The Originalist Case For Why The Florida Constitution’s Right Of Privacy Protects The Right To An Abortion

Since the U.S. Supreme Court overruled Roe and Casey and returned the issue of abortion to the states, attention has shifted to state constitutions: Do state constitutions protect the right to an abortion? Florida is one of the few states whose constitution contains an explicit right of privacy. That provision, Article I, Section 23, was adopted by the voters in 1980. It states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Not a decade later, the Florida Supreme Court held that section 23 protected the right to an abortion, and the court reaffirmed that holding in the decades since. But the Florida legislature recently passed, and the governor signed, a surely unconstitutional law that largely bans abortions after fifteen weeks—setting up a challenge to the court’s abortion precedents. The state and prolife activists believe that those precedents are wrong. Invoking originalism, they say that the original meaning of section 23 was that it protected only the right to informational privacy—the right to control personal information—not the right to an abortion. The larger implication of their argument is that Section 23 does not protect the right to decisional privacy, which is a person’s right to make certain kinds of important decisions.

Is that right? I seek to answer that question here by applying the principles of public meaning originalism, the dominant version of originalism. After explaining the basics of originalism, I engage in a careful, phrase-by-phrase analysis of Section 23’s text. Then, I examine the history of Section 23 at length, covering the general background, an earlier and unsuccessful attempt in 1978 to amend the Florida Constitution to add a privacy right, the successful proposal in 1980 that resulted in Section 23, and post-approval history. Applying the principles of public meaning originalism to assess the historical evidence, my conclusion is that the original understanding of Section 23 was that it would protect informational privacy and decisional privacy, including the right to an abortion.

Is Originalism A Fandom?

Originalism is more influential than ever in the federal judiciary and legal academia in 2023, yet it presents as many puzzles as ever, too. What significance should we attribute to Justice Kentanji Brown Jackson’s relatively favorable remarks about originalism? Should the U.S. Supreme Court’s decision in Dobbs be viewed as originalist? Why would some scholars desiring to defend progressive and inclusive case law seek to recharacterize evolving contemporary norms as a product of historically grounded originalism? How should we conceive of originalism when self-described originalist scholars maintain that their version of theoretical originalism should be dissociated from the methods or analyses put forward in practice by self-identified originalist judges? From an interdisciplinary perspective provided by scholarly work in the academic field of fan studies, dynamics like these are not so puzzling after all.

For at least the past half-century, originalism has played a prominent role in U.S. constitutional theory. For a quite similar length of time, Star Wars has been a popular culture phenomenon in the United States. Both involve highly contestable issues of interpretation of an iconic text, including the scope and solidity of its initial meanings and the evolution of the text itself over time. Both involve publicly prominent historical narratives that place disproportionate emphasis on certain individuals and influences, nostalgia for an inauthentic past in service of present objectives, and an undercurrent of backlash against changes that bring more inclusion and pluralism. Both demonstrate, in their own ways, the inevitability of interpretive disagreement and the impossibility of divining a singular objectively provable meaning when the text at issue not only contains numerous generalities and indeterminacies, but also carries a profound emotional, cultural, and personal significance to its interpreters and the broader community in which their interpretive analysis occurs. Consequently, while it may be more intuitive to associate a global media franchise like Star Wars with analysis of fandom, the dynamics present in originalism have many significant parallels. When viewed through the lens of this comparison, we can ask the question: is originalism a fandom?

Vega V. Tekoh: A Missed Opportunity To Protect Miranda

In Vega v. Tekoh, following a violation of Tekoh’s Miranda rights, Tekoh brought a 42 U.S.C. § 1983 civil rights claim against the offending officer and the officer’s department, citing a Fifth Amendment violation. The Supreme Court denied the claim and held that the Miranda rules do not implicate the Fifth Amendment, but rather are prophylactic. The Court proclaimed a Miranda violation cannot, alone, be a basis for a § 1983 claim. Since the 1966 Miranda decision, the Court has not provided any meaningful deterrence of Miranda violations, but rather has denigrated Miranda’s protections. Vega was a missed opportunity to reinforce Miranda and bring Miranda’s rules within the ambit of the Fifth Amendment. This Article critically examines the Court’s Vega decision, from its disregard of its own precedent to its disingenuous analysis of the cost-benefit of reinforcing Miranda’s rules.

