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Constitutional FictionsA Unified Theory of Constitutional Facts$
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David L. Faigman

Print publication date: 2008

Print ISBN-13: 9780195341270

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195341270.001.0001

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Facts in Constitutional Cases

Facts in Constitutional Cases

(p.1) Chapter 1 Facts in Constitutional Cases
Constitutional Fictions

David L. Faigman

Oxford University Press

This chapter provides an introduction to the pivotal role facts play in both the interpretation and application of the Constitution. It considers two basic areas of the Supreme Court's modern jurisprudence. These two areas concern the profound issue of defining “human life”, with the first concerned with its start and the second its end. In Roe v. Wade and its progeny, the Court avoided the question of when human life begins and instead identified when “meaningful life” begins, which it established at “viability” (i.e., the time when a fetus could survive on its own). In Cruzan v. Director, Mo. Dept. of Health, in contrast, the Court avoided the question of the meaning of “meaningful life,” and opted to uncritically accept the State's definition of when human life ended. These examples well illustrate how facts are an integral component of defining and applying the Constitution “to the various crises of human affairs”.

Keywords:   Constitution, constitutional facts, Supreme Court, Roe v. Wade, Cruzan v. Director, Mo. Dept. of Health, abortion, assisted suicide, viability, meaningful life

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