Casey in 1992 in a joint opinion that seemed to confirm an understanding of substantive due process that evolved with popular values. Texas, looked to evolving understandings of essential personal liberty as evidenced by popular consensus.Īlthough Roe remained controversial in legal theory circles, in part for its more expansive understanding of fundamental rights and for the surprising specificity of its trimester framework for reviewing abortion laws, it was upheld in Planned Parenthood v. Yet another approach, suggested in cases like Lawrence v. A more expansive approach, employed in Roe and other cases, looked more to a contemporary assessment of the profound stakes for the individual. A narrower test favored by more conservative justices limited fundamental rights to only those that were clearly set out in the Constitution’s text or would have been regarded as essential at the time the Fourteenth Amendment was enacted in 1868. The justices continued to struggle over which liberties ranked as fundamental. As a result, the court’s doctrine required differentiating “fundamental” liberty interests, for which government interference was presumptively unconstitutional, from ordinary liberty interests, which the government was presumptively free to limit as long as it acted rationally. In future cases, the Supreme Court continued to acknowledge that its heightened protection for privacy rights was a product of substantive due process review while insisting that this was consistent with the rejection of Lochner because it applied only to “fundamental” liberty interests. The Griswold court also emphasized that this right of privacy did not open the door for more aggressive court review of ordinary social and economic regulation. Instead it attributed the protection to a more amorphous “right of privacy” implicit in constitutional guarantees without committing to any one textual source. But it hesitated to describe this protection as substantive due process, given the near-universal rejection of the Supreme Court’s abuse of its role during the Lochner Era. Connecticut, the Supreme Court revived a broader understanding of the Constitution’s protection for individual liberty after striking down a Connecticut law that regulated contraception. Under this “rational basis test,” virtually all government regulation was held to be constitutional. After 1937, the court understood substantive due process to mean only that whenever government interfered with individual liberty, it must act rationally in pursuit of a legitimate state interest. ![]() Under mounting public pressure, the Supreme Court reversed course in 1937 and renounced Lochner’s understanding of substantive due process and the court’s power to second-guess ordinary regulation. ![]() This review was not confined to exceptional areas of individual interest but applied broadly to government regulation of wages, working conditions, the economy, and commercial transactions, as well as to more personal interests, such as parents’ choices regarding education and childrearing.įrustration with the justices' willingness to strike down popular legislation on the basis of their own views on reasonableness intensified during the Great Depression, as the court’s understanding of “substantive due process” became an obstacle to many New Deal efforts to revive the economy and protect the interests of the vulnerable. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.” Quoting another judge, they added: “The right to one’s person may be said to be a right of complete immunity: to be let alone.” ![]() “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity,” the justices wrote. A few decades later, the court found that a woman injured in a train accident could refuse examination by the railroad company’s doctor. And for decades before Griswold, the Supreme Court regularly found legal protection outside the Constitution for aspects of individual privacy against invasion by the government and private parties in a variety of settings.įor example, in 1845 the court found it unlawful to publish that a man had “the itch,” even if it were true: The law draws around individuals providently for their peace, the justices waxed, because humans are sympathetic creatures who deserve protection against those things calculated to exclude them from society.
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