for alleging such claims is high and that the fact alleged here [explicit sexual commentary] do not rise to that level."(5) The basis for refusing to allow verbal harassment to implicate substantive due process goes back to the core right -- the right to bodily integrity. There must be significant physical touching to implicate the right to bodily integrity.(6) In Abeyta by Martinez v. Chama Valley Independent School Dist. No. 19,(7) the issue was whether certain conduct by a teacher arose to the level of "shocking to the conscience." The teacher allegedly called a student a prostitute and apparently permitted her classmates to taunt her over a period of weeks. In rejecting this as a substantive due process claim, the 10th, Circuit held: "What allegedly occurred here might be enough to state a claim under Title VII if done in an employment context. But plaintiff is claiming a constitutional substantive due process violation. More is required to state a claim for a constitutional violation.... [E]ven extreme verbal abuse typically is insufficient to establish a constitutional violation." Bodily intrusion The fact that there must be a significant bodily intrusion was examined in Lillard v. Selby County Board of Education,(8) in which the Sixth Circuit was faced with a case where a male coach allegedly made numerous sexual remarks to three female plaintiffs. Title IX and Section 1983 claims were presented. In addressing whether the coach's conduct was "shocking to the conscience," the court noted that the teacher's conduct included verbal sexual abuse, fondling of a breast, touching of buttocks, and rubbing a student's stomach while making sexual comments. …

The right to die.

Abstract: This essay argues against a right to physician-assisted suicide. It urges that the state has sufficient interests -- in protecting against abuse and diminished patient autonomy -- to justify intruding on any "fundamental right." It suggests that the previous substantive due process cases should be read as involving problems of equal protection or procedural due process.

The Unruly Character of Politics

Abstract: Every age has its issue and ours may be abortion It has posed many challenges to the Supreme Court, above all that of reexamining the long discredited doctrine of substantive due process The 1973 ruling in favor of the individual woman’s right to choose to have an abortion sharply divided the Court and over the next two decades the Court has had to revisit the issue to see whether the initial ruling should be affirmed, as indeed it has beenBeyond that, the Court has had to find a place within the constitutional order for the losers: To what extent shall those opposed to abortion be allowed to air their views and keep the controversy alive? Because the pro-life forces have not been content to advance their cause only through the ballot box or the courts, but have most decidedly taken to the streets, specifically to picket abortion clinics and the doctors who work in them, the abortion controversy has also forced the Supreme Court to probe the limits of the First Amendment and its guarantee of free speech This is my subject

The Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and Despots

Abstract: This article argues three major points: 1) The historical evidence surrounding the adoption of the Second Amendment indicates that it intended to protect the right to self-defense, facilitate a broad-based militia, and serve as a deterrent against governmental oppression; 2) the Framers of the Fourteenth Amendment intended the Second Amendment to apply to the states, and their main concern was the right to self-defense, especially the horrors of the Reconstruction South; and 3) an insincere interpretation of the Second Amendment and its state equivalents has led to the militia movement as well as an erosion of respect for American government. The article concludes that the right to keep and bear arms is as old as this country. It was first guaranteed by state constitutions, then by the Second Amendment, and subsequently reaffirmed by the Fourteenth Amendment. It is as sacred as trial by jury and freedom of speech and press. Courts have an obligation to protect it because the integrity of the courts depends on it.

Roe V. Wade and the Euthanasia Debate

Abstract: When abortion was declared a constitutional right in America, pro-life scholars declared that the nation had stepped on a slippery slope and predicted it would quickly lead to infanticide, assisted suicide, and active euthanasia.(1) That prediction will be proven true with respect to assisted suicide(2) if the United States Supreme Court affirms decisions by federal appellate courts in the Second and Ninth Circuits finding a constitutional right to assisted suicide.(3) The prediction was based on the fact that societal approval of abortion constituted something even larger than approval of abortion. Implicit in the approval of abortion on demand was the principle that it is permissible to take innocent human life, even for reasons of convenience. Once that principle was accepted, it was but a short distance to societal acceptance of "Baby Doe" cases and assisted suicide. The slippery slope has been lubricated by the numbing effect of three decades of one and a half million abortions a year. Jack Kevorkian's relentless flouting of the law, coupled with the inability of prosecutors to gain criminal convictions against him, has further numbed public outrage at assisted suicide and created a malaise of perceived inevitability. However, if America does not gain a toehold on the slippery slope before reaching legal approval of assisted suicide, it should not be expected that the slide will stop at assisted suicide. The distance between assisted suicide and voluntary euthanasia (and even nonvoluntary euthanasia for persons who are incompetent) is even shorter than that between abortion and assisted suicide. What is not appreciated by many (including those who support abortion rights but oppose assisted suicide) is the connection between the declared right to assisted suicide and the constitutional analysis employed by the United States Supreme Court in Roe v. Wade.(4) To change metaphors, Roe v. Wade (the case declaring a right to abortion) is the root, the reaffirmation of Roe in Planned Parenthood v. Casey(5) is the branch, and the right to assisted suicide is the fruit. The Root: Roe v. Wade In 1973, the United States Supreme Court seized the abortion issue from the laboratory of the states (some of which had been experimenting with more permissive abortion laws) and secured it behind the pale of constitutional protection. The decision, known as Roe v. Wade, was vigorously criticized by constitutional scholars for abandoning all pretense of being constitutional law and imposing on the states by fiat a regime of abortion on demand.(6) To understand the scholarly outrage, it is necessary to explore the debate over the shadowy realm of substantive due process. Substantive due process is the analytical device employed by the Court to declare constitutional rights not enumerated in the Constitution. Of course, it was not intended by the framers of the Constitution that the Supreme Court find unenumerated rights. The Constitution was designed to create a limited government, with the federal government receiving only those powers and protecting only those rights ceded to it by the people. All other powers and the right to regulate all other matters were retained by the people and the states, as expressly set out in the Constitution.(7) The arrangement was only to be altered by formal constitutional amendment. In the Constitution and its amendments, the people granted the federal government the power to protect certain rights that were to be beyond the power of the federal or state governments to impinge upon. Those enumerated rights included the rights to free speech, free press, free association, free exercise of religion, and so on, as set out in the Bill of Rights. Over the years, the high Court has had to apply these enumerated rights in changing contexts. For example, the rights to free speech and free press have been applied to an age of broadcast media and the Internet. …

