Fundamental Rights and Constitutional Law

Fundamental Rights and Constitutional Law
Fundamental Rights and Constitutional Law
Description	Fundamental Rights and Constitutional Law

This theme page collects selected fundamental and constitutional rights - in particular with respect to their implementation in the (real-world) Constitution of the United States - which are directly or indirectly mentioned, questioned, or otherwise irrefutably alluded within the story-lines to which this wiki refers.

 See also: Laws in Gilead for details in Gileadean jurisdiction.

Equal Protection Clause

(Also known as: Equality before the law, see e.g. Art. 20 CFR)

Legal Background

The Equal Protection Clause is a clause within the text of the Fourteenth Amendment to the Constitution of the United States. The clause, providing "nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws", is the basis for many court decisions rejecting discrimination against people belonging to various (and variously specified) 'groups'.

Contrasts to Gilead

Gilead denies and undermines this general equality by explicitly specifying distinct social groups called "classes" among the populace and applying tailored jurisdiction and administrative treatment to each class separately. A Gilead official defends this 'constitutional' discrimination since "doing better never means better for everyone, but always worse for some"

Examples of Discriminatory Legal Practice

Degree of Penalty

In Late, a Martha and a Handmaid are caught in a same-sex relationship and accused of "Gender Treachery". While the Martha receives a death sentence, the Handmaid is sentenced to a penal mutilation. The judge confirms the court is "bound" to this distinction. Similar discriminatory practices hold for the prosecution of adultery (see main article).

Privacy and Reproductive Rights

See also: Right to respect for private and family life, Art. 8 ECHR

Fan art, found on Reddit (r/TheHandmaidsTale)

Real-World Legal Situation

The Fourth Amendment to the U.S. Constitution grants citizens to be secure from governmental intrusions into their individual private spheres ("persons, houses, papers, and effects"), while it is prohibited (by the 14th Amendment) to "make or enforce any law which shall abridge" the given "immunities", i.e. to enact a law whose individual compliance could be verified solely by violating the immunity granted by the Fourth Amendment. In that spirit, Court decisions invalidated several state laws that targeted private and reproductive self-determination:

• Intrusions into individual birth control: In 1965, the Supreme Court invalidated a law to ban individual use of contraceptives due to an offense of the Fourth Amendment; in the end, the challenged law would mean a permission to "the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives", as the Court put it. ("Griswold v. Connecticut")
• General ban on abortions: In 1973, the Court invalidated a general legal ban on artificial abortions: As long as the unborn child is not viable outside the mother's body, the termination of the pregnancy cannot be homicide; so a general ban on such a termination is an illegitimate intrusion into personal privacy in terms of U.S.C. amd. IV - evidently, such a ban would imply a permission to examine the body of the suspect to gather evidences for an alleged abortion ("Roe v. Wade"). The 2022 Dobbs v. Jackson Women's Health Organization ruling by the Court found that the rights that are left unenumerated by the constitutional text do not include the right to terminate a pregnancy in contradiction of federal or state law. The Court further found that the legal reasoning behind Roe v Wade had no basis in the customary laws and traditions of the United States.

References from the Story

Before Gilead

In the alternate reality of "The Handmaid's Tale (Series)" and as a means of addressing the fertility crisis, the pre-Gileadean United States enacted some policies with impact on immunities as confirmed by above-mentioned Court decisions, such as making it illegal for a man to undergo a vasectomy, and requiring husbands to formally consent to their wives filling birth control prescriptions.

After the Takeover

Birth control in Gilead is outlawed completely. Moreover, Gileadean authorities may verify the (compulsory) intercourse of a "Ceremony" by examining the Handmaid's abdomen.

Audi Alteram Partem

(See also: Procedural due process doctrine as part of U.S.Const. amends. V and XIV)

The Latin phrase meaning "listen to the other side" is the legal principle that no person should be judged without a fair hearing. Gilead however grants the right to speak out on a charge only to members of certain social classes, like a Commander, an Econowife, or a Guardian, while a Martha and a Handmaid are prevented from manifesting themselves by having their mouths muzzled during trial.

Equal Rights Amendment

See also: Equality between women and men, Art. 23 CFR

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex, seeking to end the legal distinctions between men and women. First introduced in Congress in December 1923, it was eventually approved by the U.S. House of Representatives and Senate in March 1972. Conservative anti-feminist advocacy groups like the Eagle Forum led by Phyllis Schlafly later successfully campaigned against its ratification by state legislatures.

In The Testaments, the Aunts frequent a Schlafly Cafe near Ardua Hall.

Ex Post Facto Law

The fundamental legal principle "Nulla poena sine lege (praevia)" requires that one cannot be punished for doing something that is not prohibited by (applicable) law. Since this principle can easily be evaded by enacting a new law with retroactive effect ("ex post facto"), many state constitutions expressly forbid to enact ex post facto laws, like in Article I (9, 10) of the United States Constitution.

The ban on abortion in Gilead is a retroactive ex post facto law, which means citizens are convicted of having had or performed abortions prior to the rise of Gilead (when abortion was legal to some degree). The regime justifies this violation of the above-mentioned legal principle by likening abortion doctors to "war criminals", saying it does not matter if their acts were legal at the time.

The eventual annulment of second marriages and marriages not performed in Gilead is another example of ex post facto law. Although the Gilead church did not exist before Gilead's creation, and freedom of religion was permitted by the state, the first marriages of fertile married women are eventually annulled on the grounds that they were not performed in the state religion in order to seize these women as Handmaids.