The Evolution of Substantive Due Process (Part II)

In Skinner v. Oklahoma in 1942 the Court added the fundamental right of procreation to the list of substantive due process rights. In 1952 in Rochin v. California the Court declared a fundamental right “to bodily integrity” to be among our unalienable rights. In 1954, the Court held that the “separate but equal” doctrine was unconstitutional for education (although an argument can be made that the Fourteenth Amendment was designed, in part, to stop segregation) – (Bolling v. Sharpe and Brown v. School Board); in 1967 the Court held that interracial marriage was constitutional (Loving v. Virginia); in 1972 in Eisenstadt v. Baird the Court held the right to “contraception” was fundamental; in 1973 the Court held that abortion should be added to the list of fundamental rights (Roe v. Wade); and most recently the Court held that that gay sex (The Court in Lawrence v. Texas did not say homosexual sex is a fundamental right, but it overruled Bowers v. Hardwick which said homosexual sex was not a fundamental right, so they implied gay sex is a right) and gay marriage (Obergefell v. Hodges) were elevated to fundamental rights. The Court has also held that personal control over medical treatment and physical confinement are fundamental rights.

In the 1961 case Mapp v. Ohio that Court held that the Fourth Amendment’s illegal seizure clause applied to the states (not just federal). However, in what seemed to be an innocent decision, the Court twice used the words “right of privacy” to generalize the rights protected under the Fourth and Fifth Amendments. This would become important when the Court decided Griswold v. Connecticut in 1965. The Court would elevate the “right to privacy” to a fundamental right in Griswold. However, privacy is a very broad and ambiguous right. To hold that all forms of privacy are protected led to the subsequent decisions that would allow abortion, homosexual sex, and gay marriage be elevated as fundamental rights. All private sexual behavior is not free from restrictions in our liberty (incest, prostitution, rape, etc. are subject to state police power).

There have been a few attempts by the Court to control and better define what constitutes a fundamental right. In the 1934 case Snyder v. Massachusetts the Court said rights are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In 1937 the Court called a fundamental right as one that is “implicit in the concept of ordered liberty” in Palko v. Connecticut and in 1977 the Court held a fundamental right as one “deeply rooted in the nation’s tradition and history” in Moore v. East Cleveland. In 1997, in Washington v. Glucksberg the Court would not go as far as allowing “the right to die” which encompassed “assisted suicide” as a fundamental right. In the decision Chief Justice Rehnquist said we must “exercise the utmost care whenever we are asked to break new ground in this field” of fundamental rights. Rehnquist and the majority would hold that “the right to die” and “assisted suicide” is not “consistent with the Nation’s history and constitutional traditions.”

The 2000 case between Troxel v. Granville was interesting. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision based on how Constitutional Rights are handed out like candy, but what is interesting is Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia shows restraint from using the Ninth Amendment to elevate this right. Scalia says about the Ninth Amendment “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. Hence, other than restraint, there is nothing really stopping the Court from elevating fundamental rights for political reasons. Scalia, even if he thinks something is a fundamental right, he will not elevate it unless it is clearly written in the Constitution. Sure, the Court has placed some “deep rooted in American history and tradition” considerations for elevating fundamental rights but that did not stop the Court from elevating gay marriage (hardly an American Tradition) to a fundamental right. Some say the Court elevated “marriage” as the fundamental right, but gay marriage did not meet the definition of traditional marriage. Hence, the fundamental right established by the Court was “gay marriage”.

So there you have it, a brief history of fundamental rights incorporated in our constitution via the interpretations of a few judges. I find it odd that the freedom of contract is no longer recognized as a fundamental right, but abortion and even the right to have contraception remain fundamental. The Court practiced some restraint in Glucksberg and a few other cases. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted). Raich can be overruled since many more states are passing medical marijuana laws over the past decade.