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

Don Crowley crowley at
Fri Sep 29 16:02:58 PDT 2006

I'm with Howard and I guess by implication with Yvette's students.  Once
Blackmun in Roe said that the right to privacy was located in the due
process clause of the 14th amendment we were (whether it was recognized or
not) talking about a variant of substantive due process.  Still that didn't
mean that for most of the Court the "right to privacy" didn't exist even if
its boundaries were unclear.   Rehnquist tried to emphasize the "liberty
interest" argument and I always saw that as a rhetorical attempt to reduce
the status of a right to privacy by suggesting that this interest was simply
subject to reasonable state attempts to regulate. It's not clear to me that
a majority ever bought this argument even if they were willing to see a
right to privacy as part of the broader notion of liberty there was still
something to the claim that a "right to privacy" existed.  As Howard notes
Lawrence follows this pattern.  


On another note I'm somewhat surprised by the absolute silence on this
listserv about yesterday's vote by Congress.  





From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Howard Schweber
Sent: Friday, September 29, 2006 3:31 PM
To: Barksdale, Yvette; conlawprof at
Subject: Re: Substantive Due Process Fundamental Right to Privacy
-anachronistic or not?


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

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.

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