The Constitution’s Fifth Amendment packs a lot of important concepts into one sentence. Among them, the idea of due process. In the most basic sense, due process means the government must follow certain rules before depriving someone of their life, liberty, or property. This is further broken down into procedural due process and substantive due process. Procedural due process is the actual rules government officials must follow. Substantive due process is less concrete. It protects certain rights from government interference that are not necessarily listed in the Constitution, but the courts have identified them as essential to a person’s life. Some of these rights include:
“No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Substantive due process has come to include a wide variety of cases, and various labels have been applied to the rights protected, including fundamental rights, privacy rights, liberty interests and incorporated rights. The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,1 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the incorporation of fundamental rights.2 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion,3 remain controversial.
A problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation have been extended by the Court to apply to married and unmarried couples alike.4 However, in Bowers v. Hardwick,5 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.6 Then, in Lawrence v. Texas,7 the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.
More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and restrain a court’s determination of the scope of substantive due process rights, held that the concept of liberty protected under the Due Process Clause should first be understood to protect only those rights that are deeply rooted in this Nation’s history and tradition.8 Moreover, the Court in Glucksberg required a careful description of fundamental rights that would be grounded in specific historical practices and traditions that serve as crucial guideposts for responsible decision-making.9
However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.10 Instead, the Obergefell Court recognized that fundamental rights do not come from ancient sources alone and instead must be viewed in light of evolving social norms and in a comprehensive manner.11 For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a careful description of the right in question—was inconsistent with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as received practices could serve as their own continued justification and new groups could not invoke rights once denied.12
Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.13 While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.14 Dissenting, Justice Brennan, joined by two others, rejected the emphasis on tradition and argued instead that the Court should ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’15
Starting with Meyer v. Nebraska and Pierce v. Society of Sisters,16 the Court has held that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.17 For instance, the right to marry is a fundamental right protected by the Due Process Clause,18 and only reasonable regulations of marriage may be imposed.19 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations.20 In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.
There is also a constitutional right to live together as a family,21 and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines family so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause.22 And the concept of family may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited.23 On the other hand, the Court has held that a child born to a married woman living with her husband is that husband's child is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights.24
The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights.25 The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville,26 the Court evaluated a Washington State law that allowed any person to petition a court at any time to obtain visitation rights whenever visitation may serve the best interests of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the fundamental rights of parents to make decisions concerning the care, custody and control of their children,27 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.
In Zablocki v. Redhail,28 importing into equal protection analysis the doctrines developed in substantive due process, the Court identified the right to marry as a fundamental interest that necessitates critical examination of governmental restrictions that interfere directly and substantially with the right.29 The Court struck down a statute that prohibited any resident under an obligation to support minor children from marrying without a court order; such order could only be obtained upon a showing that the support obligation had been and was being complied with and that the children were not and were not likely to become public charges. The plaintiff was an indigent wishing to marry but prevented from doing so because he was not complying with a court order to pay support to a child he had fathered out of wedlock, and because the child was receiving public assistance. Applying critical examination, the Court observed that the statutory prohibition could not be sustained unless it was justified by sufficiently important state interests and was closely tailored to effectuate only those interests.30 Two interests were offered that the Court was willing to accept as legitimate and substantial: requiring permission under the circumstances furnished an opportunity to counsel applicants on the necessity of fulfilling support obligations, and the process protected the welfare of children who needed support, either by providing an incentive to make support payments or by preventing applicants from incurring new obligations through marriage. The first interest was not served, the Court found, there being no provision for counseling and no authorization of permission to marry once counseling had taken place. The second interest was found not to be effectuated by the means. Alternative devices to collect support existed, the process simply prevented marriage without delivering any money to the children, and it singled out obligations incurred through marriage without reaching any other obligations.
Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court as neither entitled to rigorous scrutiny nor put in jeopardy by the decision.31 For example, in Califano v. Jobst,32 a unanimous Court sustained a Social Security provision that revoked disabled dependents’ benefits of any person who married, except when the person married someone who was also entitled to receive disabled dependents’ benefits. Plaintiff, a recipient of such benefits, married someone who was also disabled but not qualified for the benefits, and his benefits were terminated. He sued, alleging that distinguishing between classes of persons who married eligible persons and who married ineligible persons infringed upon his right to marry. The Court rejected the argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner. Therefore, it was permissible as an administrative convenience to make marriage the terminating point but to make an exception when both marriage partners were receiving benefits, as a means of lessening hardship and recognizing that dependency was likely to continue. The marriage rule was therefore not to be strictly scrutinized or invalidated simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.33
In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the right to marry applies with equal force to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.34 In so holding, the Court recognized marriage as being an institution of both continuity and change, and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.35 More broadly, the Obergefell Court recognized that the right to marry is grounded in four principles and traditions. These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;36 and (4) marriage is essential to the nation’s social order because it is at the heart of many legal benefits.37 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately demean[ed] and stigma[tized] those couples and any children resulting from such partnerships.38 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed natural, such a limitation was inconsistent with the right to marriage inherent in the liberty of the person as protected by the Fourteenth Amendment.39
More so than other areas of law, noneconomic substantive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of privacy relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the privacy of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.
One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article40 as a unifying theme to various common law protections of the right to be left alone, including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors, the right to life has come to mean the right to enjoy life — the right to be left alone. This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment.41 Then, in the 1920s, at the heyday of economic substantive due process, the Court ruled in two cases that, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska,42 the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Two years later, in Pierce v. Society of Sisters,43 the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.44 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of liberty.
Without doubt, Justice McReynolds said in Meyer, liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.45 The right of the parents to have their children instructed in a foreign language was within the liberty of the [Fourteenth] Amendment.46 Meyer was then relied on in Pierce to assert that the statute there unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.47
Although the Supreme Court continued to define noneconomic liberty broadly in dicta,48 this new concept was to have little impact for decades.49 Finally, in 1967, in Loving v. Virginia,50 the Court held that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed one of the ‘basic civil rights of man’ and a fundamental freedom. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men, and the classification of marriage rights on a racial basis was unsupportable. Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies.51
Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use to review infringements on fundamental freedoms were not always clear. In Poe v. Ullman,52 for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation.53 Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut,54 a majority of the Justices rejected reliance on substantive due process55 and instead decided it on another basis—that the statute was an invasion of privacy, which was a non-textual penumbral right56 protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom.
Whalen v. Roe57 may indicate the Court’s willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to pose a sufficiently grievous threat to either interest to establish a constitutional violation.58 Lower court cases have raised substantial questions as to whether this case established a fundamental right to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play.59
More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision in NASA v. Nelson, the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.60 In so doing, the Court assumed without deciding that a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.61 As a result, the questions about the scope of the right to informational privacy suggested by Whalen remain.
1. See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: 1977).
2. See supra Bill of Rights, The Fourteenth Amendment and Incorporation.
4. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). 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. 405 U.S. at 453.
5. 478 U.S. 186 (1986).
6. The Court upheld the statute only as applied to the plaintiffs, who were homosexuals, 478 U.S. at 188 (1986), and thus rejected an argument that there is a fundamental right of homosexuals to engage in acts of consensual sodomy. Id. at 192–93. In a dissent, Justice Blackmun indicated that he would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the broader issue not addressed by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. Id. at 199–203 (Justice Blackmun dissenting, joined by Justices Brennan, Marshall and Stevens).
7. 539 U.S. 558 (2003) (overruling Bowers).
8. See 521 U.S. 702, 720–21 (1997).
9. See id. at 721 (internal citations and quotations omitted).
10. See 135 S. Ct. 2584, 2602 (2015).
11. See id. at 2602–03.
12. See id. at 2602.
13. 491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest.
14. 491 U.S. at 128 n.6.
15. 491 U.S. at 142 .
16. 262 U.S. 390 (1923); 268 U.S. 510 (1928).
17. Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are intrinsic human rights. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These rights, however, do not extend to all close relationships. Bowers v. Hardwick, 478 U.S. 186 (1986) (same sex relationships).
18. Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978).
19. Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
20. Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of the Court deemed the statute to fail under equal protection, whereas Justices Stewart and Powell found a violation of due process. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977).
21. If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’ Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978).
22. Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at 513.
23. Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court noted, the rights of a natural family arise independently of statutory law, whereas the ties that develop between a foster parent and a foster child arise as a result of state-ordered arrangement. As these latter liberty interests arise from positive law, they are subject to the limited expectations and entitlements provided under those laws. Further, in some cases, such liberty interests may not be recognized without derogation of the substantive liberty interests of the natural parents. Although Smith does not define the nature of the interest of foster parents, it would appear to be quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster families, a court is likely to defer to a typical state process which makes such decisions based on the best interests of the child. See Quilloin v. Walcott, 434 U.S. 246 (1978).
24. Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O’Connor, Kennedy) because he believed that the statute at issue adequately protected that interest.
