A wolf in sheep's clothing?: A critical analysis of justice Harlan's substantive due process formulation

Fordham Law Review

Volumn 64, Issue 5, 1996, Pages 2241-2284

  Cicia, Anthony C ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030534028     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (334)

1. 505 U.S. 833 (1992).
2. Casey, 505 U.S. at 846-53. The Due Process Clause of the Fourteenth amendment provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Courts have interpreted the Due Process Clause as having two components: procedural due process and substantive due process. Procedural due process ensures that people will receive adequate legal procedure in any adjudication. Substantive due process, however, protects some rights that are so essential that the government may not abridge them regardless of the procedures used. See Walter F. Murphy et al., American Constitutional Interpretation 1061-62 (2d ed. 1995). Substantive due process, thus, gives meaning to the word "liberty" in the Due Process Clause, and has become an important source in the Constitution for protecting rights. See infra part IV.
3. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (plurality opinion) (extending the right to live with one's family to families that were not traditional nuclear families); Roe v. Wade, 410 U.S. 113 (1973) (recognizing the right of a woman to choose whether to terminate her pregnancy); Loving v. Virginia, 388 U.S. 1 (1967) (recognizing the right to marriage without state interference).
4. See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (refusing to extend the right to raise one's child to illegitimate parents); Bowers v. Hardwick, 478 U.S. 186 (1986) (refusing to recognize a homosexual's right to intimate association).
5. Many factors led people to believe that the Court would act this way. The Court had become increasingly conservative during the 1980s. George Bush's election in 1988 signalled another four years (at least) of potential conservative appointments. Bush fulfilled this prophecy by appointing Justices Kennedy, Souter, and Thomas by 1991. With Justice Blackmun's age (80 in 1990), the possibility existed that Bush would be in office to fill his spot with a conservative. This would leave Justice Stevens as the only liberal on the Court. Also, the Reagan and Bush administrations had asked the Court six times to overrule Roe, and this appealed to some of the conservative Justices. See Murphy et al., supra note 2, at 1281. Thus, all signs pointed to a radically conservative Court that would overrule cases that had extended the scope of basic liberties secured by the Constitution. Justice Blackmun even predicted such behavior by the Court. See Webster v. Reproductive Health Servs., 492 U.S. 490, 537-38 (1989) (Blackmun, J., dissenting). Many commentators also expected the Court to shrink the scope of basic liberties. See infra note 6.
6. See, e.g., Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29; Linda Greenhouse, Slim Margin: Moderates on Court Defy Predictions, N.Y. Times, July 5, 1992, § 4, at 1; Richard J. Neuhaus, The Dred Scott of Our Time, Wall St. J., July 2, 1992, at A8; Kathleen M. Sullivan, A Victory for Roe, N.Y. Times, June 30, 1992, at A23.
7. See, e.g., Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29; Linda Greenhouse, Slim Margin: Moderates on Court Defy Predictions, N.Y. Times, July 5, 1992, § 4, at 1; Richard J. Neuhaus, The Dred Scott of Our Time, Wall St. J., July 2, 1992, at A8; Kathleen M. Sullivan, A Victory for Roe, N.Y. Times, June 30, 1992, at A23.
8. See, e.g., Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29; Linda Greenhouse, Slim Margin: Moderates on Court Defy Predictions, N.Y. Times, July 5, 1992, § 4, at 1; Richard J. Neuhaus, The Dred Scott of Our Time, Wall St. J., July 2, 1992, at A8; Kathleen M. Sullivan, A Victory for Roe, N.Y. Times, June 30, 1992, at A23.
9. See, e.g., Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29; Linda Greenhouse, Slim Margin: Moderates on Court Defy Predictions, N.Y. Times, July 5, 1992, § 4, at 1; Richard J. Neuhaus, The Dred Scott of Our Time, Wall St. J., July 2, 1992, at A8; Kathleen M. Sullivan, A Victory for Roe, N.Y. Times, June 30, 1992, at A23.
10. In Casey, Justices O'Connor, Kennedy, and Souter issued the Court's holding in the form of a joint opinion. In a joint opinion, no single Justice authors the opinion; instead, several Justices combine their views into one opinion. See David B. Anders, Note, Justices Harlan and Black Revisited: The Emerging Dispute Between Justice O'Connor and Justice Scalia Over Unenumerated Fundamental Rights, 61 Fordham L. Rev. 895, 895 n.6 (1993). Justices Blackmun and Stevens wrote separate concurring opinions giving a majority to the joint opinion's holding that a woman has a right to choose whether to terminate her pregnancy. See Casey, 505 U.S. at 911 (Stevens, J., concurring in part and dissenting in part); id. at 922 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
11. 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
12. Id. at 543. This passage is by no means a complete outline of Justice Harlan's substantive due process formulation. For a detailed discussion of Justice Harlan's formulation, see infra part I.
13. James E. Fleming, Securing Deliberative Autonomy, 48 Stan. L. Rev. 1, 60 (1995) [hereinafter Fleming, Autonomy] (citing Charles Fried, Order and Law 72 (1991), and Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 76-79 (1991)).
14. James E. Fleming, Securing Deliberative Autonomy, 48 Stan. L. Rev. 1, 60 (1995) [hereinafter Fleming, Autonomy] (citing Charles Fried, Order and Law 72 (1991), and Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 76-79 (1991)).
15. James E. Fleming, Securing Deliberative Autonomy, 48 Stan. L. Rev. 1, 60 (1995) [hereinafter Fleming, Autonomy] (citing Charles Fried, Order and Law 72 (1991), and Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 76-79 (1991)).
16. Casey, 505 U.S. at 983-84 (Scalia, J., concurring in the judgment in part and dissenting in part) (likening "reasoned judgment" to "value judgmen[s]," "political choice[s]," and "personal predilection[s]"). The joint opinion calls Justice Harlan's substantive due process formulation "reasoned judgment." Id. at 849.
17. See infra part III.
18. See infra part IV.
19. 367 U.S. 497, 522 (Harlan, J., dissenting).
20. Bruce Ackerman, The Common Law Constitution of John Marshall Harlan, 36 N.Y.L. Sch. L. Rev. 5, 26 (1991).
21. 349 U.S. 294 (1955) (implementing educational desegregation in the United States).
22. 369 U.S. 186 (1962) (recognizing the fundamental right to vote and the one person/one vote principle).
23. 381 U.S. 479 (1965) (recognizing the fundamental right to privacy).
24. 384 U.S. 436 (1966) (protecting arrestees from self-incrimination by requiring the government to make them aware of their constitutional rights).
25. See, e.g., Ackerman, supra note 15 (criticizing Justice Harlan for being conservative); Charles Fried, The Conservatism of Justice Harlan, 36 N.Y.L. Sch. L. Rev. 33 (1991) (praising Justice Harlan for being conservative).
26. See, e.g., Ackerman, supra note 15 (criticizing Justice Harlan for being conservative); Charles Fried, The Conservatism of Justice Harlan, 36 N.Y.L. Sch. L. Rev. 33 (1991) (praising Justice Harlan for being conservative).
27. See Gerald Gunther, Another View of Justice Harlan - A Comment on Fried and Ackerman, 36 N.Y.L. Sch. L. Rev. 67, 68 (1991); Nadine Strossen, Justice Harlan and the Bill of Rights: A Model For How a Classic Conservative Court Would Enforce the Bill of Rights, 36 N.Y.L. Sch. L. Rev. 133, 133-34 (1991).
28. See Gerald Gunther, Another View of Justice Harlan - A Comment on Fried and Ackerman, 36 N.Y.L. Sch. L. Rev. 67, 68 (1991); Nadine Strossen, Justice Harlan and the Bill of Rights: A Model For How a Classic Conservative Court Would Enforce the Bill of Rights, 36 N.Y.L. Sch. L. Rev. 133, 133-34 (1991).
29. See, e.g., Strossen, supra note 21, at 133-34 (characterizing Justice Harlan's substantive due process as liberal); Robin West, Reconstructing Liberty, 59 Tenn. L. Rev. 441, 442-44 (1992) (same).