Face Value: A Proposal for Federal Regulation of Facial Recognition Technology Companies

The lack of federal regulation of commercial facial recognition technology (“FRT”) companies, which use “face mapping” to capture and store Americans’ biometric information, places the onus on states to protect citizens’ most sensitive data. And with the recent prevalence of large-scale data breaches, Americans must ask when—not if—their biometric data will be exposed. Since onset of the COVID-19 pandemic, government agencies have increasingly required citizens to use these companies to access services like unemployment or social security benefits, essentially resulting in a citizen’s “forced consent” to the companies’ biometric handling policies. Undeniably, FRT has become a vital part of society. Yet, without federal regulation of FRT companies’ biometric practices, third-party collection of biometric data on behalf of the government leaves Americans vulnerable to irreparable harm.

This Article addresses the benefits of FRT as well as the potential consequences for Americans if FRT is left unregulated. The Author focuses on the governmental use of commercial FRT companies—specifically, commercial FRT companies Clearview AI and ID.me. The Author explores current state biometric laws, privacy laws, and the Federal Trade Commission’s role in enforcing federal privacy regulations pertaining to biometric information. Finally, the Author recommends federal legislation that creates a national biometric safety board to ensure the handling and security of an individual’s biometric information.

“Providing for Cooperation Between Private Adoption Entities and the Department of Children and Families?” When Legislative Intent Falls Short

Biological parents make the difficult choice to voluntarily place their child for adoption for a variety of reasons. Florida’s adoption intervention statute aims to honor a parent’s choice while promoting the child’s best interest by providing permanency. Under the adoption intervention statute, a parent whose child is removed from his or her physical custody by the Department of Children and Families has the right to choose a private adoption instead of working a case plan for reunification. While adoption is not the first, or best, choice for every situation, there are many benefits to electing a private adoption instead of allowing the child to be adopted through, or potentially languish in, Florida’s foster care system.

Private adoption through adoption intervention allows a parent to regain a sense of control and play an active role in the child’s permanency by choosing an adoptive placement for the child. Although a seemingly straightforward process, adoption intervention has caused frustration for the court and parties involved. The statute’s current state provides insufficient guidance to the court. The working relationships between the main parties involved in an intervention proceeding are sometimes complicated, on one or more sides, by over-zealous representation and mutual skepticism about each other’s position as to the purposes of the intervention statute, how it should be interpreted and applied by the court, and the child’s best interest. As a result, courts across the state of Florida interpret and apply the statute differently. Consistency is not easily found, even within the same circuit. This Article identifies issues within the current structure of the adoption intervention statute and its application, provides an overview of the competing interests, and proposes solutions to promote cooperation between all parties involved to come closer to a mutual understanding of navigating adoption interventions.

Conflicting Parameters of Code Enforcement Fines and Liens Pursuant to Chapter 162 of the Florida Statutes, Timbs, and the Eighth Amendment: How Much Is Too Much?

The Excessive Fines Clause of the Eighth Amendment of the United States Constitution bans federal, state, and local governments from imposing excessive fines in civil and administrative proceedings. Throughout Anglo-American history, ii excessive fines in civil and administration proceedings has been “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” as a safeguard to rein in the government’s power to obtain excess payments in cash or in kind as punishment for an offense. In United States. v. Bajakajian, the Court ruled that a fine was excessive and in violation of the Excessive Fines Clause of the Eighth Amendment if it was “grossly disproportional to the gravity of the defendant’s offense.” More recently, the Court in Timbs v. Indiana held that the Excessive Fines Clause of the Eighth Amendment is incorporated into the Fourteenth Amendment’s Due Process Clause, making federal law applicable to state and local governments. Timbs suggests that a new day has come to scrutinize the size of fines and forfeitures in determining whether the size of fines may be in violation of the Excessive Fines Clause of the Eighth Amendment. While Bajakajian supports the proposition that the legislature is the initial branch of government that determines ranges of fines, it is incumbent that the legislature does not violate the Bill of Rights, which now includes the Excessive Fines Clause of the Eighth Amendment. Timbs embraces all-inclusive language that legislative enactments of fines that are “out of accord with the penal goals of retribution and deterrence” and that yield “fines [as] a source of revenue” must be scrutinized.

