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.