30. See, e.g., Strossen, supra note 21, at 133-34 (characterizing Justice Harlan's substantive due process as liberal); Robin West, Reconstructing Liberty, 59 Tenn. L. Rev. 441, 442-44 (1992) (same).
31. See Fried, supra note 20, at 35.
32. 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
33. Although Justice Harlan wrote a concurrence in Griswold, that concurrence is not a second source of his beliefs about substantive due process. All Justice Harlan said about his substantive due process formulation in Griswold, is that he based his decision on the same "reasons stated at length in my dissenting opinion in Poe v. Ullman." Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring). Although Griswold was not specifically decided on due process grounds, it has come to be regarded as a due process case. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 128 n.6 (1989) (Scalia, J.) (defending his substantive due process views by stating that he believes Griswold was rightly decided); Fleming, Autonomy, supra note 10, at 57 (referring to Griswold as a substantive due process case).
34. See Ackerman, supra note 15, at 8-10. Ackerman's article is by no means a complete outline of the common law tradition, but it will suffice for purposes of this Note.
35. See id. at 8-9.
36. Id. at 9; see also id. at 6 (stating that the common law "began in the forests of Northern Europe where Germanic tribes first tasted a liberty-loving alternative to Roman despotism").
37. Id. at 9.
38. Id. at 8-9.
39. Id. at 9.
40. This view is similar to that of a fundamental rights theorist. See infra note 47.
41. See Ackerman, supra note 15, at 9.
42. Id.
43. Id. at 10.
44. Id.
45. Id.
46. See id. at 9-10.
47. See id. at 6-7. During the New Deal, the Court began to uphold legislation that disrupted the distribution of wealth established and protected by the common law system. See Cass R. Sunstein, The Partial Constitution 51 (1993).
48. See id. at 6-7. During the New Deal, the Court began to uphold legislation that disrupted the distribution of wealth established and protected by the common law system. See Cass R. Sunstein, The Partial Constitution 51 (1993).
49. See Ackerman, supra note 15, at 7.
50. 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
51. Id. at 498; see Conn. Gen. Stat. Ann. §§ 53-32, 54-196 (West 1958). In Griswold v. Connecticut, 381 U.S. 479, 485 (1965), the Court held that these statutes were unconstitutional.
52. Poe, 367 U.S. at 508.
53. Id. at 522-23 (Harlan, J., dissenting).
54. Id. at 542.
55. Id. at 543.
56. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
57. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
58. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
59. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
60. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
61. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
62. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
63. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 382 (1992) [hereinafter Dworkin, Unenumerated Rights]; Fleming, Autonomy, supra note 10, at 16-22; James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 264 (1993) [hereinafter Fleming, Constructing]. Fundamental rights theorists believe that the Constitution is an abstract scheme of principles. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 118-19 (1994) [hereinafter Dworkin, Dominion]. They feel that individuals possess certain fundamental rights that are so essential to "the concept of ordered liberty" that the government cannot infringe upon these rights without a compelling justification. See Palko v. Connecticut, 302 U.S. 319, 325 (1937); Dworkin, Dominion, supra, at 119; Fleming, Autonomy, supra note 10, at 19-20 (stating that possession of fundamental rights is necessary for free and "equal citizenship"). They believe that because of the abstract nature of the Constitution, to derive fundamental rights from only the text of the Constitution is impossible. Instead, the clauses of the Constitution must be read in this abstract spirit of the document. See Dworkin, Dominion, supra, at 166.
64. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).
65. Two contrasting uses of the term tradition exist. First, a judge can use tradition embodied in the aspirational principles that a nation strives to achieve. See Fleming, Autonomy, supra note 10, at 56-57. A judge can also refer to tradition as embodied in the way a nation has traditionally acted, historical practices. Id. Thus, tradition can either be how a nation strives to act or how our nation has acted. See also Frank I. Michelman, Super Liberal: Romance, Community, and Tradition in William J. Brennan, Jr.'s Constitutional Thought, 77 Va. L. Rev. 1261, 1312-20 (1991) (drawing the distinction between tradition as historical practice and tradition as abstract beliefs).
66. Two contrasting uses of the term tradition exist. First, a judge can use tradition embodied in the aspirational principles that a nation strives to achieve. See Fleming, Autonomy, supra note 10, at 56-57. A judge can also refer to tradition as embodied in the way a nation has traditionally acted, historical practices. Id. Thus, tradition can either be how a nation strives to act or how our nation has acted. See also Frank I. Michelman, Super Liberal: Romance, Community, and Tradition in William J. Brennan, Jr.'s Constitutional Thought, 77 Va. L. Rev. 1261, 1312-20 (1991) (drawing the distinction between tradition as historical practice and tradition as abstract beliefs).
67. Poe, 367 U.S. at 544 (Harlan, J., dissenting).
68. Id. at 544 (stating that "the decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria").
69. Id. at 540-41.
70. Id. at 540.
71. Id. at 542.
72. Id.
73. See Fleming, Constructing, supra note 47, at 265 (describing how fundamental rights theorists conceive due process).
74. Poe, 367 U.S. at 542 (Harlan, J., dissenting).
75. Id. at 544 (quoting Irvine v. California, 347 U.S. 128, 147 (1954) (Frankfurter, J., dissenting)).
76. Id. at 542.
77. Id. at 544.
78. Subsequent cases have relied on Poe to protect such broadly framed rights. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (joint opinion) (formulating the right to choose whether to terminate a pregnancy as decisional autonomy).
79. Poe, 367 U.S. at 548 (Harlan, J., dissenting).
80. Id. at 553.
81. Id. at 551-52.
82. Id. at 552. Harlan further limited the right by stating that, although government cannot infringe upon the privacy of marriage, it is appropriate for the government to forbid homosexuality, adultery, or any extramarital sex. Id. at 553.
83. See Fleming, Autonomy, supra note 10, at 58-59 (stating that the joint opinion in Casey rejected Justice Scalia's highly restrictive substantive due process formulation in favor of Justice Harlan's widely accepted formulation); West, supra note 22, at 444-45 (stating that Justice Harlan had a "liberal understanding" of substantive due process, but Justice Scalia intends to shrink the scope of substantive due process).
84. What follows is by no means a complete or thorough outline of the originalist school of Constitutional interpretation. The following outline is sufficient, however, to understand the theoretical underpinnings of Justice Scalia's substantive due process formulation.
85. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 143-61 (1990); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). The originalist approach thus represents the opposite view of fundamental rights theorists. See supra note 47.
86. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 143-61 (1990); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). The originalist approach thus represents the opposite view of fundamental rights theorists. See supra note 47.
87. Cf. Bowers v. Hardwick, 478 U.S. 186, 194 (1986) ("The Court . . . comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language . . . of the Constitution.") Although the author of the Bowers majority opinion, Justice White, is not considered an originalist, his reasoning in Bowers mirrors that of an originalist. Originalists are not opposed to fundamental rights in general. They believe, however, that the only fundamental rights are those specifically enumerated within the four corners of the constitution. See Murphy et al., supra note 2, at 389. For example, although originalism prohibits judges from creating unenumerated rights, it also prohibits judges from eradicating rights that have already been granted by the Constitution and the democratic process. See Bork, supra note 68, at 147; Anders, supra note 7, at 898.
88. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619, 627 (1994).
89. See Bork, supra note 68, at 144-45.
90. See William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694 (1976).
91. Scalia, supra note 68, at 862.
92. Id. at 861.
93. Id. (stating that "in a crunch I may prove a faint-hearted originalist"). Scalia's example of his "faint-hearted" originalism involves the Eighth Amendment. Scalia states that historically public flogging was not considered cruel and unusual punishment, but a modern-day decision that upheld a law providing for public flogging as punishment would be outrageous. Thus, Scalia says faint-hearted originalists could hold public flogging unconstitutional, but still adhere to originalism as a doctrine. Id. at 861-62; see Young, supra note 70, at 628; Anders, supra note 7, at 899.
