Substantive Due Process Fundamental Right to Privacy - anachronistic or not?

[Howard Schweber]

At 03:23 PM 9/29/2006 -0500, Barksdale, Yvette wrote:

>Hi folks,
>
>
>
>My students today had an extreme reaction to what I thought was a fairly 
>innocuous statement which was that Supreme Court jurisprudence no longer 
>protects a fundamental right to privacy, but instead, post-Roe, protects 
>various interests that used to be designated as privacy interests (most 
>notably  abortion) as liberty interests.
>
>
>
>They worked overtime to try to prove that, yes there really is a 
>constitutional right to privacy.


The fact that the Court no longer likes to depend on the right to privacy 
is not quite the same thing as saying that right is no longer 
protected.  Certainly there is no case that disavows the principle that 
privacy rights exist, is there?  As for cases, how about Carey v. 
Population Services (1977).  More to the point, the argument in Lawrence is 
that the right to privacy is part of the guarantee of "liberty" provided by 
substantive due process, isn't it?  Here's the language:

"There are broad statements of the substantive reach of liberty under the 
Due Process Clause in earlier cases, including Pierce v. Society of 
Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), and Meyer v. 
Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); but the most 
pertinent beginning point is our decision in Griswold v. Connecticut, 381 
U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).   In Griswold the Court 
invalidated a state law prohibiting the use of drugs or devices of 
contraception and counseling or [**2477]  aiding and abetting the use of 
contraceptives. The Court described the protected interest as a right to 
privacy and  [*565]  placed emphasis on the marriage relation and the 
protected space of the marital bedroom."

Kennedy goes on to quote Eisenstandt and cite Carey, then says the 
following:  "The laws involved in Bowers and here are, to be sure, statutes 
that purport to do no more than prohibit a particular sexual act. Their 
penalties and purposes, though, have more far-reaching consequences, 
touching upon the most private human conduct, sexual behavior, and in the 
most private of places, the home. The statutes do seek to control a 
personal relationship that, whether or not entitled to formal recognition 
in the law, is within the liberty of persons to choose without being 
punished as criminals."

I have always read/understood/taught these cases as being about a right of 
privacy guaranteed under the aegis of substantive due process (once we get 
beyond penumbras and emanations), and that substantive due process refers 
to rights contained in the terms "life, liberty and property."  I guess I'm 
not really seeing the problem -- it seems to me that the Court has 
continued to protect a right to privacy, and in the process has moved into 
a broader discussion of the scope of "liberty."

Howard Schweber
Dept. of Poli. Sci.
UW-Madison
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