Welcome back to the third article in this series. There are a few points that I’d like to make at the start before resuming.
First, as someone asked, one of the points of this series of articles is that there is no “correct” method of adjudicating disputes at the Supreme Court. That was the reason that I ran two articles on the methods of interpreting the Constitution before coming back to this discussion on unenumerated rights. The U.S. Constitution was an experiment: a “return” to a method of rule that had absolutely no counterpart in the history of the world at the time it began.
The only real models that the Founders could turn to were the Athenian democracy in Socrates’ time and the Roman republic before Julius Caesar. Since Caesar, the world had generally lived under some variant of a feudal monarchy or a totalitarian dictatorship. Yet the Founders knew that adopting either the Athenian or Roman model had serious drawbacks. After all, the Athenians had executed Socrates for telling the faltering government that it was following a mistaken strategy — and shortly thereafter, Athens was conquered by its enemies for some of the very reasons that Socrates cited. And from the beginning, Rome’s republic was more like an oligarchy run by the rich and powerful, which was very different from the “everyone has a voice” Athenian model. So the idea of a “democratic republic” was novel. Could it even work?
As I noted, the idea of the Supreme Court in the Constitution was originally James Madison’s, and then supported by his friend and advisor Thomas Jefferson. Yet the true visionary who created the modern Supreme Court and its place in American society was Jefferson’s “frenemy” cousin John Marshall. Part of Marshall’s brilliance was that he was the last prominent member of the Federalist Party in American politics, and the Democratic-Republicans (Jefferson and Madison’s party) had their own prominent legal thinker in Joseph Story. But instead of becoming rivals like Marshall and Jefferson, Marshall and Story worked together to carve out a unique and co-equal role for the Supreme Court. Their vision is documented in Story’s 1833 three-volume opus Commentaries on the Constitution of the United States (which was dedicated to Marshall).
Basically, they made up the role of the Court on the fly and fleshed out the vision of a third branch that Madison and Jefferson had had. Jefferson may not have agreed about Supreme Court “supremacy” regarding Constitutional interpretation, but he respected his cousin (even if Jefferson may not have been entirely comfortable around him). The Marshall/Story Court even struggled through its own chaotic version of The Former Guy (Andrew Jackson) and survived. It survived everything until Marshall and Story had both passed on and the next generation, led by Roger Taney — who had no interest in keeping things stable — took over and promptly blew the Union into smithereens.
Yet the vision of Marshall and Story also is not the last word in the role of the Supreme Court. Even though America has a written Constitution, it also has a long tradition, similar to the United Kingdom, of “common law” — law that develops based on precedent (prior case decisions). The problem with the common law is one of the axioms of legal thought: “hard cases make bad law”. What does that mean? Well, sometimes the “equities” (which we can roughly equate with what’s fair) don’t match the legalities (which we can roughly equate to the letter of the law).
Often courts stick with the letter of the law. After all, that is the entire basis of the originalist / textualist movement. But sometimes courts decide cases based on the equities (as Justice Sotomayor, who described herself as a “wise Latina”, promised to do during her congressional hearings). And that decision becomes precedent for future decisions. What is the correct balance between legalities and equities? Who knows? Is there one? But the current trend is toward legalities and away from equities. Basically, that position can be simplified to this axiom: if the law comes to an answer that you don’t like, you should be working to change the law instead of expecting a court to come to the rescue.
And the only thing that’s certain is that, as always, the pendulum will swing too far in that direction, and there will be a drive for more equity and less legality. But there is always the hope that maybe we’ll get the balance right this time. Of course, the hope that we’ll get the balance right seems a little forlorn in an era of Biden and Trump — but, as another saying goes, hope springs eternal.
And now back to “substantive due process”, which we noted that the Supreme Court had declared dead and buried in 1963.