94. See Rehnquist, supra note 72, at 700; Young, supra note 70, at 629-30; Anders, supra note 7, at 898.
95. This is what Professor Alexander Bickel has termed "the counter-majoritarian difficulty." Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962). Bickel believes that judicial review is a "deviant institution in the American democracy" because overruling a legislative decision thwarts the will of those who elected the decision makers. Id. at 16-18.
96. See Anders, supra note 7, at 898.
97. See Scalia, supra note 68, at 863 ("[T]he main danger in judicial interpretation of the Constitution . . . is that the judges will mistake their own predilections for the law.").
98. See Rehnquist, supra note 72, at 705.
99. Bork, supra note 68, at 146 (stating that the Court can act "as a legal rather than a political institution only if it is neutral . . . in the way it derives and defines the principles it applies"). Bork's call for decisions made according to neutral principles is very similar to Professor Herbert Wechsler's theory. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959) (defining neutral principles as "reasons that in their generality and their neutrality transcend any immediate result that is involved").
100. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 6 (1971).
101. See Bork, supra note 68, at 146-53.
102. Examples of these broadly framed clauses are the Due Process Clause of the Fourteenth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment. See John H. Ely, Democracy and Distrust: A Theory of Judicial Review 14-41 (identifying these clauses as being open ended and thus frustrating an originalist method of constitutional interpretation).
103. See Bork, supra note 68, at 149-50.
104. See id. at 149 (stating that a judge trying to determine the meaning of the Equal Protection Clause should look at what the drafters of the Fourteenth Amendment, the Congress that proposed the Fourteenth Amendment, and the ratifiers of the Fourteenth Amendment intended the clause to mean).
105. See Michael H. v. Gerald D., 491 U.S. 110, 121-22 (1989) (stating that interpreting the Due Process Clause has been "treacherous" at times for the Court and that he is "attempt[ing] to limit and guide interpretation of the [c]lause").
106. Id. at 122-27.
107. Three of these four cases will be used to extrapolate Justice Scalia's substantive due process formulation. See infra parts II.B.2.a-e. The other case, Casey, adds very little to Justice Scalia's views on substantive due process. Much of his dissent is a bitter attack on the joint opinion, not an outline of his due process formulation. See Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).
108. 491 U.S. 110 (1989). See Gregory C. Cook, Note, Footnote 6: Justice Scalia's Attempt to Impose a Rule of Law on Substantive Due Process, 14 Harv. J.L. & Pub. Pol'y 853, 853 (1991) (stating that Justice Scalia "proposed a new test for substantive due process" in his Michael H. opinion).
109. 491 U.S. 110 (1989). See Gregory C. Cook, Note, Footnote 6: Justice Scalia's Attempt to Impose a Rule of Law on Substantive Due Process, 14 Harv. J.L. & Pub. Pol'y 853, 853 (1991) (stating that Justice Scalia "proposed a new test for substantive due process" in his Michael H. opinion).
110. Michael H., 491 U.S. at 113.
111. Id. at 114.
112. Id.
113. Id. at 114-15.
114. Id. at 114.
115. See Cal. Evid. Code Ann. § 621 (West 1995) (repealed 1992). In 1989, when Michael H. was decided, section 621 of the California Evidence Code provided that "the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Michael H., 491 U.S. at 115 (quoting Cal. Evid. Code § 621(a) (West Supp. 1989)).
116. See id. at 118 (quoting Cal. Evid. Code Ann. § 621 (b)-(d) (West Supp. 1989)).
117. Id. at 121.
118. Id. at 124.
119. See supra part II.A.
120. Michael H., 491 U.S. at 121-22.
121. Id. at 121 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 502 (1977)).
122. Id. at 121-22 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting)).
123. 495 U.S. 604 (1990).
124. Burnham, 495 U.S. at 608. In Burnham, a married couple had separated in New Jersey with an agreement that Mrs. Burnham would file for divorce there on grounds of irreconcilable differences. Id. at 607. After Mrs. Burnham took their children to live in California, Mr. Burnham filed for divorce in New Jersey on grounds of desertion. Id. at 608. In response to Mr. Burnham's breach of their agreement, Mrs. Burnham filed for divorce in California, and while Mr. Burnham was in California on business and to visit his children, he was served with a California court summons. Id. at 607-08. Mr. Burnham claimed that because he lacked minimum contacts with California, requiring him to stand trial in California violated his due process rights. Id. The California Courts disagreed with Mr. Burnham, holding that personal jurisdiction was established because Mr. Burnham had been served with process while personally in California. Id. Justice Scalia, in a plurality opinion, agreed that California could assert personal jurisdiction in this case. Id. at 619.
125. Justice Brennan believed that the correct inquiry was not whether courts traditionally could exert personal jurisdiction in these situations, but whether requiring Mr. Burnham to appear was fair, based on the number of contacts he had with California. Id. at 629 (Brennan, J., concurring). The standard Justice Brennan championed came from International Shoe Co. v. Washington, 326 U.S. 310 (1945), where the Court held that a state court's assertion of personal jurisdiction does not violate the Due Process Clause if a defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
126. Burnham, 495 U.S. at 623.
127. 497 U.S. 261, 292-93 (1990) (Scalia, J., concurring). In Cruzan, the parents of Nancy Cruzan, a young woman in a vegetative state due to an accident, sought a court order directing the hospital to terminate the life support system that was keeping their daughter alive. Id. at 265. The Supreme Court of Missouri denied the parents' application, and the Court affirmed this denial in an opinion written by Chief Justice Rehnquist. Id.
128. Id. at 293.
129. Id. at 300-01.
130. Michael H. v. Gerald D., 491 U.S. 110, 122 (1989).
131. Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion).
132. Palko v. Connecticut, 302 U.S. 319, 325 (1937). This scheme of requiring a right to be based either in tradition or central to ordered liberty has been espoused by both "conservative" and "liberal" Justices. See Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986) (White, J.) ("conservative"); Roe v. Wade, 410 U.S. 113, 152 (1973) (Blackmun, J.) ("liberal"). Thus, Justice Scalia's reliance on tradition is not new to substantive due process jurisprudence. In fact, there are many substantive due process cases that have relied on tradition to decide whether an asserted right receives due process protection. See, e.g., Bowers, 478 U.S. at 192-94 (relying on tradition to deny protection to a homosexual's right of privacy); Moore, 431 U.S. at 503 (relying on tradition to protect "the sanctity of the family"); Wisconsin v. Yoder, 406 U.S. 205, 220-29 (1972) (relying on tradition to support the right to control the education of one's child). The novel part of Justice Scalia's opinion is his use of history and tradition as an independent substantive due process methodology. See Michael H., 491 U.S. at 137 (Brennan, J., dissenting) ("[T]he plurality opinion's exclusively historical analysis portends a significant and unfortunate departure from our prior cases . . . .").
133. See David A. Strauss, Tradition, Precedent, and Justice Scalia, 12 Cardozo L. Rev. 1699, 1705 (1991) (stating that under Justice Scalia's substantive due process formulation "the rule is that if a government practice is traditional, it is also constitutional").
134. Michael H., 491 U.S. at 122 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
135. Id. at 124.
136. Id.
137. For the facts of Burnham, see supra note 105.
138. Id. at 610.
139. Id. at 619.
140. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 295-96, 300 (1990) (Scalia, J., concurring).
141. Michael H. v. Gerald D., 491 U.S. 110, 124-27 & n.6 (1989). For example, Justice Scalia states that "[t]he presumption of legitimacy was a fundamental principle of the common law," id. at 124 (common law); "the evidence shows that . . . the ability of a person in Michael's position to claim paternity has not been generally acknowledged," id. at 125 (historical practices); and "[w]hat counts is whether the States in fact award substantive parental rights." Id. at 127 (statutes).
142. Id. at 124-25.
143. Id. at 125-30. Justice Scalia's use of "adulterous father" in defining the right in question is a separate aspect of his substantive due process formulation and will be discussed separately. See infra part II.B.2.d. Michael H. provided an easy case for Justice Scalia because both older and more modern sources of tradition pointed towards denying protection to the asserted right. Whether Justice Scalia affords more deference to the old or modern sources of tradition is still an open question after Michael H. This question is ostensibly resolved in favor of the old sources of tradition in Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part). In Casey, Justice Scalia does not examine the modern statutes that legalize abortion in making his decision that the right to abortion is not protected by the Due Process Clause. He instead merely states that "longstanding traditions of American society have permitted [abortion] to be legally proscribed." Id. at 980.
