New York University Law Review October, 2005



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[FN102]. Id., art. 23.1, S. Exec. Doc. E at 30, 999 U.N.T.S. at 179.
[FN103]. Id., art, 23.3, S. Exec. Doc. E at 30, 999 U.N.T.S. at 179.
[FN104]. Id., art. 24, S. Exec. Doc. E at 30, 999 U.N.T.S. at 179.
[FN105]. Id., art. 25, S. Exec. Doc. E at 30, 999 U.N.T.S. at 179.
[FN106]. Id., art. 26, S. Exec. Doc. E at 31, 999 U.N.T.S. at 179.
[FN107]. Id., art. 27, S. Exec. Doc. E at 31, 999 U.N.T.S. at 179.
[FN108]. See Roper v. Simmons, 125 S. Ct. 1183, 1198 (2005) (holding that Eighth Amendment prohibits execution of person who committed his or her crime before reaching age of 18).
[FN109]. See supra note 88, United States Declarations and Understandings.
[FN110]. Id.
[FN111]. 518 U.S. 515 (1996) (striking down all-male admissions policy at Virginia Military Institute).
[FN112]. 394 U.S. 618 (1969) (acknowledging constitutional dimension to right to travel); see also Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902-03 (1986); Saenz v. Roe, 526 U.S. 489 (1999) (citing Shapiro).
[FN113]. 431 U.S. 494 (1977) (striking down single-family zoning restriction).
[FN114]. 388 U.S. 1 (1967) (protecting right to interracial marriage).
[FN115]. 539 U.S. 558 (2003) (striking down statutes criminalizing adult consensual homosexual acts).
[FN116]. 429 U.S. 589 (1977) (protecting right to confidential doctor-patient relationship).
[FN117]. 406 U.S. 205, 214 (1972) (holding that Free Exercise Clause protects “the traditional interest of parents with respect to the religious upbringing of their children”).
[FN118]. 508 U.S. 520 (1993) (finding ordinances restricting Santerian religious practices unconstitutional).
[FN119]. 529 U.S. 598 (2000) (striking down Violence Against Women Act as unauthorized by either Commerce Clause or section 5 of Fourteenth Amendment).
[FN120]. 252 U.S. 416 (1920) (Holmes, J.) (holding that if treaty is valid, then statute that provides necessary and proper means for executing treaty is also valid; rejecting argument that subject matter covered by treaties must be limited to same subjects on which Congress is permitted to legislate).
[FN121]. See generally Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (2003).
[FN122]. Legislative Reference Library of Texas, Constitutional Amendments, http://www.lrl.state.tx.us/legis/constAmends/lrlhome.cfm (last visited Apr. 14, 2005).
[FN123]. Not only is it possible that ideas of excessiveness have changed, but it is also undisputed that the value of a dollar has changed. For example, $20 in 1791 would have been worth $389.49 in 2003 using the Consumer Price Index, but it would have been worth a whopping $882,489.05 using the relative share of GDP. See Econ. History Servs., What Is Its Relative Value in US Dollars?, http://www.eh.net/hmit/compare/. This suggests that there is no meaningful way to apply an historical approach to the idea of excessive fines.
[FN124]. 217 U.S. 349, 357-58, 381 (1910) (holding that punishment of fifteen years imprisonment, civil interdiction, lifetime surveillance, deprivation of office, loss of voting rights and right to acquire honors, and loss of retirement pay was cruel and unusual in light of offense of falsifying public document).
[FN125]. 356 U.S. 86 (1958) (finding that loss of United States citizenship as punishment for crime of wartime desertion violated Eighth Amendment).
[FN126]. Id. at 100-01.
[FN127]. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).
[FN128]. 433 U.S. 584 (1977) (finding unconstitutional death penalty for rape not resulting in death of victim).
[FN129]. 536 U.S. 304 (2002) (holding that executions of mentally retarded criminals constitute “cruel and unusual punishments”).
[FN130]. 125 S. Ct. 1183 (2005).
[FN131]. Id. at 1217-18 (Scalia, J., dissenting).
[FN132]. Id. at 1192-94.
[FN133]. Id. at 1198.
[FN134]. Id. at 1200.
[FN135]. See Shapiro v. Thompson, 394 U.S. 618 (1969) (holding state statutory provisions which deny benefits to residents of less than one year unconstitutional).
[FN136]. See Palko v. Connecticut, 302 U.S. 319, 323-27 (1937) (rejecting wholesale incorporation of first eight Amendments through Fourteenth Amendment; discussing which Amendments have been incorporated and which have not); see, e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (incorporating Fifth Amendment privilege against compulsory self-incrimination); Mapp v. Ohio, 367 U.S. 643 (1961) (incorporating Fourth Amendment protections against unreasonable searches and seizures); Gideon v. Wainwright, 372 U.S. 335 (1963) (incorporating Sixth Amendment right to counsel in criminal cases).
[FN137]. See supra notes 63-83 and accompanying text.
[FN138]. See Bolling v. Sharpe, 347 U.S. 497 (1954).