Translating the gravity of an offense into a monetary figure is not a simple task. By virtue of Chapter 162 of the Florida Statutes, the legislature has enacted statutes that delegate to local governments and their Special Magistrates and Code Enforcement Boards the right to decide whether code violations exist, and if so to impose unlimited cumulatively aggregated per diem fines that become a lien on an owner’s real property. After Timbs, the size of fines should matter and must be based on the gravity of a violation and whether the violation has caused harm or damage to the neighborhood. Therefore, the legislature, the quasi-judicial body, and ultimately the courts need to consider size of fines without strictly relying on the deferential doctrine that removes from courts the ultimate decision-making power to determine whether the legislature’s political judgment is justified in applying substantial economic sanctions.

One size does not fit all violations, and without considering the gravity of a violation and the application of the Excessive Fines Clause of the Eighth Amendment, the harm and damage caused by a code violation needs to be considered rather than assumed in any fact intensive analysis to determine if fines violate the Excessive Fines Clause of the Eighth Amendment. Otherwise, if local governments attempt to fit every violation into a one size fits all category, the legislature and local governments’ Special Magistrates and Code Enforcement Boards will have free rein in deciding the size of a fine without regard to harm and damage and will permit local governments’ to impose economic sanctions from private citizens as a source of revenue to help finance local governments code enforcement departments in lieu of imposing state and local taxes as provided by law.

For too long, the Excessive Fines Clause of the Eighth Amendment has been one of the Bill of Rights least followed protections, even though it was enacted to curb “the government’s power to extract payments, whether in cash or in kind.” After Timbs, the legislature and local governments are obligated to follow this important decision so that excessive fines are not assessed. Until and if the legislature and ultimately the courts consider the impact of Timbs, it is now up to local governments to consider reductions of substantial aggregated fines. Some local governments have attempted to comply with the Excessive Fines Clause of the Eighth Amendment by reducing the aggregated and accumulated fines by as much as 85% to 90% as long as payment is made within a set time period and there has been compliance with code violations. This is an affirmative step toward compliance with the Excessive Fines Clause of the Eighth Amendment and Timbs.

While Chapter 162 of the Florida Statutes allows local governments to reduce code enforcement fines and liens, it is not mandatory. It is time for the legislature and ultimately the courts to consider the impact of Timbs and consider curbing fines and liens to comply with the Excessive Fines Clause of the Eighth Amendment. As legal scholars and the courts debate the impact of Timbs and its directive to the legislature, local governments, and the courts to scrutinize fines and liens so that there are limitations on the power of the government to impose excessive economic sanctions, the question as always is: how much is too much?

Evacuation and Our Growing Population: County Clearance Times and Comprehensive Plan Consistency in Coastal High-Hazard Areas Under Florida Statutes Section 163.3178(8)

Florida may be known as the Sunshine State, but ironically is also the state most likely to be hit by a hurricane. If you live anywhere near Florida’s coastline, you’re familiar with the dreaded “cone of uncertainty” and what it means to find yourself in it. Do you stock up and hunker down, or do you get the hell out of Dodge? Your decision likely depends on how long you think it will take to evacuate. What if you were told that it would take up to three and a half days to get to safety? Would that affect your choice?

The Regional Evacuation Studies published by the Florida Department of Management Services are the basis by which evacuation times are determined under state law, and they paint a dire picture, particularly for counties along our southern coastlines. The problem is that these evacuation times have no basis in reality because the assumptions underlying the data are patently unrealistic in themselves. These exaggerated evacuation times can create distorted expectations on the part of potential evacuees, perhaps causing people to stay put when they should go. But the clearance times also have major implications on local land planning decisions under Section 163.3178 of the Florida Statutes.