144. See Burnham v. Superior Court, 495 U.S. 604, 608-16 (1990).
145. See supra notes 122-24 and accompanying text. For a thorough analysis of Justice Scalia's historical analysis of the proper traditions in Burnham, see L. Benjamin Young, Jr., Note, Justice Scalia's History and Tradition: The Chief Nightmare in Professor Tribe's Anxiety Closet, 78 Va. L. Rev. 581, 598-602 (1992).
146. This practice, which was specifically defined in footnote six of the Michael H. opinion, has been the subject of extensive criticism by many commentators. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1086-87 (1990) (criticizing footnote six for being easily manipulable); id. at 1090-92 (criticizing footnote six for being imprecise and more ambiguous than Justice Scalia admits); see also Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1173 (1988) (cautioning that "[t]raditions can be described at varying levels of generality").
147. This practice, which was specifically defined in footnote six of the Michael H. opinion, has been the subject of extensive criticism by many commentators. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1086-87 (1990) (criticizing footnote six for being easily manipulable); id. at 1090-92 (criticizing footnote six for being imprecise and more ambiguous than Justice Scalia admits); see also Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1173 (1988) (cautioning that "[t]raditions can be described at varying levels of generality").
148. This practice, which was specifically defined in footnote six of the Michael H. opinion, has been the subject of extensive criticism by many commentators. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1086-87 (1990) (criticizing footnote six for being easily manipulable); id. at 1090-92 (criticizing footnote six for being imprecise and more ambiguous than Justice Scalia admits); see also Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1173 (1988) (cautioning that "[t]raditions can be described at varying levels of generality").
149. Michael H., 491 U.S. at 127. By contrast, Justice Brennan defines the right in question rather broadly, asking whether a parent has a right to a relationship with his child. Id. at 139 (Brennan, J., dissenting) (stating that the proper question is "whether parenthood is an interest that historically has received our attention and protection").
150. See supra note 127.
151. Michael H., 491 U.S. at 128 n.6.
152. Id. Justice Scalia made these comments in response to Justice Brennan's dissent, which broadly defined the right. See supra note 128. Justice Scalia claims that Justice Brennan's definition of the right provides no guidelines for the proper level of generality to define a right. Michael H., 491 U.S. at 127 n.6 ("Why should the relevant category not even be more general - perhaps 'family relationships'; or 'personal relationships'; or even 'emotional attachments in general'?").
153. Michael H., 491 U.S. at 128 n.6. This provision has been especially criticized by Tribe and Dorf. See Tribe & Dorf, supra note 127, at 1090 (referring to this part of footnote six as a "pervasive problem" in Justice Scalia's methodology).
154. See Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 293 (1990) (Scalia, J., concurring).
155. See Benjamin C. Zipursky, The Pedigrees of Rights and Powers in Scalia's Cruzan Concurrence, 56 U. Pitt. L. Rev. 283, 288 (1994) (stating that the most specific right would have been the right of "patients to refuse artificial hydration and nutrition through a gastrostomy tube [when] in a persistent vegetative state").
156. Cruzan, 497 U.S. at 342 (Stevens, J., dissenting).
157. This point may strike a reader as strange because Justice Scalia is commonly criticized for lacking respect for precedent in substantive due process. See, e.g., Fleming, supra note 10, at 60 & n.352 (labeling Scalia a "counterrevolutionary conservative" and then defining that term as a judge that "seek[s] to purge constitutional law of precedents and principles manifesting liberal error at the earliest available opportunity"). This point will be discussed and analyzed further. See infra part III.B.3.
158. Michael H. v. Gerald D., 491 U.S. 110, 124 (1989) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)).
159. 478 U.S. 186 (1986).
160. 410 U.S. 113 (1973). Scalia notes that in Bowers, the Court relied on the nation's tradition of proscribing homosexual sodomy to conclude that there was no right to such intimate association. Michael H., 491 U.S. at 127 n.6. In Roe, he points out that the Court "spent about a fifth of our opinion negating the proposition that there was a long standing tradition of laws proscribing abortion." Id.
161. Transient, or tag, jurisdiction refers to jurisdiction based on personal service of process on a defendant within the state where the defendant is being sued. See Steven R. Greenberger, Justice Scalia's Due Process Traditionalism Applied to Territorial Jurisdiction: The Illusion of Adjudication Without Judgment, 33 B.C. L. Rev. 981, 1002 n.101 (1992). Transient jurisdiction was at issue in Burnham. See supra notes 105-06.
162. See Burnham v. Superior Court, 495 U.S. 604, 612-13, 615-16 (1990).
163. A true originalist does not have a substantive due process formulation at all because no due process rights are specifically enumerated in the Constitution. See Bork, supra note 68, at 235-40; see also infra note 165 (discussing how Justice Scalia has been criticized by Robert Bork for breaking from originalism in Justice Scalia's Michael H. opinion).
164. Poe v. Ullman, 367 U.S. 497, 542, 544 (1961) (Harlan, J., dissenting).
165. Michael H. v. Gerald D., 491 U.S. 110, 121 (1989) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 502 (1977)). Justice Scalia not only stresses judicial restraint in due process adjudication, but also warns that failure to adhere to this belief may be the destruction of the Court. See Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 300-01 (1990) (Scalia, J., concurring) ("This Court . . . has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself." (emphasis added)).
166. This definition is in contrast to the conception of tradition as aspirational principles. See supra note 49.
167. Poe, 367 U.S. at 544 (Harlan, J., dissenting) (emphasis added).
168. Cruzan, 497 U.S. at 294 (Scalia, J., concurring); see also Michael H., 491 U.S. at 122 (requiring that a right be "traditionally protected" to merit due process protection).
169. See supra notes 122-26 and accompanying text.
170. See supra notes 122-25 and accompanying text.
171. See Michael H., 491 U.S. at 123-27 & n.6.
172. Compare Michael H., 491 U.S. at 121-27 (1989) (devoting one paragraph of the opinion to general substantive due process beliefs and then devoting four pages of the opinion to an in-depth historical analysis of the relevant traditions) with Poe v. Ullman, 367 U.S. 497, 540-53, 554-55 (1961) (Harlan, J., dissenting) (writing about due process for fourteen pages and then devoting only two paragraphs of the dissent to historical analysis).
173. Poe, 367 U.S. at 554-55 (Harlan, J., dissenting). Justice Harlan demonstrated the linchpin of his analysis by stating: [C]onclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime. Id. at 554.
174. See Tribe & Dorf, supra note 127, at 1090-93 (blasting Justice Scalia's specificity in defining rights).
175. See Michael H., 491 U.S. at 127 n.6.
176. Id. at 128 n.6.
177. See supra notes 61-65 and accompanying text.
178. Many commentators cite Poe for the proposition that it created the right of privacy. See, e.g., Fried, supra note 20, at 35 (calling Justice Harlan the "author of the constitutional right to privacy"); Kent Greenawalt, Justice Harlan's Conservatism and Alternative Possibilities, 36 N.Y.L. Sch. L. Rev. 53, 68 (1991) (noting that Justice Harlan's dissent in Poe is a "landmark" in the expansion of fundamental rights).
179. Poe v. Ullman, 367 U.S. 497, 552 (1961) (Harlan, J., dissenting). Justice Harlan's reason for this specific level of definition is because it fits in with the common law traditions of judicial restraint and slow evolution of principles. See supra notes 64-65 and accompanying text.
180. See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring) (basing his decision in Griswold on the same grounds he stated in Poe). But see Michael H., 491 U.S. at 139-40 (Brennan, J., dissenting) (arguing that the asserted right in Griswold was not defined at the most specific level of generality).
