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NCJ Number: 44229 Find in a Library
Title: MORALITY ENFORCEMENT THROUGH THE CRIMINAL LAW AND THE MODERN DOCTRINE OF SUBSTANTIVE DUE PROCESS
Journal: UNIVERSITY OF PENNSYLVANIA LAW REVIEW  Volume:126  Issue:2  Dated:(DECEMBER 1977)  Pages:344-384
Author(s): T L HINDES
Corporate Author: University of Pennsylvania
Law School
United States of America
Date Published: 1977
Page Count: 41
Sponsoring Agency: University of Pennsylvania
Philadelphia, PA 19174
West Virginia University
Morgantown, WV 26506
Format: Article
Language: English
Country: United States of America
Annotation: THE EXTENT TO WHICH GOVERNMENT MAY USE CRIMINAL SANCTIONS TO ENFORCE MORAL VALUES WITHOUT INFRINGING UPON INDIVIDUAL LIBERTIES IS EXAMINED, WITH REFERENCE TO LAWS ON MARIJUANA USE, ABORTION, OBSCENITY, AND SODOMY.
Abstract: COMMON CRIMINAL PROSCRIPTIONS THAT HAVE BEEN FOUND TO BE OR ARGUABLY SHOULD BE REGARDED AS BEYOND THE POWER OF GOVERNMENT TO ENFORCE ARE DISCUSSED, INCLUDING THE POSSESSION OF SMALL AMOUNTS OF MARIJUANA, THE SCREENING AND VIEWING OF OBSCENE FILMS, A WOMAN'S DECISION TO TERMINATE HER PREGNANCY, AND SEXUAL ACTIVITY BETWEEN CONSENTING ADULTS. LIMITATIONS ON GOVERNMENTAL POWER RECOGNIZED BY THE NATION'S JUDICIARY ARE NOTED, AND TRADITIONAL JURISPRUDENTIAL QUESTIONS RAISED BY THE ENFORCEMENT OF MORALITY ARE REVIEWED. AN APPROACH TO CONSTITUTIONAL INTERPRETATION IS SUGGESTED THAT WOULD PERMIT THE GOVERNMENT TO CARRY OUT ITS LEGITIMATE FUNCTION WITHOUT UNNECESSARILY ABRIDGING PERSONAL LIBERTY. IT IS SUGGESTED THAT THE VALIDITY OF A CRIMINAL STATUTE FACED WITH A DUE PROCESS CHALLENGE BE DETERMINED BY THE FOLLOWING TEST: DOES THE CONDUCT PROSCRIBED UNDER THE STATUTE ENTAIL A SUBSTANTIAL RISK OF DIRECT PHYSICAL, EMOTIONAL, OR FINANCIAL HARM TO INDIVIDUALS NOT CONSENTING TO THE CONDUCT IN QUESTION? IT IS ARGUED THAT THE POWER OF GOVERNMENT TO LEVY CRIMINAL SANCTIONS SHOULD NOT BE USED TO IMPOSE THE MORAL VALUES OF THE MAJORITY ON THE REST OF SOCIETY UNLESS THOSE VALUES COINCIDE WITH THE LEGITIMATE FUNCTION OF GOVERNMENT. IN THE CONTEXT UNDER CONSIDERATION, THAT FUNCTION SHOULD BE LIMITED TO PROTECTING THE PERSONS AND PROPERTY OF INDIVIDUALS AGAINST THE TANGIBLY HARMFUL ACTS OF OTHERS.
Index Term(s): Constitutional Rights/Civil Liberties; Jurisprudence; Moral-decency crimes; Right to Due Process; Victimless crimes
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=44229

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