University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Study questions: chapter 3, “The Constitution”

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. pp. 79–94
    1. Why was it believed that popular government is incompatible with the rule of law?
    2. Why did the framers of the Constitution want to design a government that would be republican rather than democratic?
    3. What is the power known as judicial review?
    4. On what two sets of grounds do some supporters of the legal legitimacy of judicial review claim that judicial review is required to ensure that democratic government operates under the rule of law?
    5. On what grounds does Ely claim that judicial review will promote a more democratic political system? On what grounds does Ackerman claim this?
  2. pp. 94–107
    1. What did Douglas claim was the connection between the rights mentioned in the Bill of Rights and the right to privacy? (Your answer to this question should be a sentence including the word ‘penumbra’.) What did he mean by this claim? (Your answer to this question should explain what is going on with the idea of a penumbra.)
    2. How, according to Altman, does the wording of the Eighth Amendment provide evidence for the claim that the framers of the Constitution did not intend for future generations to be bound by the specific intentions they had when they wrote that part of the Constitution?
    3. How, according to Bork, did the Dred Scott decision involve a departure from the original understanding of the Constitution (specifically, the Due Process Clause)? How did the Griswold decision involve a departure from the original understanding of the Constitution?
    4. How does Dworkin’s theory explain how the Constitution contains a general right of privacy?
  3. Griswold v. Connecticut (based on questions written by Alex Herman)
    1. On what grounds, according to Douglas, do the appellants (Griswold and Buxton) have standing to challenge the constitutionality of a law having to do with the rights of married couples?
    2. What is one of the rights that Douglas mentions as an example of a right that the the First Amendment does not mention but has been construed to include?
    3. What right does Douglas mention just before introducing the concept of the “penumbra” of the First Amendment? What does it mean for a right to be in the penumbra of the First Amendment? (For the answer to this latter question, look in three places: the bottom of p. 482 and the top of p. 483, the bottom of p. 483, and the top of p. 484.)
    4. Which two amendments does Douglas seem to regard as most important in terms of creating a right to privacy?
    5. What is the “liberal reading” Black offers of the Fourth Amendment? How does it differ from a reading of that amendment that sees it as essentially protecting a person’s privacy?
    6. What, according to Black, is the only condition under which the government is not allowed to invade a person’s privacy?
  4. Rawls et. al, “Assisted Suicide: The Philosophers’ Brief”
    1. If the Supreme Court had decided not to hear the two cases under discussion, who would have won—the individuals desiring the option of physician-assisted suicide, or the states desiring the option of prohibiting it?
    2. What is the theoretical version of the slippery-slope argument (in regard to physician-assisted suicide)?
    3. What is the practical version of the slippery-slope argument (in regard to physician-assisted suicide)?
    4. In the ‘Introduction and Summary of Argument’ section of the brief, what reason for a state’s prohibiting physician-assisted suicide do the authors mention (and reject)?
    5. Planned Parenthood v. Casey is an abortion case from 1992. The authors quote from this case in reference to what aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment?
    6. What are two of the views about how to face the prospect of death that the authors discuss?
    7. The authors claim that the principle that the Court relied on in order to establish the right to abortion in Planned Parenthood v. Casey also implies the right to physician-assisted suicide. What is this principle?
    8. The authors say that the court’s decision in the Cruzan case implies the right to physician-assisted suicide. What narrower implication do opponents of physician-assisted suicide draw from the Cruzan case (instead of the implication just mentioned)?
    9. What interest does George Fletcher say the state has in prohibiting physicians from helping patients end their lives? What is Dworkin’s response?
  5. Washington v. Glucksberg (based on questions written by Megan McGinnis)
    1. On what constitutional grounds, according to Rehnquist, do the plaintiffs claim that banning physician-assisted suicide is unconstitutional? (Your answer should say something about what the plaintiffs say about the Fourteenth Amendment.)
    2. In section I of his opinion, what does Rehnquist say must be examined at the start of any due-process case?
    3. What was the legal status of assisted suicide in the U.S. at the time of the ratification of the Fourteenth Amendment?
    4. Looking back over section I as a whole, what does Rehnquist find in the course of examining the history, legal traditions, and practices of the U.S.?
    5. In section II, what is an example of a liberty interest that shows the Due Process Clause being interpreted substantively, not just procedurally?
    6. What two criteria does Rehnquist say must be met in order for a “liberty interest” to be recognized as being included in substantive due process?
    7. Why, according to Rehnquist, is it a misrepresentation to describe the Cruzan case as a “right to die” case? (This is addressed at pp. 722–723 and then again at pp. 724–726, and you should read both passages in order to answer this question. The next question, below, does not arise until after the second of these passages.)
    8. What does Rehnquist say to explain why the Casey decision does not imply the right to physician-assisted suicide?
    9. Why does Rehnquist inquire into whether the state of Washington’s ban on physician-assisted suicide is “rationally related to legitimate government interests”?
    10. What rational interest of the state of Washington does Rehnquist say its ban on physician-assisted suicide is related to? What dangers does Rehnquist say it is reasonable for the state to try to avoid by prohibiting physician-assisted suicide?