181. Poe, 367 U.S. at 542 (Harlan, J., dissenting).
182. These rights would be known as "unenumerated fundamental rights." These are rights that are not expressly granted by the Constitution, but are deemed to be essential to the "liberty" guaranteed by the Due Process Clause. See Griswold, 381 U.S. at 492-93 (Goldberg, J., concurring). But see Dworkin, Dominion, supra note 47, at 129-44 (arguing that all rights are enumerated if the Constitution is regarded as a scheme of abstract principles).
183. See, e.g., Michael H., 491 U.S. at 141 (Brennan, J., dissenting) (criticizing Scalia's method for turning the Constitution into a "stagnant, archaic, hidebound document"); Fleming, Constructing, supra note 47, at 266 (stating that Scalia's due process is flawed because it cannot "criticize historical practices"); cf. Young, supra note 70, at 665 ("Originalists . . . have long rejected the idea that the meaning of the Constitution can evolve in a manner similar to the common law.").
184. 57 U. Cin. L. Rev. 849 (1989). This article refers to originalism generally, but it can be used to demonstrate Scalia's views on due process because they generally stem from his espousal of originalism. See supra part II. This article was published in the same year Justice Scalia handed down his Michael H. opinion. In fact, Justice Scalia's opinion in Michael H. is, in many ways, an example of the evolutionary potential of his due process formulation. See infra note 165.
185. Id. at 864. Justice Scalia then proceeded to state that this compromise is "[p]erhaps not a bad characteristic for a constitutional theory." Id.
186. See Bork, supra note 68, at 235-40 (criticizing Justice Scalia for his Michael H. opinion). Indeed, Robert Bork criticizes Justice Scalia for breaking from originalism by recognizing the legitimacy of substantive due process. He says that any recognition of substantive due process is illegitimate because it allows judges to discover rights not specifically enumerated in the Constitution. See id. If rights recognized by the Constitution are not specifically enumerated in the text, then the logical conclusion is that there is potential for evolution in the Constitution.
187. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (recognizing the "unenumerated" right of nontraditional nuclear families to reside together); Loving v. Virginia, 388 U.S. 1 (1967) (recognizing the "unenumerated" right to marry); Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing the "unenumerated" right of privacy).
188. South Carolina v. Gathers, 490 U.S. 805, 824-25 (1989) (Scalia, J., dissenting).
189. See Scalia, supra note 68, at 863.
190. See Cook, supra note 90, at 861-62; see also supra note 165 (discussing Bork's criticism of Justice Scalia's substantive due process formulation because it recognizes "unenumerated" fundamental rights).
191. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1184-85 (1989).
192. See supra notes 111-17 and accompanying text.
193. See Michael H. v. Gerald D., 491 U.S. 110, 141 (1989) (Brennan, J., dissenting) (referring to the "stagnant" and "hidebound" Constitution that Justice Scalia's due process formulation provides for).
194. See Fried, supra note 20, at 35.
195. See supra note 22 and accompanying text. Laurence Tribe and Michael Dorf seem to believe that Justice Harlan's substantive due process formulation is middle of the road. See Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 76-79 (1991); Tribe & Dorf, supra note 127, at 1068-71.
196. See supra note 22 and accompanying text. Laurence Tribe and Michael Dorf seem to believe that Justice Harlan's substantive due process formulation is middle of the road. See Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 76-79 (1991); Tribe & Dorf, supra note 127, at 1068-71.
197. See Charles Fried, Order and Law 72 (1991); Tribe & Dorf, supra note 174, at 76-79; see also Fleming, Autonomy, supra note 10, at 60 (stating that Justice Harlan's substantive due process formulation is praised by both liberal and conservative fundamental rights theorists).
198. See Charles Fried, Order and Law 72 (1991); Tribe & Dorf, supra note 174, at 76-79; see also Fleming, Autonomy, supra note 10, at 60 (stating that Justice Harlan's substantive due process formulation is praised by both liberal and conservative fundamental rights theorists).
199. See Charles Fried, Order and Law 72 (1991); Tribe & Dorf, supra note 174, at 76-79; see also Fleming, Autonomy, supra note 10, at 60 (stating that Justice Harlan's substantive due process formulation is praised by both liberal and conservative fundamental rights theorists).
200. See supra notes 48-53 and accompanying text.
201. For a prime example of this error, see West, supra note 22, at 442-44. Professor West, in discussing liberty, praises the "liberal concept of ordered liberty so eloquently spelled out by Justice Harlan" in his substantive due process formulation. Id. at 444. West, however, only quotes from the liberal language Justice Harlan includes in his dissent in Poe. Id. at 443. West ignores the import of Justice Harlan's dissent: that, despite the abstract nature of the Due Process Clause, the only rights that merit due process protection are those rights that have been historically protected in our society. See Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). This is a crucial mistake. Although many liberals might want to separate the liberal parts of Harlan's formulations from the restrictive parts, this bifurcation does not portray his real views. See supra part I.B.
202. See supra notes 48-53 and accompanying text.
203. Poe, 367 U.S. at 542 (Harlan, J., dissenting).
204. Id. at 544.
205. Id. at 542.
206. See supra notes 28-29 and accompanying text.
207. Poe, 367 U.S. at 552 (Harlan, J., dissenting).
208. See Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521, 525-31 (1989). Sandel draws a distinction between "old privacy" and "new privacy." Old privacy is the right to keep "intimate affairs from public view," id. at 526, and new privacy is the right to "make certain sorts of choices, free of interference by the state." Id. at 528. Sandel argues that Justice Harlan based his dissent in Poe "on grounds that distinguish the old privacy from the new." Id. at 526. Justice Harlan did not object to the Connecticut law banning contraceptives because he believed that married couples should be free to make their own decisions. Instead, Justice Harlan objected to the "obnoxiously intrusive means" Connecticut had chosen to effectuate their law. Id. (quoting Poe v. Ullman, 367 U.S. 497, 554 (Harlan, J., dissenting)). Justice Harlan was not on the Court when it made its first "new" privacy decision in Eisenstadt v. Baird, 405 U.S. 438 (1972), so nobody knows for sure how Justice Harlan would have voted in these cases. Arguably, however, Justice Harlan would only secure basic liberties asserted in the "old" privacy cases.
209. 410 U.S. 113 (1973) (holding that a woman has a right to choose whether to terminate her pregnancy).
210. 505 U.S. 833 (1992) (reaffirming the holding of Roe).
211. 431 U.S. 494 (1977) (holding that members of nontraditional nuclear families have a fundamental right to live together).
212. 478 U.S. 186 (1986) (refusing to extend due process protection to homosexuals).
213. See Fried, supra note 20, at 52 n.121 (expressing "little doubt that [Harlan] would have held with the dissenters in Roe").
214. Numerous states still had laws prohibiting abortion in 1972. See Roe v. Wade, 410 U.S. 113, 118 n.2 (1973).
215. Moore v. City of E. Cleveland, 431 U.S. 494 (1977). In Moore, East Cleveland had passed an ordinance that allowed only members of the same family to reside in an occupancy together. The ordinance permitted grandparents to live with their grandchildren if the grandchildren were siblings. A grandmother who shared her home with two grandsons, who were cousins rather than brothers, was convicted for violating the ordinance. She appealed her conviction to the Supreme Court. Id. at 495-98.
216. See Ackerman, supra note 15, at 25 ("[I]t seems a big step for [Justice Harlan] to move from conventional marriage . . . to other forms of intimate relationship."); Tribe & Dorf, supra note 174, at 78. But see Ackerman, supra note 15, at 23 (noting the possibility that Justice Harlan would have extended due process protection past the "limited scope" of Poe). 193. Poe v. Ullman, 367 U.S. 497, 546 (1961) (Harlan, J., dissenting).
217. See Ackerman, supra note 15, at 23 (stating that Justice Harlan was "prepared to guarantee privacy only to conventional folk who satisfy the politically dominant view of an acceptable intimate partner"); Fried, supra note 20, at 52 n.121 (stating that Justice Harlan would not condemn laws proscribing "homosexuality").