              The Fifth Amendment ... does not contain an equal protection clause ....  But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.  The ‘equal protection of the laws' is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.



       Id. at 499.
[FN139]. 514 U.S. 549 (1995) (holding that Gun-Free School Zones Act exceeded Congress's authority under Commerce Clause).
[FN140]. 529 U.S. 598 (2000) (holding that Violence Against Women Act exceeded Congress's authority under either Commerce Clause or Section 5 of Fourteenth Amendment).
[FN141]. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (reading Commerce Clause to reach all navigation within states, to extent that it is connected at all to interstate, foreign, or Indian commerce); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (upholding power of Congress to establish Bank of the United States, based on Necessary and Proper Clause).
[FN142]. See The United Nations Commission on Human Rights website for a list of the years during which every country has held a seat on the Commission, http://www.ohchr.org/english/bodies/chr/docs/membership.doc (last visited Apr. 24, 2005).
[FN143]. For early articulations of this view of federalism, see The Federalist No. 9 (Alexander Hamilton) and The Federalist No. 10 (James Madison).
[FN144]. See, e.g., Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000) (striking down Massachusetts law aimed at trade with Burma (also known as Myanmar) as unconstitutional under Supremacy Clause).
[FN145]. The Texas Constitution regulates such minutiae as assistance to local fire departments, Tex. Const. art. III, § 51-a-1; the establishment of a State Medical Educational Board, Tex. Const. art. III, § 50-a; the establishment of numerous other boards, such as the Water Development Board, to which it devotes more than seven pages and eleven articles, Tex. Const. art. III, §§ 49-c to 49-d; the provision of student loans, Tex. Const. art. III, §§ 50-b-4 to 50-b-5; and, famously to graduates of the University of Texas, the establishment of a state university “of the first class,” Tex. Const. art. VII, § 10.
[FN146]. See, e.g., Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16, 64-84 (2002) (arguing that purposive interpretation is appropriate method for all legal texts).
[FN147]. 505 U.S. 833 (1992) (replacing trimester framework of Roe v. Wade with rule forbidding state regulations that place undue burden on women's right to choose abortion before fetus attains viability; subsequent to viability state may regulate or prohibit abortion, as long as law has exception for preservation of life or health of mother).
[FN148]. 432 U.S. 464 (1977) (holding that Constitution does not require state participating in Medicaid program to pay for nontherapeutic abortions of indigent women, even if it chooses to pay for prenatal care and childbirth).
[FN149]. 448 U.S. 297 (1980) (holding that title XIX of Social Security Act does not require state government to pay for medically necessary abortions for which federal reimbursement is unavailable under Hyde Amendment, Pub. L. 96-123, § 109, 93 Stat. 923, 926 (1979) (codified as amended in scattered sections of 42 U.S.C.), thus further restricting de facto access to abortions for indigent women).
[FN150]. 163 U.S. 537 (1896).
[FN151]. 347 U.S. 483 (1954).
[FN152]. 323 U.S. 214 (1944) (upholding constitutionality of military order requiring exclusion from described West Coast areas of all individuals of Japanese ancestry).
[FN153]. 124 S. Ct. 2686 (2004) (finding federal courts not barred from hearing claims of aliens held at Guantanamo Bay).
[FN154]. 124 S. Ct. 2633 (2004) (holding unconstitutional detention of United States citizen as enemy combatant without meaningful opportunity to contest).
[FN155]. See Act of June 22, 1942, Pub. L. No. 623, § 7, 56 Stat. 380 (1942).
[FN156]. See Act of June 14, 1954, Pub. L. No. 396, 68 Stat. 249 (1954) (codified as amended at 4 U.S.C. § 4 (2000)).
[FN157]. 83 U.S. 130 (1872) (Miller, J.) (upholding Illinois statute denying women right to be licensed as attorneys).
[FN158]. 335 U.S. 464 (1948) (upholding Michigan statute prohibiting women from bartending unless they were wives or daughters of liquor establishment owners), overruled by Craig v. Boren, 429 U.S. 190, 210 (1976) (overruling Goesaert insofar as it upheld sex-based classifications related to sale of alcoholic beverages).
[FN159]. U.S. Const. amend. XXVII (1992); U.S. Const. amend. XXVI (1971); U.S. Const. amend. XXV (1967); U.S. Const. amend. XXIV (1964); U.S. Const. amend. XXIII (1961); U.S. Const. amend XXII (1951).
[FN160]. See, e.g., Constitution Act, 1982, sched. B, pt. I (citing Canadian Charter of Rights and Freedoms, § 33, which details power of Parliament or legislature of province to make overriding declarations).
80 N.Y.U. L. Rev. 1079
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