This Article discusses evacuation times in the context of a recent land use case, arguing that the state-mandated clearance times are arbitrary, produce needlessly inflated results, and should be abandoned in favor of an approach that simply requires developers to fully mitigate their impacts.

Regulating And Enforcing Speaker Rights In The Public Forum

This Article provides a practical examination of public forum law including effective enactment, enforcement and defense of laws, rules and policies regulating First Amendment activity, challenges that are raised against such regulation, and applicable defenses to these challenges. Initially the classes of public fora are considered by defining and distinguishing between each in order to provide a foundation to guide practitioners. The author supports the court created interpretation providing four distinct public forums: traditional, designated, limited and non-public forums, each allowing distinct levels of government regulation. The court created doctrine of government speech is also reviewed to provide a more complete structure of consideration when regulating in this area. These legal standards are examined in their practical environment comparing court decisions made in the context of parks, sidewalks, government buildings and publicly sponsored events. The concepts are finally applied to challenges raised in response to the limiting government action including recent case law controlling retaliation claims against government actions alleged to violate individual First Amendment rights through enforcement actions imposed.

A Tale of Two Disciplines: Legal Writing—A World of Haves and Have-Nots

In his article, A Curmudgeon’s View of the Multi-Generational Teaching of Legal Writing, Professor Jan Levine, bemoans the current state of Legal Writing as an academic discipline. He decries the short memory of its members and organizations and a perceived lack of depth of research in its scholarship. He alleges a tendency of the community to avoid criticism of legal writing colleagues with respect to both pedagogy and scholarship. Further, Professor Levine complains that those writing faculty who achieve tenure no longer have a primary identity as legal writing faculty, something he finds problematic. His overall argument is that generational differences are the root cause of many of these problems and that the younger generations’ ways of approaching matters are necessarily inferior. However, this argument ignores that lower-ranking faculty status and institutional barriers, not generation, are at the heart of these concerns.

Professor Levine and I teach at the same school; he directs the legal writing program and supervised me as the director until just this year, when I stepped away from teaching legal writing due to administrative duties. The fact that I feel comfortable enough to write this response to his well-received article is proof that status matters. An untenured professor, even one with 405(c) status, could not do this with confidence and security. I am conscious that Professor Levine is a major reason legal writing faculty (including me) have tenure and status at Duquesne Kline Law and elsewhere. He deserves many accolades for his previous work, but Curmudgeon’s View misses the mark.

Different generations (and different individuals) bring a variety of strengths to the legal writing field, to both teaching and scholarship, and that diversity is a strength, not a weakness. To the extent Professor Levine’s observations critical of the legal writing field are accurate, it is a function of the lack of status and job security available for the majority of legal writing faculty rather than “naivete,” “incomplete efforts,” or “lack of research.” In this essay I explore several concepts—high turnover, burnout, significant gender disparity, and uneven mentoring of faculty—that contribute to the issues Professor Levine mentions.

The Unending Conversation: Gut Renovations and No-Demo Renos

Elizabeth Berenguer, Lucy A. Jewel and Teri A. McMurtry-Chubbs’ Gut Renovations made an extraordinary contribution to the conversation by showing how traditional legal rhetoric, especially syllogistic reasoning, perpetuates bias and injustice, and proposed looking to non-Western rhetorical forms as an alternative. Essential to the argument is the idea that legal rules and the legal syllogism have great power to determine the outcomes of cases.

We agree that law is biased and that IRAC and rule-based reasoning often furthers that bias. But we argue that doesn’t have to be the case. IRAC and legal rules can be far less constraining and outcome determinative than they first appear. And if IRAC and rules are malleable—not fixed—they can be repurposed as instruments of change.

Sometimes a structural foundation is so faulty that the house must be torn down to the studs. But other times a house can be transformed through no-demo renos by using the structure that exists to create something new and beautiful. This Essay argues that in addition to Gut Renovations’ call to look to other forms of rhetoric to de-bias our perspectives and our law, we also must envision ways to achieve change through the structures of traditional rhetoric. We need to reform traditional legal rhetoric not just from the outside in, but also from the inside out.

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