218. This Note will discuss Justice Harlan's views on equal protection in detail later. Justice Harlan wrote opinions in five cases where the Court based its decision on the grounds that there either was or was not a fundamental right asserted based on the Equal Protection Clause. Justice Harlan dissented in every one of these cases that granted a fundamental right under equal protection and concurred in the one case that denied a fundamental right under equal protection. See infra note 211 and accompanying text.
219. This is in contrast to Justice Harlan's approach in Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (Harlan, J., concurring).
220. See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 680 (1966) (Harlan, J., dissenting); Reynolds v. Sims, 377 U.S. 533, 589 (1964) (Harlan,
221. See Shapiro v. Thompson, 394 U.S. 618, 655 (1969) (Harlan, J., dissenting). Justice Harlan may have believed that the right to travel was one of the basic liberties. In his dissent in Shapiro, Justice Harlan proclaimed that "the right to travel interstate is a 'fundamental' right . . . having its source in the Due Process Clause." Id. at 671. Justice Harlan, however, concluded that the one-year residency requirement at issue in Shapiro did not impermissibly infringe upon this "fundamental" right. Id. at 677. Although Justice Harlan claimed that the right to travel is a fundamental right, he clearly did not apply strict scrutiny to the residency requirements. Justice Harlan employed a two-step analysis to conclude that the residency requirements were constitutional. First, he identified four "legitimate" government interests for the requirements. Id. at 672-74. Then Justice Harlan determined that because the requirements only infringed the right to travel incidentally, the governmental interests outweighed the burden on interstate travel. Id. at 676-77. Thus, Justice Harlan's conception of due process did not protect the right to travel throughout the nation.
222. 397 U.S. 471, 489 (1970) (Harlan, J., concurring) (denying due process protection for a right to minimum welfare entitlements).
223. See supra notes 46-59 and accompanying text.
224. See Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).
225. See supra notes 182-202 and accompanying text; see also Ackerman, supra note 15, at 23 (concluding that "the libertarian growth potential of [Harlan's dissent in] Poe seems modest").
226. See id. at 25 ("Given Harlan's particularizing style, it seems a big step for him to move from conventional marriage, hallowed by time immemorial, to other forms of intimate relationship.").
227. See, e.g., id. at 7, 9 (characterizing Justice Harlan as a common law jurist and stating that a common law jurist relies primarily on precedent in deciding a case); Fleming, Autonomy, supra note 10, at 60 & n.352 (labeling Justice Harlan a "preservative conservative" and defining preservative conservatives as judges who "mostly attempt to preserve precedents").
228. See, e.g., Robert A. Burt, Precedent and Authority in Antonin Scalia's Jurisprudence, 12 Cardozo L. Rev. 1685, 1685 (1991) ("More openly than any other Justice sitting today, Antonin Scalia is ready to reverse prior Supreme Court precedent."); Strauss, supra note 114, at 1699 ("We knew from the start that Justice Scalia was not a great fan of stare decisis.").
229. Strauss, supra note 114, at 1706.
230. 398 U.S. 375 (1970).
231. Id. at 409.
232. Id. at 381.
233. See Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting) (stating that due process analysis should take into account "the traditions from which [the country] broke").
234. The rights Harlan rejected under equal protection analyses are striking. In Reynolds v. Sims and Harper v. Virginia State Board of Elections, the Court, relying on equal protection, held that a fundamental right to a vote of equal weight exists. Reynolds v. Sims, 377 U.S. 533, 554-55 (1964); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966). Harlan dissented in both of these cases, refusing to recognize a fundamental right to vote. See Reynolds, 377 U.S. at 590 (Harlan, J., dissenting); Harper, 383 U.S. at 681 (Harlan, J., dissenting). In Reynolds, Harlan would not have established a fundamental right to vote because "the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures." 377 U.S. at 590-91 (Harlan, J., dissenting). In Shapiro v. Thompson, the Court relied on equal protection to recognize a fundamental right to travel, and again Harlan dissented. 394 U.S. 618, 661 (1969) (Harlan, J., dissenting). Harlan wrote that "I know of nothing which entitles this Court to pick out particular human activities, characterize them as 'fundamental,' and give them added protection under an unusually stringent equal protection test." Id. at 662. Also, Harlan concurred in Dandridge v. Williams, which rejected a fundamental right to welfare benefits under equal protection. 397 U.S. 471, 489 (1970) (Harlan, J., concurring).
235. Before these cases, the Court had traditionally used equal protection to protect "suspect classifications." A suspect classification refers to laws that discriminate against a class of people that have been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political processes." See Murphy et al., supra note 2, at 971-72 (quoting San Antonio v. Rodriguez, 411 U.S. 1, 28 (1973)). By 1960, the only suspect classifications were race, see Brown v. Board of Ed., 347 U.S. 483 (1954), and national origin. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
236. 383 U.S. 663 (1966).
237. Id. at 681 (Harlan, J., dissenting); see supra note 212.
238. 394 U.S. 618 (1969).
239. Id. at 658 (Harlan, J., dissenting).
240. See Strauss, supra note 114, at 1708 (asserting that, in principle, one could view Justice Scalia as a traditionalist).
241. See Michael H. v. Gerald D., 491 U.S. 110, 123-27 & n.6 (1989) (citing cases such as Bowers v. Hardwick, 478 U.S. 186 (1986), Roe v. Wade, 410 U.S. 113 (1973), and Griswold v. Connecticut, 381 U.S. 479 (1965) to support his substantive due process formulation). This is not to say that Justice Scalia selects which precedents are tradition and which precedents are not by any coherent method. See Strauss, supra note 114, at 1708-10 (criticizing Justice Scalia for not being consistent with his "traditionalism"); Zipursky, supra note 134, at 315-16 (accusing Justice Scalia of pre-deciding cases according to his a priori political reasoning).
242. See Burnham v. Superior Court, 495 U.S. 604, 610-16 (1990) (citing 43 cases that supported his holding that transient jurisdiction is part of our nation's tradition).
243. 410 U.S. 113 (1973).
244. See Michael H., 491 U.S. at 121-24.
245. Id. at 128 n.6.
246. Michael H., 491 U.S. at 110 (Scalia, J.) (plurality opinion); Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 292 (1990) (Scalia, J., concurring).
247. See Fleming, Autonomy, supra note 10, at 60.
248. Id. at 60 n.352. Justice O'Connor is an example of a preservative conservative. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 854-69 (1992) (using respect for precedent as a reason for not overruling Roe); see also Anders, supra note 7, at 925-26 (characterizing Justice O'Connor as a "preservative conservative").
249. Fleming, Autonomy, supra note 10, at 60 n.352.
250. See id. at 60 (identifying Justice Scalia as a "counterrevolutionary conservative"); Strauss, supra note 114, at 1714-15 (stating that the "target" of Justice Scalia's counterrevolution is the Warren Court).
251. See Ackerman, supra note 15, at 7. The "revolution of 1937" refers to the revolutionary policies of the New Deal Court. See supra notes 39-40 and accompanying text.
252. Ackerman, supra note 15, at 7.
253. Id.
254. See id. at 21. This is not meant to imply that Justice Harlan brought back a liberal or expansive version of liberty in 1961. In fact, his concept of liberty was very narrow and restrictive. See supra part III.B.2.
255. 198 U.S. 45 (1905).
256. 300 U.S. 379 (1937). See Fleming, Constructing, supra note 47, at 212 ("West Coast Hotel v. Parrish officially repudiated the Lochner era, marking the first death of substantive due process." (footnote omitted)).
257. 300 U.S. 379 (1937). See Fleming, Constructing, supra note 47, at 212 ("West Coast Hotel v. Parrish officially repudiated the Lochner era, marking the first death of substantive due process." (footnote omitted)).
258. See Fleming, Constructing, supra note 47, at 211 n.1.
259. Lochner, 198 U.S. at 53. Lochner is now regarded as a deplorable decision and has been the thorn in many fundamental rights theorists' side. See Fleming, Constructing, supra note 47, at 211-12. Every time a liberal judge or fundamental rights theorist argues for protecting a right not enumerated in the Constitution, they face accusations of "Lochnering." This phrase was coined by John Hart Ely in response to the Court's decision in Roe v. Wade, 410 U.S. 113 (1973). See John H. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 943-44 (1973).
