An Aide-Memoire for the Supreme Court's ‘Maintenance’ Doctrine

Abstract:     
Increasingly in recent years, the Supreme Court dispensed entirely with the "scrutiny" regime – most famously in Lawrence v. Texas. Instead, the Court has increasingly emphasized that the Constitution is the maintenance of important facts, not a rational relation to a legitimate government purpose. Here we examine the origins and meaning of the concepts of "maintenance" and "importance."

According to the Court, important facts are maintained by the interrelation of important facts. The tests and scope of discovery and individually enforceable rights, are quite different from those used currently by the Bar litigating the Constitution.

Number of Pages in PDF File: 9

Keywords: Constitution, right, scrutiny, strict, Supreme, bill, amendment, process, law, First, Fourteenth, Fifth, Sixth

JEL Classification: H10, H11, H19

working papers series