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

Elizabeth Dale edale1 at
Fri Sep 29 16:09:56 PDT 2006

Isn't the question something else, Howard? It may be that the Court (or
Justice Kennedy) doesn't see a distinction between liberty and privacy, and
in that the modern Court is much like the late 19th and early 20th century
Court, which tended to talk about the right to the property of one's labor
and the right to liberty of contract as if they were identical, even though
they strike me as being both categorically and substantively distinct.


But the fact that the Court tends to elide privacy and liberty doesn't make
the two the same. It strikes me a right to privacy provides a much weaker
protection than a right to have the liberty to do certain things. "Don't
ask, don't tell" is about privacy, Lawrence is about liberty. They hardly
provide the same level of protection.


Elizabeth Dale

Associate Professor, US Legal History, Department of History, University of


Affiliate Professor, Legal History, Levin College of Law, University of


PO Box 117320

Gainesville, Florida 32611

edale at



From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Howard Schweber
Sent: Friday, September 29, 2006 6:31 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.

-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list