260. Lochner, 198 U.S. at 53. Lochner is now regarded as a deplorable decision and has been the thorn in many fundamental rights theorists' side. See Fleming, Constructing, supra note 47, at 211-12. Every time a liberal judge or fundamental rights theorist argues for protecting a right not enumerated in the Constitution, they face accusations of "Lochnering." This phrase was coined by John Hart Ely in response to the Court's decision in Roe v. Wade, 410 U.S. 113 (1973). See John H. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 943-44 (1973).
261. See supra note 233 and accompanying text.
262. This is not saying that Justice Harlan was bringing back Lochner in the literal sense; he was not arguing for the liberty of contract. See Ackerman, supra note 15, at 20-21 (noting that Justice Harlan actually took an anti-Lochner stance in this respect). What he was doing was bringing back the spirit of Lochner, giving meaning to the word "liberty" in the Due Process Clause.
263. Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24 (1992).
264. Id. at 58.
265. Id. at 62.
266. Id. at 58.
267. Id. at 59.
268. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).
269. Id.
270. See Sullivan, supra note 238, at 79.
271. See Scalia, supra note 170, at 1178.
272. 505 U.S. 1003 (1992).
273. 505 U.S. 377 (1992).
274. Lucas, 505 U.S. at 1030.
275. R.A.V., 505 U.S. at 396.
276. Michael H. v. Gerald D., 491 U.S. 110, 122, 127 n.6 (1989).
277. See Tribe & Dorf, supra note 127, at 1085-98.
278. Id. at 1086.
279. Michael H., 491 U.S. at 137 (Brennan, J., dissenting).
280. See Tribe & Dorf, supra note 127, at 1090-92.
281. Id. at 1090 (stating that asking how to define the most specific level of generality is like asking "'whether a particular line is longer than a rock is heavy'" (quoting Bendix Autolite Corp. v. Midwest Enter., 468 U.S. 888, 897 (1988) (Scalia, J., concurring))).
282. Michael H., 491 U.S. at 128 n.6.
283. See Tribe & Dorf, supra note 127, at 1090-92; see also Timothy L. Raschke Shattuck, Note, Justice Scalia's Due Process Methodology: Examining Specific Traditions, 65 S. Cal. L. Rev. 2743, 2770-71 (1992) (stating that judicial discretion becomes involved when judges are forced to identify the next specific level of generality).
284. See Tribe & Dorf, supra note 127, at 1090-92; see also Timothy L. Raschke Shattuck, Note, Justice Scalia's Due Process Methodology: Examining Specific Traditions, 65 S. Cal. L. Rev. 2743, 2770-71 (1992) (stating that judicial discretion becomes involved when judges are forced to identify the next specific level of generality).
285. See supra note 246.
286. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).
287. See supra notes 252-59 and accompanying text.
288. See supra notes 1-6.
289. See Dworkin, supra note 6, at 29 ("[Casey] may prove to be one of the most important Court decisions of this generation.").
290. Casey v. Planned Parenthood, 505 U.S. 833, 848-50 (1992).
291. See supra part III.
292. See, e.g., Fleming, Autonomy, supra note 10, at 58-59 (comparing Scalia's formulation to the legendary Scylla); Tribe & Dorf, supra note 127, at 1098 (stating that adoption of Justice Scalia's Michael H. formulation would be "frightening"); Zipursky, supra note 134, at 321 (stating that Justice Scalia's substantive due process formulation rejects even a narrow conception of a "living Constitution").
293. See, e.g., Fleming, Autonomy, supra note 10, at 58-59 (comparing Scalia's formulation to the legendary Scylla); Tribe & Dorf, supra note 127, at 1098 (stating that adoption of Justice Scalia's Michael H. formulation would be "frightening"); Zipursky, supra note 134, at 321 (stating that Justice Scalia's substantive due process formulation rejects even a narrow conception of a "living Constitution").
294. See, e.g., Fleming, Autonomy, supra note 10, at 58-59 (comparing Scalia's formulation to the legendary Scylla); Tribe & Dorf, supra note 127, at 1098 (stating that adoption of Justice Scalia's Michael H. formulation would be "frightening"); Zipursky, supra note 134, at 321 (stating that Justice Scalia's substantive due process formulation rejects even a narrow conception of a "living Constitution").
295. See, e.g., Tribe & Dorf, supra note 127, at 1068-71 (approving of Justice Harlan's substantive due process formulation); West, supra note 22, at 442-44 (same); Dworkin, supra note 6, at 29 & n.7 (accepting the joint opinion's adoption of Justice Harlan's formulation). But see, e.g., Fleming, supra note 10, at 59-63 (criticizing Justice Harlan's substantive due process formulation).
296. West, supra note 22, at 444. Professor West, however, was not praising Justice Harlan's formulation for its liberalness. To West, although Justice Harlan's formulation is liberal, Justice Harlan's formulation, and all "the liberty-expanding cases of the Warren Court era [are] unduly cramped and ungenerous." Id. Thus, Professor West accepts Justice Harlan's formulation as liberal, but then argues that it is still not liberal enough. This Note agrees that Justice Harlan's formulation is not sufficiently liberal, but is not willing to accept it as anything short of narrowly conservative.
297. See Strossen, supra note 21, at 134, 143-44.
298. Id. at 144.
299. See supra part III.B.2.
300. See Tribe & Dorf, supra note 127, at 1093; see also Young, supra note 126, at 584-85 (stating that Tribe was concerned that Justice Scalia's formulation would eliminate the right to abortion).
301. See Tribe & Dorf, supra note 127, at 1068-69.
302. See supra notes 48-53 and accompanying text.
303. See Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).
304. One of the linchpins of the common law method is to derive general principles from prior cases, but a common law jurist never draws grand, abstract principles from these precedents. Instead, a common law jurist moves the law forward in a slow, plodding way. See Ackerman, supra note 15, at 9 (stating that a common law judge is "concerned with a practice's gradual evolution through long periods of time").
305. Cf. Fleming, Autonomy, supra note 10, at 60 ("[Justice Harlan], the most conservative member of the Warren Court, has become the last best hope of liberal theorists . . . .").
306. See Dworkin, supra note 6, at 29 (approving of the joint opinion in Casey "because it reaffirmed and strengthened the reasoning behind . . . Roe v. Wade"); Sullivan, supra note 238, at 24-25 (stating that the Court "spectacularly failed to overrule Roe v. Wade" in Casey).
307. See Dworkin, supra note 6, at 29 (stating that Casey "may prove to be one of the most important Court decisions of this generation, not only because it reaffirmed . . . Roe v. Wade . . . but because three key justices also reaffirmed a more general view of the nature of the Constitution which they had been appointed to help destroy"); Sullivan, supra note 6, at A23 (stating that the crucial part of the joint opinion was that it "ringingly reaffirmed the core of Roe").
308. This statement is not meant to suggest that Professors Dworkin and Sullivan have completely stopped arguing for the protection of fundamental rights. For example, Professor Dworkin wrote a very strong argument for the protection of abortion and euthanasia in 1994. See Dworkin, Dominion, supra note 47. Some may argue that liberal commentators are not giving up the fight for protection of individual liberties. Instead, they would say that these commentators are being realistic (because the Court is conservative) and learning to play according to conservative rules. See Young, supra note 126, at 618 (calling for liberals to "identify, analyze, and adapt the methods used by the Rehnquist Court to their own devices"). Although Young may have a point when he calls for litigators to adapt these methods, id. at 587-88, academics should not do the same. In fact, one of the three reasons Young lists in favor of liberals adopting conservative methods is that it will "prepare the way for the eventual reversal of substantive decisions through the use of the same methodologies by the next liberal Court." Id. at 618. This shows that Young misunderstands what the next liberal Court should do. It should not be constrained to using conservative methods. Instead, it should take its guidance from liberal theories of constitutional interpretation, and then implement these liberal theories when a substantive due process case is before the Court.
309. These three Justices are Justice O'Connor, Justice Souter, and Justice Kennedy. See Planned Parenthood v. Casey, 505 U.S. 833, 843 (1992) (joint opinion).