Lochner gives way to Carolene Products
The decision in West Coast Hotel v. Parrish (1937), which began the reversal of the Lochner doctrine, was issued three weeks after President Franklin Roosevelt proposed his infamous court-packing plan. Thus, Justice Roberts’ “switched” vote from pro-Lochner to anti-Lochner became known as “the switch in time that saved nine”. Interestingly, though, the vote among the justices on West Coast Hotel had actually taken place three months before President Roosevelt’s speech, and Justice Roberts had opposed the continuing use of the Lochner doctrine then, so the truth is that, despite the cute slogan, no votes were actually changed by the court-packing plan. Another myth exploded!
Justice Roberts burned all of his notes from his time on the Court, but the speculation at the time was that he had been influenced by President Roosevelt’s sweeping re-election the month prior, and so had decided to go along with the popular will. But no one will ever know for certain.
The next year, 1938, the Supreme Court decided U.S. v. Carolene Products Co., a rather obscure case that discussed a presumption in favor of constitutionality for statutes passed by legislatures, but became legendary for its Footnote 4, which took up over two pages — with many citations to prior Supreme Court cases — in setting out three distinct categories of exceptions to that presumption of constitutionality. Here Footnote 4 is in its entirety (citations omitted):
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation[, including] restrictions upon the right to vote, on restraints upon the dissemination of information, on interferences with political organizations, [and] as to prohibition of peaceable assembly.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
So basically Footnote 4 says that there are certain types of statutes which will not have the same rebuttable presumption of constitutionality. In their book An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, law professors Randy Barnett and Josh Blackman describe Footnote 4 as “probably the most important footnote in Supreme Court history. It introduced an entire theory of constitutional law and would be cited by the Supreme Court time and again through the twentieth century.”
But notice what is not even mentioned in Footnote 4: unenumerated rights. Due to Lochner, theories of unenumerated rights were unpopular with the progressives of the New Deal era. And that led directly to the Supreme Court’s disavowal of “substantive due process” in 1963. But change was lurking in the weeds.
Comstockery
In general, the presidential administration of Ulysses S. Grant was far better than its reputation during the 20th century. Grant was not known to be ardently anti-slavery; however, his wife Julia’s family in Missouri had given him a slave in 1858, when Grant and his family were broke, and Grant had freed him by manumission in March 1859, despite the fact that Grant could have sold the slave for over $1,000, money that he and his wife truly needed. Actions speak louder than words, and as a consequence, it should not be a surprise that Grant was president during the most active period of boosting the freedmen in the South during Reconstruction. Also, Grant’s chief advisor, his former military subordinate William T. Sherman, was the brother of an influential Ohio senator who had been one of the founders of the Republican Party (John Sherman), meaning that Grant was on solid footing politically.
So how did President Grant get such a bad reputation? Part of the reason was because Southerners badmouthed him, almost as much as they did Sherman, and there were always a fair number of them in prominent positions. But another part of the reason was that President Grant tolerated an ultra-religious anti-vice crusader named Anthony Comstock, who referred to himself as the “weeder in God’s garden”, among his prominent supporters. Because pornography had been so prevalent among the male soldiers fighting on both sides during the Civil War, Comstock found a ready audience for his crusade, especially among the wives and girlfriends of those former soldiers.
In 1873, Comstock managed to wheedle through Congress the Comstock Law, technically known as the “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”. The Comstock Law made it a crime to send obscenity, sex toys, and any number of other items through the mail, and included in those other items were “every article or thing designed, adapted, or intended for preventing conception or producing abortion.” Comstock actually received a commission from the U.S. Postmaster General to serve as a special agent for the Post Office and help enforce the law named for him — and he continued to serve in that role for 42 years until his death in 1915.
His notoriety spread so far that the British playwright George Bernard Shaw mocked him by coining the word “comstockery” in his 1893 play Mrs. Warren’s Profession. “Mrs. Warren” had been a prostitute and now owned a brothel, and in the play her university-graduate daughter was shocked and offended when she learned this. The play was banned from performance in London until 1902 (after Queen Victoria’s death), and on its first performance in New York in 1905, the police arrested the cast and crew for violating . . . New York State’s version of the Comstock Law.
