Benjamin P. Hayek (University of Iowa) has posted Marriage, Procreation, and Incarceration: A Defense of Common Sense, Federalism, and the Constitution on SSRN. Here is the abstract:
The purpose of this essay is to examine the neglected legal history underlying the purported existence of this particular unenumerated fundamental constitutional right, with a focus on the underlying jurisprudence of the cases leading up to the contemporary cases of Goodwin and Gerber - a rich history that is surprisingly ignored and recklessly cited by virtually all of the contemporary scholarship criticizing the outcomes of both Goodwin and Gerber. Part II of the essay examines the initial forays of the United States Supreme Court into the controversial area of unenumerated fundamental rights in general, focusing on the history and underlying rationales of two key cases, Skinner v. Oklahoma and Loving v. Virginia. Part III examines two more cases in the Supreme Court's development of unenumerated fundamental rights, Zablocki v. Redhail and Turner v. Safley, and focuses on the difficulties of the Justices to conceptualize the unenumerated "fundamental right to marry." Part IV closely analyzes the rationales of two United States Courts of Appeals in their respective struggle with the concept of unenumerated fundamental rights, focusing on both sides of the argument. Finally, Part V applies both principles of federalism and good common sense to the unenumerated fundamental right to procreate and, accordingly, defends the outcomes of both Goodwin and Gerber.
