The doctrine that the liberty protected by the due process clauses of the Fifth and Fourteenth Amendments encompasses more than the procedural rights owed by the government when it seeks to punish someone for a crime.
One of the intents of the framers of the Fourteenth Amendment was to protect the property and contract rights of newly freed slaves from state law. The amendment states that the state shall not take away any person’s life, liberty, or property without “due process of law.” The phrase “due process” usually meant proper legal procedure, especially in criminal law.
The Court’s interest in substantive liberty was rekindled in the 1960’s. On November 1, 1961, the Planned Parenthood League of Connecticut opened a center in New Haven. On November 10, its executive director, Estelle Griswold, and its medical director, Dr. Harold Buxton, were arrested for violating the Connecticut birth control statute. This law, which had been on the state’s books since 1879, prohibited the use of birth control devices and the provision of birth control information. Griswold and Buxton were the first people ever to have been charged under the statute. An earlier attempt to challenge the law had been defeated when the Court refused to take jurisdiction because no one had ever been prosecuted. Griswold and Buxton were convicted and appealed to the Court.
The Court’s opinion in Griswold v. Connecticut
The two dissenters in the case, Associate Justices Hugo L. Black and Potter Stewart, argued that the decision would return the Court to the discredited era of substantive due process in which the justices had written their policy preferences into the Constitution. Black and Stewart pointed out that there was no explicit textual support in the Constitution for the new right of marital privacy. They were particularly perturbed by the majority’s use of the Ninth Amendment, which seemed completely open ended to them and would give the Court limitless authority to define rights beyond the text of the Constitution.
The same right to receive and use contraceptive devices was extended to unmarried persons in Eisenstadt v. Baird
The following year, conception and privacy rights were further extended by the Court in Roe v. Wade
The two dissenters, Justices William H. Rehnquist and Byron R. White, maintained that there is no “fundamental” right to an abortion on demand and referred to the historical tradition in England and the United States of prohibiting abortion. They argued that the Court should defer to the wishes of the majority, at least in the absence of a traditional fundamental right. Roe v. Wade is perhaps the boldest assertion of substantive due process rights by the Court. It has been immensely controversial and has resulted in a great deal of political action in opposition to the Court’s decision and in occasional violence directed at abortion clinics, physicians, and patients. In the years since Roe, the Court has revisited the case often. Although the decree has been modified somewhat, the central holding that a pregnant woman has a right to an abortion on demand in the first trimester remains intact.
At the end of the twentieth century, Roe v. Wade represented the high-water mark of the Court’s protection of substantive liberties. The Court declined to extend the concept to protect homosexual sodomy in Bowers v. Hardwick Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868 when the Fourteenth Amendment …was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. …Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.
Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868 when the Fourteenth Amendment …was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. …Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.
White also pointed out that Griswold, Eisenstadt, and Roe had all spoken to the right to decide whether or not to bear children. This crucial element is absent in Bowers. Four justices Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens argued that the case was really about a “fundamental right to be let alone,” and that the Court’s earlier privacy decisions established just that. Although Bowers is a 5-4 decision, the issue did not appear again before the Court. The Georgia supreme court struck down the statute in question on independent state constitutional grounds in 1999.
The Court resisted attempts to get it to establish substantive rights to die or to assisted suicide. In Cruzan v. Director, Missouri Department of Health
The “new” substantive due process has allowed the Supreme Court to define new individual constitutional rights. So far these have been limited to substantive rights already found in the First Amendment and additional reproductive privacy rights. The doctrine is very controversial because every time the Court limits state power, it is acting in an antimajoritarian way. It is not clear to the public why the right to an abortion is somehow “fundamental” while the “bedroom privacy” argued for in the Georgia sodomy case is not. Nothing appears to illuminate these decisions besides the wishes of the justices. The Constitution itself neither explicitly establishes these rights nor implies them with any clarity. The absence of textual support for these decisions puts perception of the Court’s legitimacy at risk.
John V. Orth’s Due Process of Law: A Brief History (Lawrence: University Press of Kansas, 2003) traces the concept of due process back from its early roots in English history through modern U.S. Supreme Court decisions. The property law and contract clause background of substantive due process is well discussed in The Guardian of Every Other Right: A Constitutional History of Property Rights by James Ely, Jr. (New York: Oxford University Press, 1992) and Polly J. Price’s Property Rights: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003). Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy by Jennifer Nedelsky (Chicago: University of Chicago Press, 1990) provides less technical coverage of some of the same topics. There is a vast literature on the “true” meaning of the Fourteenth Amendment and whether it does or does not “incorporate” the Bill of Rights. The classic argument for the incorporationist position is The Supreme Court in United States History by Charles Warren (Boston: Little, Brown, 1937), while the opposition is best represented by Charles Fairman’s The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (New York: Da Capo Press, 1970). A more recent work suggesting curtailing the judiciary’s role is The Fourteenth Amendment and the Bill of Rights by Raoul Berger (Norman: University of Oklahoma Press, 1989). An argument supporting the Court’s activities may be found in Freedom and the Court: Civil Rights and Liberties in the United States by Henry J. Abraham and Barbara A. Perry (8th ed., New York: Oxford University Press, 2003). Similarly the legitimacy of the privacy decisions and the natural law threads of thought that produced them have engendered enormous comment. One balanced work is The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties by Richard C. Cortner (Madison: University of Wisconsin Press, 1981).
Birth control and contraception
Bowers v. Hardwick
Contract, freedom of
Cruzan v. Director, Missouri Department of Health
Due process, procedural
Eisenstadt v. Baird
Griswold v. Connecticut
Privacy, right to
Roe v. Wade