During the twenty years after Comstock’s death, the federal Comstock Law was judicially overturned. But many states, including Connecticut as well as New York, had passed their own version of a Comstock Law around the same time (1879 for Connecticut), making the use and sale of affected items illegal in the state. Overturning the federal law had no effect on the state laws. And one thing about the state Comstock Laws was that opposing them marked a politician as an enemy of God and conventional morality. In two states, Connecticut and Massachusetts, the state Comstock Laws were still in effect almost 100 years later, in the second half of the twentieth century.
However, the laws faded from use. Planned Parenthood opened a clinic in Hartford, Connecticut in 1935 and tried to bring legal actions to overturn the laws, but because they were generally not being enforced, and so no one was being arrested for violating the Connecticut Comstock Law, courts simply dismissed these cases as moot (that is, cases that were not presenting a viable issue for decision), such as 1961’s Poe v. Ullman, dismissed by the Court 5-4 because the plaintiffs had neither been charged nor threatened with prosecution.
Dissenting from the dismissal of Poe, Justice John Marshall Harlan II (grandson of the Justice John Marshall Harlan who dissented in Plessy v. Ferguson) wrote:
(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.
Everyone who has read this far in this series of articles recognizes this “continuum” argument: unenumerated rights applied through substantive due process! But wait! Didn’t the 1961 Court disfavor that argument and two years later declare it dead and buried?
Indeed, it did. Justice Harlan wrote a solo dissent in Poe. Three other justices dissented (Douglas, Stewart, and Black), but none of them concurred in Harlan’s dissent. Two years later, Justice Harlan also wrote a solo concurrence in the result only in Skrupa, the case that declared substantive due process to be dead, so he clearly didn’t sign on to its demise. However, the opinion in that case was written by Justice Black, and all of the other seven justices signed on (Chief Justice Warren, and Justices Douglas, Stewart, Brennan, Clark, White, and Goldberg). Justice Harlan stood alone in its defense.
Or so it seemed.
Penumbras and Emanations
The people behind the Poe case were Estelle Griswold, the director of the Planned Parenthood League of Connecticut (and no relation to the then-dean of Harvard Law School and future Solicitor General of the U.S., Erwin Griswold), and Yale medical professor Lee Buxton. Since their case had narrowly failed due to lack of prosecution, they decided to make sure they were prosecuted the next time, making a major public announcement that Yale Medical School and a local New Haven hospital would immediately begin to provide contraceptive advice to patients and that Planned Parenthood would open a new family planning clinic in New Haven near Yale. Nine days after the clinic opened (and about six months after the dismissal of Poe), they both were arrested, and their subsequent convictions (accompanied by a $100 fine each) were affirmed by the Connecticut Supreme Court in 1964, overcoming the “mootness” issue. And so Griswold v. Connecticut made its way to the Supreme Court.
None of the justices supported this remnant of the Comstock Laws. Yet on what basis could the Supreme Court intervene? Looking at the test laid out in Carolene Products, there was no specific prohibition in the first ten amendments that the Connecticut law violated, it didn’t interfere with political processes, and it wasn’t directed at a religious, national, or racial minority. Thus, the Connecticut Comstock Law had a presumption of constitutionality, at least if the Supreme Court was being governed by its precedents, and everyone except Justice Harlan had already disavowed substantive due process.
But the 1965 Court didn’t care. By a 7-2 vote, it struck down the Connecticut law as unconstitutional. Justice Harlan wrote another solo concurrence and expressly cited the Due Process Clause of the 14th Amendment: unenumerated rights applied via substantive due process. Interestingly, Justice White also wrote a solo concurrence and cited to the same authority, although without wholeheartedly embracing it in the same way that Justice Harlan had.
But the other five members of the majority signed on to an opinion written by Justice Douglas, who would end up passing Justice Field (the principal dissenter in The Slaughter-House Cases) to be the longest-serving member of the Court. Justice Douglas remembered the precedent of the Court, especially Carolene Products and Skrupa. He had no intention of trying to bring back unenumerated rights as core Constitutional rights. Instead, he wrote (citations omitted):
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish [and other cases]. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation. . . .
