Constiutional thought question

[slickpoppa]

Would it be unconstitutional for a state to pass a law that makes it illegal, subject to criminal sanctions, for anyone to have more than one child? If so, on what grounds would it be unconstitutional?

[Exsubmariner]

Is this on the ballot in the People's Republic of California?

1st amendment maybe? Seems like it'd infringe on freedom of religion. Being fruitful and multiplying and such. Unless the Supreme Court rules God was talking about cultivating apple trees and doing math problems.

[moose47]

I imagine it would be struck down on the same grounds as Roe v. Wade. If it is unconstitutional for a state to prohibit an abortion it seems like it would be unconstitutional for a state to mandate an abortion. Either way you are removing the choice from the mother thereby violating her privacy or personal liberty or whatever the reasoning behind Roe is. I am actually not too familiar with it. But I would think the same logic would hold here as this law would implicitly require a woman to get an abortion or be faced with criminal charges.

[renodoc]

How about phasing out the dependent tax exemption after 2 kids?

(Oh, wait, they already did that to me....)

[DVaut1]

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Would it be unconstitutional for a state to pass a law that makes it illegal, subject to criminal sanctions, for anyone to have more than one child? If so, on what grounds would it be unconstitutional?

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Being the good leftist that I am, I think we can find these kinds of protections (the kind that allow citizens to decide to have as many children as they like) in a penumbra of amendments - especially the 1st, 5th, 9th, and 14th Amendments. The First Amendment (specifically the Free Exercise Clause) would probably provide the weakest protections; again, though, some notion of substantive due process (derived from the 5th/14th Amendments - particularly the 14th Amendment, as it applies to states) would likely invalidate such child-limiting laws.

I can already hear the objections of Justice Scalia now...

[Benman]

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I can already hear the objections of Justice Scalia now...

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Yes, it would be fascinating to see the right wing judges try to handle such a case. To overturn such a law, and obviously they'd like to overturn such a law, they'd have to agree with the Griswold and Roe line of cases, it seems.

It comes awfully close to a hypothetical my constitutional law professor posed to us in law school. Is there a right to life under the US constitution, such that in the event Roe v. Wade were ever overturned, would Scalia and others ever try to argue that a state could not allow abortions? Of course no such right can be found in the originalist jurisprudence that Scalia supports, but he's let his own morals interfere with his judicial philosophy before (marijuana legalization as an exception to new federalism, for example). As interesting as it would be, pretty safe to assume we'll never get the chance to see it.

[DVaut1]

[ QUOTE ]
Yes, it would be fascinating to see the right wing judges try to handle such a case. To overturn such a law, and obviously they'd like to overturn such a law, they'd have to agree with the Griswold and Roe line of cases, it seems.

It comes awfully close to a hypothetical my constitutional law professor posed to us in law school. Is there a right to life under the US constitution, such that in the event Roe v. Wade were ever overturned, would Scalia and others ever try to argue that a state could not allow abortions? Of course no such right can be found in the originalist jurisprudence that Scalia supports, but he's let his own morals interfere with his judicial philosophy before (marijuana legalization as an exception to new federalism, for example). As interesting as it would be, pretty safe to assume we'll never get the chance to see it.

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Silliness aside (silliness = when I said I could hear Scalia's hypothetical objections), I certainly can't read Justice Scalia's mind; but I honestly assume he would have no objections to such child-limiting laws. As you said, invalidating such laws (I think, anyway) implies at least a tacit concession that Griswold was decided correctly (and we can probably extend such a concession to Roe) – and would have much broader implications regarding textualists and privacy.

[Benman]

If he was intellectually consistent, then yes he'd let such a law stand. But did you read his concurrence in the recent California marijuana case (I can't remember the name of the case)? He basically reversed course on a decade of new federalism to say that a state can't legalize marijuana, then he cited some old interstate commerce cases that he's made fun of before. The point is, he's as right wing from a moral standpoint as he is a judicial originalist, he just seldom has to show his true stripes since most judicial activism has been towards the left instead of the right.

[KellyRae]

Invalid by 14th Amendment Analysis - right to have children is fundamental right.