North Dakota

  • March 29, 2013

    by Jeremy Leaming

    Tea Party activists and many of today’s Republican politicians claim to loathe big government. They say they want a limited government role in our lives. But when it comes to the autonomy of women or privacy rights of gay couples, many of those same activists and politicians clamor for government interference.

    A few weeks after Arkansas lawmakers adopted one of the nation’s most restrictive measures on abortions, banning them at 12 weeks of pregnancy; North Dakota Gov. Jack Dalrymple signed into law an even more outlandish attack on abortion. The law forbids abortions once a fetal heartbeat is detectable, as The New York Times reported earlier this week. Fetal heartbeats, the newspaper noted can be detected “as early as six weeks” by using an invasive procedure, a transvaginal ultrasound.

    In his statement announcing signing of the bill, HB 1456, into law, Gov. Dalrymple said “the likelihood of this measure surviving a court challenge remains in question,” but it is nevertheless “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

    Discovering the boundaries of Roe is a euphemism for lawmakers’ efforts to topple the landmark Supreme Court opinion. State lawmakers have been on a tear over the last few years passing measures aimed at making it incredibly difficult for women to obtain abortions, especially for women with little means to travel long distances to find a physician willing and able to perform abortions. It is not enough that lawmakers have crafted laws that force women to listen to government propaganda about the alleged dangers of abortions or undergo invasive medical procedures; they want the ability to bar women from receiving abortions.

    In Roe, the high court held that the Constitution’s protections of privacy include the decision to have an abortion. The Roe Court only said that states could regulate that right at the point of viability, about 24 weeks.

  • September 15, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. By Martha F. Davis, Professor of Law, Northeastern University School of Law.


    The national Constitution is a singular document, but it is not unique. All fifty states of the U.S. and Puerto Rico have their own constitutions, some of which -- through text or interpretation -- stake out approaches that are very different from the federal document. It is worth thinking about the alternative paths that these state documents take, and the possibilities that they raise, as we celebrate and critique the national Constitution on this Constitution Day.

    This entry focuses on one area of significant difference between state and federal constitutions: their treatment of economic and social rights.

    The national Constitution addresses economic and social rights prominently but with little specificity. The Preamble states that an overriding purpose of the U.S. Constitution is to “promote the general welfare,” indicating that issues such as poverty, housing, food and other economic and social welfare issues facing the citizenry were of central concern to the framers. However, the Bill of Rights has been largely construed to provide procedural mechanisms for fair adjudication of those rights rather than carving out claims on the government to ensure that individuals actually have any social and economic assets to protect. Efforts to convince courts of alternate constitutional interpretations have generally failed. The Supreme Court has ruled, for example, that while the due process clause of the 14th amendment ensures fair processes for welfare recipients, there is no underlying constitutional right to a minimum standard of living. Similarly, the Supreme Court has not found a general right to education derived from the more explicit constitutional guarantees of political participation and equal protection that might be deemed to presuppose an educational baseline.

  • January 25, 2010
    Guest Post

    By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

    The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

    When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

    The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

    During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

    Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.