Substantive Due Process Fundamental Right toPrivacy-anachronistic or not?

Greg Magarian magarian at
Sat Sep 30 10:07:12 PDT 2006

The purpose-effect distinction is a very interesting facet of this
problem.  I tend to believe that, when a given purpose equates with an
effect that becomes obvious as soon as one makes the barest effort to
see the law in question from the perspective of its targets, then we
can't credibly assess the purpose without reference to the effect.

As for the animal cruelty question: first, attributing AIDS to the mere
occurrence of same-sex relationships oversimplifies the public health
issues rather aggressively, and equating same-sex relationships with
torture -- a likelier underlying motive for oversimplifying the causes
of AIDS -- reduces to the same kind of purely moral objection discussed
above.  Torture harms third parties (at least if animals' needless
suffering moves you; I can't find your response to Mark Graber in the
thread, so I don't know why it doesn't).  Same-sex relationships don't.

Second, I understood you to have asked how one could defend such a
statute, not what the historical "impulses behind" such statutes
actually were.  I agree that preventing people from forming cruel habits
(you added the "young" to my "people," by the way; at this historical
moment I'm more concerned about older ones) probably wasn't the
historical basis for animal cruelty statutes, but I would readily accept
it as a rational defense of them.  You can keep your bridge.


>>> Earl Maltz <emaltz at> 09/30/06 12:42 PM >>>
I understood Howard Schweber's initial argument to be based on
purpose, rather than effect.

With respect to the state interest in preventing physical pain to
see my response to Mark Graber.

With respect to the argument about "preventing young people from getting

the habit of torture," I would respond that a) analogous arguments were 
made with respect prohibitions on same sex relationships and the spread
AIDS and b) that I have a bridge in New York that I would like to sell
anyone who seriously believes that this was the impulse behind animal 
cruelty laws.

At 11:50 AM 9/30/2006 -0400, Greg Magarian wrote:
>First, when a particular behavior is intrinsic to, or at least
>characteristic of, a group of people, then expressing moral disapproval
>of the behavior amounts to denigrating the group of people.  Second, a
>law against torturing animals in the home might serve state interests
>preventing physical pain to animals and discouraging people from
>in the habit of torture -- interests that have dimensions beyond the
>Gregory P. Magarian
>Professor of Law
>Villanova University School of Law
>299 N. Spring Mill Road
>Villanova, PA 19085
>(610) 519-7652
> >>> Earl Maltz <emaltz at> 09/30/06 11:26 AM >>>
>The purpose of the law in Lawrence was not to denigrate a group of
>citizens, but rather to express a moral judgment on a particular type
>behavior--quite a different thing.  If an expression of moral
>is not a permissible state interest, how does one defend laws against
>torturing animals in one's one home?
>At 08:41 AM 9/30/2006 -0500, Howard Schweber wrote:
> >Hi Yvette,
> >
> >First of all, thank you for bringing up this extremely interesting
> >question!  Well, I think it's extremely interesting, anyway, and
> >
> >There is a sense in which I think that Lawrence potentially
> >abandonment of the "right to privacy" in favor of a concept of
> >and in fact in that way represents a revival of Lochner.  What I am
> >thinking of is the idea of replacing a discrete right to privacy with
> >more general concept of a public-private divide, and insisting a la
>Munn v
> >Illinois that the state bears the burden of demonstrating the
> >of the subject it wants to regulate.  The opening language about "the
> >state is not omnipresent in the home" has that quality to it.  That
> >the point in Lochner, too -- that regulation of the economy was not a
> >matter of public interest in the way that health and safety
> >were.  Analytically, all that had to change in Parrish was the
> >that the economy, itself, was an object of public interest and hence
> >subject to regulation.  "The community may direct its law-making
> >correct the abuse which springs from [employers] selfish disregard of
> >public interest."
> >
> >It's the same sense in which the basic analytic framework of Plessy
> >remains good law -- the state must have a good reason for its laws,
> >denigrating its citizens is never a good reason.  The problem, of
> >was the ludicrous assertion that African-American citizens were not
> >denigrated, but that's a matter of factual interpretation, not
> >framework.  Parrish and Lochner represent the same thing; no
> >the basic analysis, just a rejection of the specific interpretation
> >facts.
> >
> >Later, the focus shifts to identifying particular rights.  This gets
> >a long and involved argument, but I would assert that what happened
> >that post-Lochner courts recognized the possibility of a public
> >in pretty much everything (the expansion of the Commerce Clause is
> >part of this story), with the result that nothing is outside the
> >state authority except that which can be associated with a
> >guaranteed right.  The burden shifted, in other words, so that it was
> >longer up to the state to demonstrate that the subject was properly
> >but rather fell on the individual to demonstrate that the activity in
> >question was exceptional by virtue of being a specifically guaranteed
> >right.  Viewed this way, Lawrence arguably signals a willingness to
> >to a broader, more philosophical and less legalistic understanding of
> >limits on state authority.  Which, incidentally, I would consider a
> >Good Thing.  Constitutions are not like ordinary statutes to be
> >corporate lawyers' casuistry to justify their clients' actions.
> >
> >But!  All of that is obviously a speculative interpretation (and if
> >Gillman is reading this he may now explain to me why I am wrong).  If
> >assume that we are still talking about an approach that focuses on
> >specific and discrete rights, then I guess I'm having trouble seeing
> >distinction between privacy and liberty.  All substantive due process
> >rights fall within the larger categories of "life," "liberty," or
> >"property"; that's pretty much what SDP means, isn't it?  So the
> >privacy is an element of liberty, rather than an alternative and
> >object.  The early cases of the 1970s established one element of
> >and justices writing for the majorities since then have not wanted to
> >away with that right, so they instead have been focusing on the
> >of what else "liberty" might guarantee in addition to the Roe-style
> >privacy right.  I'm not saying the shift is not interesting and
> >significant, only that I do not see it as an indication that the
> >privacy is no longer treated seriously.
> >
> >hs
> >
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