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See [Justice Douglas’s dissent in Poe]. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Penumbras! Emanations! Zones of privacy! Although Justice Douglas did not leave the Court until he had already become senile, and so he left no post-term notes about his reasoning, it seems clear that the intent of this impressionistic language is to make a colorable case under Carolene Products that rights protected under the first ten amendments had been violated. Three members of this majority (Goldberg, with Warren and Brennan) also argued for a violation of the Ninth Amendment in a concurrence. But, as the mockery of this language spread throughout the legal universe of the U.S., the clear “substantive due process” concurring opinion of Justice Harlan, not the fanciful language of Justices Douglas or Goldberg, became the accepted interpretation of Griswold.
Both of the dissenters in Griswold had no doubt that this was a substantive due process case, and neither were pleased about it. Justice Stewart’s cutting dissent (joined in full by Justice Black) needs to be read in its entirety:
Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.
In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.
We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the "guide" in this case. With that much, I agree. There is no claim that this law, duly enacted by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining "the wisdom, need, and propriety" of state laws. Compare Lochner v. New York with Ferguson v. Skrupa. [Justices] HARLAN and WHITE to the contrary,
"[w]e have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. It has not even been argued that this is a law "respecting an establishment of religion, or prohibiting the free exercise thereof." And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of
"the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
No soldier has been quartered in any house. There has been no search, and no seizure. Nobody has been compelled to be a witness against himself.
The Court also quotes the Ninth Amendment, and [Justice] GOLDBERG's concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.
What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
At the oral argument in this case, we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect he standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
In one of his footnotes, Justice Stewart also challenges Justice Douglas’s attack on the religious aspects of the Comstock Laws (the argument that Justice Douglas had made in dissenting in Poe):
To be sure, the injunction contained in the Connecticut statute coincides with the doctrine of certain religious faiths. But if that were enough to invalidate a law under the provisions of the First Amendment relating to religion, then most criminal laws would be invalidated. See, e.g., the Ten Commandments.
Justice Black, who had been a member of the Carolene Products majority on 1938, also dissented (joined by Justice Stewart) to attack this back-door attempt to squeeze substantive due process back into the constitutional law despite the clear standards of Carolene Products that forced it out.
A right to be let alone?
But where did this right to privacy cited by Justice Douglas and endorsed by the majority of the Court come from? Justice Washington, writing about unenumerated rights in Corfield v. Coryell (1823), didn’t write about anything resembling it. In fact, something resembling a right to privacy was never described in law literature until 1890, in an article in the Harvard Law Review written by Samuel Warren and future Supreme Court justice Louis Brandeis, entitled The Right to Privacy.
But Warren and Brandeis saw their right to privacy — which they described as “a right to be let alone” — not in terms of a libertarian perspective (“keep your nose out of my business”) but rather in terms of what is now referred to as a right of publicity (“you can’t profit off my image”) combined with a freedom from tabloid journalism (“don’t gossip about me”). Contemporary commentators said that Brandeis was infuriated about the growth of “yellow journalism”, which had even spread to the gossip columns on the society pages . . . a place where the Brandeis family and their friends could frequently be found. [Perhaps they should just have termed the stories “fake news”.]
This is not the context for the right of privacy used by Griswold, which is more about the libertarian perspective of preventing an intrusion into private activities. There is a hint of this meaning in Article 12 of the Universal Declaration of Human Rights adopted by the United Nations in 1948, which states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Yet how does this become an unenumerated Constitutional right? Well, in part, that may have been why it wasn’t initially evaluated as one (except by Justices Harlan and White). But did Justice Douglas actually think of it as a constitutional right? It doesn’t seem so. Instead, he was worried about . . . well, I’ll let him speak for himself:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?