Due Process Limitations on Federal Extraterritorial Legislation

Abstract: In this article, Professor Weisburd addresses whether the due process clause of the Fifth Amendment imposes limitations on the territorial reach of federal legislation, analogous to the territorial limitations on the legislative authority of the states imposed by the due process clause of the Fourteenth Amendment. He concludes that the Fifth Amendment creates no such limitations. He seeks to support this conclusion, first, by analyzing relevant decisions of the United States Supreme Court. He also seeks to demonstrate that the existence of such limitations would both be inconsistent with the implications of provisions of the Constitution other than the Fifth Amendment and severely limit the ability of the federal government to protect the interests of the United States in the international arena, given the realities of the structure of the international system. Finally, Professor Weisburd seeks to address certain objections to his views.

A Threat to Student Speech

Abstract: In February 1993 Sarah Lovell was a 10th-grader at Mt. Carmel High School in San Diego County, California. On February 2 at 1:30 p.m., she revisited her school counselor, Linda Suokko, in her efforts to change her class schedule. Lovell had been shuttled back and forth between the counselor's office and the administrative offices for several hours as she attempted to secure the changes. As a result, she was frustrated and irritable. This visit was to have been her final stop in this brouhaha; Suokko simply needed to enter into the school's computer system the changes that had been approved by Scott Wright, the assistant principal. As she entered the changes, however, Suokko noticed that the courses that Wright had approved were already overloaded. She advised Lovell of the problem and told her that she might have to go back to Wright's office. At the end of her patience, Lovell uttered a statement that was later subject to dispute. According to Suokko, Lovell said, "If you don't give me the schedule change, I'm going to shoot you." According to Lovell, she muttered simply, "I'm so angry I could just shoot someone." In any event, Lovell immediately apologized to Suokko, who completed the requested schedule change, and Lovell left the office.(1) Approximately three hours later, after processing schedule changes for the long line of students waiting outside her door, Suokko reported Lovell's statement to Wright. She told him that she felt threatened by the content and manner of the statement, which implied that she might be in some future danger from Lovell. After consulting with Wright, she filled out a student referral form, reporting the matter as a disciplinary incident to Mary Heath, another assistant principal. Two days later, Heath called a meeting with Suokko and Lovell to discuss the matter. Lovell admitted part of the allegations but claimed that she merely muttered a "figure of speech" and meant no harm. Suokko retorted that she had felt threatened, in that Lovell was "angry, serious, and emotionally out of control when the statement was made." Heath informed Lovell that she was being suspended from school for three days. Heath then met with Lovell's parents to advise them of their daughter's suspension for threatening her counselor. Although at first the Lovells accepted the suspension, when they received a copy of the student referral form, they became extremely upset by Suokko's portrayal of the events. They found Suokko's assertions that Sarah immediately and individually targeted her and that Sarah had a "volatile nature, ... lack of impulse control, ... possible violent verbal tendencies, [and] potentially explosive behavior" to be strongly at variance with their understanding of what had happened. The Lovells wrote to the school principal demanding that the referral report be removed from Sarah's file. When the school refused to take any action, they filed suit in federal court against the district and its administrative officials, claiming violations of due process under the 14th Amendment and of free speech under the First Amendment and under California law. The parties agreed to a bench trial before a magistrate judge. After hearing the matter, the judge held that the district had provided appropriate procedural and substantive due process under the 14th Amendment but that it had violated Lovell's free speech rights under the First Amendment. He predicated the First Amendment ruling on the conclusion that Lovell's statement did not constitute "the requisite 'threat' required by law, under either contention as to the exact words spoken, to allow infringement on her right of free speech." As a result, he awarded the Lovells 50% of their requested attorney's fees (which totaled $22,728 at that point), based on the work done for their successful First Amendment claim. The district filed for review of the lower court's First Amendment ruling by the Ninth Circuit Court of Appeals. …