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Rethinking the Fundamentals: Applying The Evolving Standards of Decency Test To The Court’s Evaluation of Fundamental Rights.
Get PDFIn 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the “evolving standards of decency” test to determine fundamental rights under the Fourteenth Amendment’s Due Process Clause and provide more robust constitutional protections for LGBTQ+ rights. Specifically, it applies the test to Lawrence v. Texas and Obergefell v. Hodges to show how it would distinguish and affirm the respective protections found in those cases. This new application would not change the Court’s current “history and tradition” test for fundamental rights, but rather it reimagines how to view history and tradition when we seek to determine which rights are fundamental in contemporary society. As the Court continues to restrict substantive due process rights—and explicitly put the rights discussed in Lawrence and Obergefell at risk—the “evolving standards of decency,” test offers advocates a new approach to protect marginalized communities within this narrow framework
A Critical Race Theory Analysis: The Role of Racialization, the White Racial Frame, and Institutional Power in California Eugenics Sterilizations
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The Origins and Future of International Data Privacy Law
Get PDFData privacy law varies widely across jurisdictions worldwide. Amidst sophistries and jurisdictional conflicts between lawmakers in Europe and the United States, a largely unregulated cross-border data industry emerged, prepared to exploit an unaware or overwhelmed general public. Without governmental support, privacy itself is in grave danger. The people, as true bearers of the fundamental right to privacy, must be put back in control of their data by governments that are aware of their ever-conflicting roles as protectors and aggressors. Scholars like Ari Ezra Waldman, in its book “Industry Unbound,” have criticized the common notice and consent approach to privacy as mere performance, calling for more governmental regulation instead of private enforcement. What they often overlook is the international dimension of the issue at hand, the specific and complex history of privacy as a philosophical and legal concept, and the inherent need to ultimately put people in control, not governments.
By recollecting the function and value of privacy, of data, and of corresponding legislation, lawmakers all over the world might be able to enter into a new era of privacy awareness. This article explores possible solutions from an international perspective, based on the historical and philosophical foundations of privacy itself, and a comparison between the privacy history of the United States, Germany, and the European Union
