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Notes INTRODUCTION 1. Roe v. Wade, 410 U.S. 113 (1973). 2. Doe v. Bolton, 410 U.S. 179 (1973). 3. Douglas, Burger, Stewart, Powell, Marshall, and Brennan, who were part of the 7-2 majority. 4. City of Akron v. Akron Center for Reproductive Health Services, 462 U.S. 416, 459 (1983). 5. Webster l~. Reproductive Health Services, 492 U.S. 490, 532 (1989). 6. Thornbu1gh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-788 (1986). 7. Webster, at 518. 8. San Antonio School District v. Rodriguez, 411 U.S. 1, 17 (1973). 9. See McGowan v. Maryland 366 U.S. 420, 425-426 (1961). 10. Munn v. Illinois, 94 U.S. 113, 134 (1877). 11. This is essentially the view of Justice Harlan Fiske Stone in United States v. Carolene Products, Co., 304 U.S. 144, 152n. 4 (1938). I do not endorse this view in the present work. I include it here because it is one manner in which the Court sometimes reasons, and I am here describing significant "moves" characterizing the judicial "game" of constitutional interpretation. Most such "moves" are pe·rfectiy fair, but some I find to be illegitimate, for example, those used in the original rationale for Roe v. Wade. Other "moves" I find irrelevant to the present work. The "insular minorities" move in equal protection analysis is in this category, as explained in Chapter 2. 12. Rodriguez, at 16. 13. There may be an exception, however. Fortunately, it does not undermine any major contention of the present work. Five justices maintained in Employment Division, Department of Human Resources of Oregon v. Smith, 58 L.W. 4433 (1990) that the fundamental right to free exercise of religion could be 251 252 Notes to the Introduction curtailed by generally applicable criminal statutes that are merely rationally related to a legitimate purpose. Oregon's law prohibiting "the knowing or intentional possession of a 'controlled substance'" included peyote among controlled substances and made no exception for the religious use of peyote. The Court held that since the statute concerns criminal conduct and was not aimed at denying anyone free exercise of religion, it is valid because it is rationally related to the goal of reducing drug abuse. The state need not show the law to be essential to meet a compelling public need. This opinion, Justice O'Connor pointed out for the remaining four justices, conflicts with the normal respect accorded fundamental rights in general and the right of free exercise in particular . Significant burdens on these rights are usually subject to strict scrutiny by the Court. In his confirmation hearing, Justice David Souter sided with O'Connor on this matter. In any case, the thesis of the present work rests primarily on an analysis of the Establishment Clause and on the rational relationship standard of review. It is worth noting also the Court may have a standard of review between the extremes of requiring merely a rational relationship to public purpose and subjecting a statute to strict scrutiny. Justice Marshall presents several examples in his dissent in Rodriguez, 102-110. See also L. Tribe, American Constitutional Law, 2nd ed. (Mineola, N.Y.: Foundation Press, 1988), 1601-1625. 14. Robert Bork argued this in "Neutral Principles and Some First Amendment Problems," 47 Indiana L. J. 1 (1971). 15. This point is inspired by reading John Arthur, The Unfinished Constitution (Belmont, Calif.: Wadsworth, 1989),5-6, 12-13. 16. October 17, 1788. Found in Arthur, Unfinished Constitution, 12. 17. A letter to John Taylor. Found in Arthur, Unfinished Constitution, 13. 18. For a good defense of a Liberal view, see Thomas Grey, "Do We Have an Unwritten Constitution?" 27 Stan. L. Rev. 703 (1975). 19. For a good critique of the Liberal view, see Sidney Hook, The Paradoxes of Freedom (Berkeley: University of California Press, 1964), especially Chap. 2. For a more recent treatment, see Robert Bork, The Tempting of America (New York: Free Press, 1990). CHAPTER 1 1. Lochner v. New York, 198 U.S. 45, 56-57 (1905). 2. Lochner, at 72-73. Note also that there have been two justices in this century named John M. Harlan. The second one, whose opinions in cases concerning contraception are considered later in this chapter, was opposed to some of the views represented here by the first Justice Harlan. 3. Nebbia v. New York, 291 U.S. 502 (1934). 4. Meyer v. Nebraska, 262 U.S. 390, 390-391 (1923). 5. Pierce v. Society...


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