Preface

1. Supreme Court cases declaring conduct outside the states' legislative authority have often closely divided the Court and have been portrayed as generally involving a narrow range of activity protected under more explicit constitutional provisions, rather than the Fourteenth Amendment's due process clause. See generally Bowers v. Hardwick, 478 U.S. 186 (1986) (collecting some relevant cases and rejecting a due process challenge) (majority opinion expresses concern over undermining of Court's authority when it extends substantive rights under due process clause); Patterson v. New York, 432 U.S. 197 (1977) (due process claim regarding burden of proof problem arising from legislative redefinition of traditional crime) (majority recognizes states have wide leeway to define crimes, with practical effect of affording reallocation of burdens of persuasion). See also the opinions involving the claim that the Eighth Amendment's cruel and unusual punishment clause prohibits the criminalization of a particular matter, for example, Robinson v. California, 370 U.S. 660 (1962) (criminalization of status of drug addict prohibited), a holding that the Court refused to extend in Powell v. Texas, 392 U.S. 514 (1968) (rejecting cruel and unusual punishment claim and refusing to constitutionalize an alcoholism defense to a state charge of being found drunk in a public place).