Where does this concern come from? Nothing about the law creates a Fourth Amendment issue about searches, because it doesn’t include any language giving permission for searches. In fact, that was the main reason that Justice Stewart had called the law “obviously unenforceable, except in the oblique context of the present case”.
It seems clear from this babbling that Justice Douglas simply saw a law that was, in Justice Stewart’s words, “uncommonly silly” and decided that it had to go. Perhaps the majority also wanted to create a bold new world. But there doesn’t seem to be one iota of interest in the actual Constitution in the majority opinion. Or, as Justice Black, who was generally considered a textualist, wrote in his dissent:
There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe -- except their conclusion that the evil qualities they see in the law make it unconstitutional. . . . I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to. invade it unless prohibited by some specific constitutional provision.
But the case stood. And seven years later, in a pre-arranged challenge over the distribution of contraceptive foam set up against the Massachusetts Comstock Law by pro-abortion activist Bill Baird (who gave away a sample after a lecture at Boston University), a 6-1 majority in a case entitled Eisenstadt v. Baird (1972) extended the “zone of privacy” regarding birth control beyond married couples to unmarried couples as well. The Massachusetts Supreme Court had said that Baird’s conviction rested on his status as a “distributor” and not on “the marital status of the recipient”. However, in this case, the majority opinion, written by Justice Brennan, rested its claim on the Equal Protection Clause of the 14th Amendment, not the Due Process Clause:
If, under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that, in Griswold, the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Does a frog boil? How about a Court?
One of the oft-told cautionary tales is the “boiling frog”, as described by Wikipedia:
The premise is that if a frog is put suddenly into boiling water, it will jump out, but if the frog is put in tepid water which is then brought to a boil slowly, it will not perceive the danger and will be cooked to death. The story is often used as a metaphor for the inability or unwillingness of people to react to or be aware of sinister threats that arise gradually rather than suddenly.
Is it true? Again, per Wikipedia:
While some 19th-century experiments suggested that the underlying premise is true if the heating is sufficiently gradual, according to modern biologists the premise is false: a frog that is gradually heated will jump out.
So, if this is false, why is the tale so popular? Perhaps it’s because people, unlike frogs, actually do this on a regular basis. For example, consider the Supreme Court and abortion jurisprudence.
In 1972, the Supreme Court had just issued an opinion in a case featuring one of America’s most prominent abortion activists, with a six-member majority stating that individuals must be free from “unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Well, what might be even more proximately connected to the decision whether to bear or beget a child than birth control? How about abortion?
And so the Court jumped into Roe v. Wade (1973) and its companion case Doe v. Bolton (1973) with both feet, a leap it might not have taken had it not been influenced by the positive reactions to its previous “privacy” cases. But a number of changes in the Court had taken place since the time of Griswold, and the current membership was not wedded to the Court’s disavowal of Lochner and of substantive due process, even though the Skrupa decision was handed down just ten years previously. So much for stare decisis. Instead, the majority opinion found that the right of privacy was “founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action”.
And so it was that substantive due process returned to Supreme Court jurisprudence. In fact, in his concurrence, Justice Stewart, who had dissented in Griswold over the Court’s attempt to pretend otherwise, now expressly wrote (citations omitted):
In 1963, this Court, in Ferguson v. Skrupa, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As [Justice] Black's opinion for the Court in Skrupa put it:
"We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
Barely two years later, in Griswold v. Connecticut, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. * * * * *
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As recently as last Term, in Eisenstadt v. Baird, we recognized
“the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. * * * * *
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
And the frog boiled.
The only dissenters in Roe and Doe were Justice White, who had also acknowledged the substantive due process issue in Griswold, and Justice Rehnquist. Justice White’s dissent (joined by Justice Rehnquist) was simple but foreshadowed the next 49 years of debate:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. . . .
In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
In his dissent, Justice Rehnquist went farther and took aim at the entire “right of privacy” concept (citations omitted):
I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court [in a 1967 case] has referred to as embodying a right to privacy.
If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of [Justice Stewart] in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
I’ve written this much and still haven’t touched on Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Next time.
Be seeing you.