25. The clearest conflict to date was presented by state law giving a veto to parents over their minor children’s right to have an abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 505 U.S. 833 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness).
26. 530 U.S. 57 (2000).
27. 530 U.S. at 66.
28. 34 U.S. 374 (1978).
29. Although the Court’s due process decisions have broadly defined a protected liberty interest in marriage and family, no previous case had held marriage to be a fundamental right occasioning strict scrutiny. 434 U.S. at 396–397 (Justice Powell concurring).
30. 434 U.S. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407 (Justice Rehnquist). Justices Powell and Stevens would have applied intermediate scrutiny to void the statute, both for its effect on the ability to marry and for its impact upon indigents. Id. at 400, 406 n.10.
31. 434 U.S. at 386–87. Chief Justice Burger thought the interference here was intentional and substantial, whereas the provision in Jobst was neither. Id. at 391 (concurring).
32. 434 U.S. 47 (1977).
33. 434 U.S. at 54. See also Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits to a married woman under sixty-two with dependent children in her care whose husband retires or becomes disabled but denying them to a divorced woman under sixty-two with dependents represents a rational judgment by Congress with respect to likely dependency of married but not divorced women and does not deny equal protection); Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social Security benefits to widows and divorced wives of wage earners does not deprive mother of a child born out of wedlock who was never married to wage earner of equal protection).
34. See 135 S. Ct. 2584, 2599 (2015).
35. See id. at 2613–16.
36. In Pavan v. Smith, the Court reviewed an Arkansas law providing that when a married woman gives birth, her husband must be listed as the second parent on the child's birth certificate, including when he is not the child's genetic parent. 137 S. Ct. 2075, 2079 at 1 (2017). The lower court had interpreted the law to not require the state to extend the rule to similarly situated same-sex couples. Id. Relying on Obergefell, the Court struck down the law, noting that the differential treatment of the Arkansas rules infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.' Id. (quoting Obergefell, 135 S. Ct. at 2601.)
37. See Obergefell, 135 S. Ct. at 2599–2601.
38. See id. at 2602.
39. See id. at 2602. The Court also grounded its Obergefell decision in the Equal Protection Clause of the Fourteenth Amendment. Id. at 2602 (The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.). For a discussion of Obergefell’s equal protection holding, see infra Fourteenth Amendment: Equal Protection of the Laws: The New Equal Protection: Sexual Orientation.
40. Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890).
41. See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis wrote: The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. 277 U.S. at 478.
42. 262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923).
43. 268 U.S. 510 (1925).
44. Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 531, 533, 534 (1925). The Court has subsequently made clear that these cases dealt with a complete prohibition of the right to engage in a calling, holding that a brief interruption did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented attorney from assisting client appearing before a grand jury).
45. 262 U.S. at 399.
46. 262 U.S. at 400.
47. 268 U.S. at 534–35.
48. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among the basic civil rights of man); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within the private realm of family life which the state cannot enter).
49. E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of mental illness or intellectual disability); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities).
50. 388 U.S. 1, 12 (1967).
51. Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note also that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506–07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds.
52. 367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the emanations from this as also protected. Id. at 509.
53. According to Justice Harlan, due process is limited neither to procedural guarantees nor to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. The liberty protected by the clause is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 367 U.S. at 542, 543.
54. 381 U.S. 479 (1965) .
55. 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. Griswold v. Connecticut, 381 U.S. at 482 (opinion of Court by Justice Douglas).
56. The analysis, while reminiscent of the right to privacy first suggested by Warren and Brandeis, still approached the matter in reliance on substantive due process cases. It should be noted that the separate concurrences of Justices Harlan and White were specifically based on substantive due process, 381 U.S. at 499, 502, which indicates that the majority’s position was intended to be something different. Justice Goldberg, on the other hand, in concurrence, would have based the decision on the Ninth Amendment. 381 U.S. at 486–97. See analysis under the Ninth Amendment, Rights Retained By the People, supra.
57. 429 U.S. 589 (1977).
58. 429 U.S. at 598–604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure arguably has its roots in the Constitution, at least in some circumstances, the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court’s careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455–65 (1977) (stating that an invasion of privacy claim cannot be considered in abstract [and] . . . must be weighed against the public interest). But see id. at 504, 525–36 (Chief Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting).
59. See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (. . . we believe that the balancing test, more common to due process claims, is appropriate here.).
60. See 562 U.S. 134 (2011).
61. Id. at 148–56.