310. An example of the possibility for a significant turnaround is Justice Blackmun. Justice Blackmun was considered a conservative when President Nixon appointed him to the Court in 1969. As the years progressed, however, he became one of the last bastions of liberalism on the Rehnquist Court. He is best known for writing the majority opinion in Roe v. Wade, 410 U.S. 113, 116 (1973).
311. See, e.g., John H. Ely, supra note 84, at 162-64 (arguing that the Equal Protection Clause, not the Due Process Clause, would protect homosexuals' rights); Sunstein, supra note 39, at 270-85 (making an equal protection argument for protecting a woman's right to choose whether to terminate her pregnancy); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208-19 (1994) (making an argument for protection of homosexuals through the Equal Protection Clause); Catharine A. MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281 (1991) (making an equal protection argument for protecting women's rights); Sunstein, supra note 127, at 1170-78 (arguing that due process offers insufficient protection to homosexuals but equal protection offers adequate protection).
312. See, e.g., John H. Ely, supra note 84, at 162-64 (arguing that the Equal Protection Clause, not the Due Process Clause, would protect homosexuals' rights); Sunstein, supra note 39, at 270-85 (making an equal protection argument for protecting a woman's right to choose whether to terminate her pregnancy); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208-19 (1994) (making an argument for protection of homosexuals through the Equal Protection Clause); Catharine A. MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281 (1991) (making an equal protection argument for protecting women's rights); Sunstein, supra note 127, at 1170-78 (arguing that due process offers insufficient protection to homosexuals but equal protection offers adequate protection).
313. See, e.g., John H. Ely, supra note 84, at 162-64 (arguing that the Equal Protection Clause, not the Due Process Clause, would protect homosexuals' rights); Sunstein, supra note 39, at 270-85 (making an equal protection argument for protecting a woman's right to choose whether to terminate her pregnancy); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208-19 (1994) (making an argument for protection of homosexuals through the Equal Protection Clause); Catharine A. MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281 (1991) (making an equal protection argument for protecting women's rights); Sunstein, supra note 127, at 1170-78 (arguing that due process offers insufficient protection to homosexuals but equal protection offers adequate protection).
314. See, e.g., John H. Ely, supra note 84, at 162-64 (arguing that the Equal Protection Clause, not the Due Process Clause, would protect homosexuals' rights); Sunstein, supra note 39, at 270-85 (making an equal protection argument for protecting a woman's right to choose whether to terminate her pregnancy); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208-19 (1994) (making an argument for protection of homosexuals through the Equal Protection Clause); Catharine A. MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281 (1991) (making an equal protection argument for protecting women's rights); Sunstein, supra note 127, at 1170-78 (arguing that due process offers insufficient protection to homosexuals but equal protection offers adequate protection).
315. See, e.g., John H. Ely, supra note 84, at 162-64 (arguing that the Equal Protection Clause, not the Due Process Clause, would protect homosexuals' rights); Sunstein, supra note 39, at 270-85 (making an equal protection argument for protecting a woman's right to choose whether to terminate her pregnancy); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208-19 (1994) (making an argument for protection of homosexuals through the Equal Protection Clause); Catharine A. MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281 (1991) (making an equal protection argument for protecting women's rights); Sunstein, supra note 127, at 1170-78 (arguing that due process offers insufficient protection to homosexuals but equal protection offers adequate protection).
316. See Catharine A. MacKinnon, Privacy v. Equality: Beyond Roe v. Wade, in Feminism Unmodified: Discourses on Life and Law 100-02 (1987); Sunstein, supra note 127, at 1171, 1174-75.
317. See Catharine A. MacKinnon, Privacy v. Equality: Beyond Roe v. Wade, in Feminism Unmodified: Discourses on Life and Law 100-02 (1987); Sunstein, supra note 127, at 1171, 1174-75.
318. See Sunstein, supra note 127, at 1171; see also Fleming, Constructing, supra note 47, at 267 (analyzing Sunstein's approach to due process and equal protection). But see Sunstein, supra note 127, at 1173 (conceding that due process can at times be aspirational rather than backward-looking).
319. See Railway Express Agency v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring).
320. Under due process jurisprudence, any law that infringes on a fundamental right must meet the "strict scrutiny" test. This means that the government must prove that: (1) a compelling governmental interest is at stake; (2) the government action in question is "narrowly tailored" to meet this compelling governmental interest; and (3) the government could not secure the compelling interest by any less restrictive alternative. See Murphy et al., supra note 2, at 892-93. This test is very stringent, thus fundamental rights are very secure.
321. See Fleming, Constructing, supra note 47, at 268; see also Tribe & Dorf, supra note 127, at 1095 ("It is hard to imagine a defensible approach to the two clauses that does not take greater account of the inseparability of liberty and equality.").
322. See Fleming, Constructing, supra note 47, at 268; see also Tribe & Dorf, supra note 127, at 1095 ("It is hard to imagine a defensible approach to the two clauses that does not take greater account of the inseparability of liberty and equality.").
323. See Fleming, Constructing, supra note 47, at 268. As Professor Fleming states, these commentators, without a conception of liberty, "cannot satisfactorily answer the question, 'Equality with respect to what?'" Id.
324. See supra notes 283-89 and accompanying text.
325. The Privileges or Immunities Clause of the Fourteenth Amendment reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const, amend. XIV, § 1.
326. 83 U.S. (16 Wall.) 36 (1872). In Slaughter-House, a group of butchers in Louisiana challenged the legitimacy of a monopoly on the slaughter-house business awarded by the state legislature. Id. at 57-66. The butchers challenged the monopoly on privileges or immunities, equal protection, and due process grounds. Id. at 66. The Court rejected all these Fourteenth Amendment claims. Additionally, the Court limited the thrust of the Privileges or Immunities Clause to protect only those rights that were already guaranteed by the Constitution or implicit in citizens' relationship with the government. Id. at 78-79. This interpretation made the privileges or Immunities Clause "a vain and idle enactment." Id. at 96 (Field, J., dissenting).
327. See Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 Mich. L. Rev. 981, 982 n.1. (1979). Some sentiment exists that the Privileges or Immunities Clause is a firmer ground than the Due Process Clause for protecting rights. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 925-28 (1986).
328. See Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 Mich. L. Rev. 981, 982 n.1. (1979). Some sentiment exists that the Privileges or Immunities Clause is a firmer ground than the Due Process Clause for protecting rights. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 925-28 (1986).
329. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const, amend. IX. The Ninth Amendment is such a potentially fruitful source of rights because its words suggest that there are certain rights that had not been specifically enumerated in the text of the Constitution or the first eight amendments. See Charles L. Black, Jr., The Unfinished Business of the Warren Court, 46 Wash. L. Rev. 3, 36-37 (1970); Ely, supra note 84, at 38.
330. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const, amend. IX. The Ninth Amendment is such a potentially fruitful source of rights because its words suggest that there are certain rights that had not been specifically enumerated in the text of the Constitution or the first eight amendments. See Charles L. Black, Jr., The Unfinished Business of the Warren Court, 46 Wash. L. Rev. 3, 36-37 (1970); Ely, supra note 84, at 38.
331. See Bork, supra note 68, at 166 (likening the Ninth Amendment to an inkblot because it is so hopelessly vague that its meaning cannot be deciphered); Ely, supra note 84, at 34 (stating that the Ninth Amendment is regarded as somewhat of a joke in "legal circles"). The Ninth Amendment, however, should not be regarded this way. In fact, the language of the Ninth Amendment is perhaps the best evidence that the Constitution protects certain "unenumerated" fundamental rights. See supra note 293.
332. See Dworkin, supra note 6, at 29.
333. The joint opinion only had three supporters, Justices O'Connor, Kennedy, and Souter. Justices Blackmun and Stevens, concurred in the judgment, but did not join the joint opinion's reasoning. See Planned Parenthood v. Casey, 505 U.S. 833, 911 (1992) (Stevens, J., concurring in part and dissenting in part); id, at 922 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
334. Tribe & Dorf, supra note 127, at 1098.