Conclusion
Constitutional self-government is not possible if the Supreme Court of the United States assumes—and is allowed to assume—the power to declare invalid, based on the right to privacy, the state laws that seek to express moral choices. That the Court has undertaken to do this because of the notion of substantive due process is the bad news. But it is not the worst news. Far more troubling is the fact that there is not now on the Court any justice willing to repudiate the idea that the due process clauses do not deal simply with procedures but reach to the “substantive validity” of the laws.
To his credit, Justice White in his opinion in Bowers was at least willing to cast doubt on the prudence of those precedents—albeit stopping far short of rejecting them as a matter of principle. The willingness of earlier courts, he suggested, to assume that the due process clauses have a “substantive content . . . recognizing rights that have little or no textual support in the constitutional language” had posed problems in the past. But while “much of the substantive gloss” had been repudiated, there was much that remained. Thus he was willing to resist the call to find the right of homosexual sodomy included in the meaning of liberty in those clauses. “The Court,” he pointed out, “is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”100
Today Justice Scalia is willing to condemn the idea of substantive due process but most explicitly only outside the pages of the United States Reports.101 In views expressed off the bench, he has argued forcefully that the “inescapable terms” of the due process clauses guarantee “only process.” The result of the line of cases creating and perpetuating the idea of substantive due process has been “to render democratically adopted texts mere springboards for judicial lawmaking.”102 But the weight of the precedents is such that even he tends to acquiesce in their lingering legitimacy as a matter of binding constitutional law. The only question is how to prevent expanding the doctrine to include new judge-made rights that might satisfy his colleagues’ yearning for social justice.103
The claims of precedent in a common law system are compelling; they are less so as a matter of constitutional law. To allow previously and wrongly decided cases to alter in perpetuity the original meaning of the Constitution is to misunderstand the nature of constitutional government and inevitably to supplant the founders’ intentions with contemporary judges’ personal notions of justice. A strict and unyielding adherence to precedent would allow nothing to be done about what has been called “the derelicts of constitutional law,” universally abhorred errors of judicial lawmaking such as Dred Scott v. Sandford and Plessy v. Ferguson.104 Although Justices Kennedy, O’Connor, and Souter in Casey might be willing to defend such a strict embrace of stare decisis as essential to maintaining the Court’s legitimacy, one is reminded of a more sober view of the doctrine, that “precedents prove only what was done, and not what was well done.”105 That is most assuredly the case when it comes to the misbegotten string of cases imposing the notion of substantive due process.
Unless a repudiation of the doctrine takes place, and it is expunged as unconstitutional from the body of the nation’s constitutional law—and that is likely to take place only by a constitutional amendment emphasizing that due process of law is a procedural, not a substantive, concern—government by the judiciary will continue and with it the further erosion of constitutional self-government in any meaningful sense. Indeed, it is impossible to avoid the conclusion that the species of judicial activism in the right to privacy cases is inconsistent not only with the origin, history, and meaning of the Constitution but with the understanding of popular government in its most fundamental sense. And, as history shows, there is no reason to think that the expansion of this judicially created right has reached its limits.
There is, in fact, every reason to believe, as Justice Scalia warned in his dissent in Lawrence, that there will be few laws that allegedly impinge on the notion of privacy that will be found constitutional in the years ahead. Indeed, since Bowers v. Hardwick was overruled on the ground that the states do not have the legitimate authority to pass laws “based on moral choices” when it comes to sexual intimacy, it is hard to see how “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” could ever pass constitutional muster.106 Justice Kennedy’s choice of words in his opinion in Lawrence seems to make that clear. Under the substantive due process logic of Kennedy’s opinion, liberty “presumes an autonomy of self that includes . . . certain intimate contact.”107 Precisely what sort of “intimate contact” is included will depend not on constitutional text or intention or even the legal history and traditions of the country; it will depend only on what a majority of the justices conclude is “reasonable.”
At the height of the controversies over judge-made law in the 1930s, it was lamented that “[u]nder the guise of the supremacy of the law, we have established the supremacy of the judges.”108 As Lawrence v. Texas makes clear, nothing has changed.
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The author is grateful to Curtis Gannon, Ralph Rossum, and the late James McClellan for their comments and suggestions. This article is respectfully dedicated to the memory of Professor McClellan. Epigraph: Charles E. Shattuck, “The True Meaning of the Term ‘Liberty’ in those Clauses in the Federal and State Constitutions which Protect ‘Life, Liberty, and Property,’” Harvard Law Review 4 (1891): 365, 366.
1. 156 L. Ed. 2d 508 (2003), 515.
2. Ibid.
3. Ibid., 526.
4. 505 U.S. 833 (1992).
5. 410 U.S. 113 (1973); 505 U.S. 833, 851.
6. Olmstead v. United States, 277 U.S. 438 (1928), 478.
7. Ibid.
8. James Madison to Robert S. Garnett, February 11, 1824, Letters and Other Writings of James Madison, 4 vols. (Philadelphia: J.P. Lippincott, 1865), III: 367–368.
9. Lawrence v. Texas, 156 L. Ed. 2d., 521, quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 850.
10. Bowers v. Hardwick, 478 U.S. 186, 196 (1986).
11. Griswold v. Connecticut, 381 U.S. 479 (1965).
12. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193.
13. See Note “The Right to Privacy in Nineteenth Century America,” Harvard Law Review 94 (1981): 1892–1910.
14. The term “kodakers” was used by the editorial writers at the New York Times, as quoted in Denis O’Brien, “The Right of Privacy,” Columbia Law Review 2 (1902): 437. O’Brien was a member of the New York court that had bucked the state court trend and had denied the extension of the right to privacy in Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), a holding that led to “something of a storm of professional, as well as popular, disapproval.” Wilbur Larremore, “The Law of Privacy,” Columbia Law Review 12 (1912): 693, 694.
Judge O’Brien argued in his law review essay that the “right of privacy . . . is such an intangible thing and conveys such a vague idea that it is doubtful if the law can ever deal with it in any reasonable or practical way.” Any court, he further warned, “that will not respect the limitations of the law upon its own powers will not long retain the respect of the people.” In the law, he concluded, it is “easy enough to wander away from beaten paths that are safe, but it is not always easy to return.” O’Brien, “Right of Privacy,” 441, 445, 448.
15. “Right to Privacy in Nineteenth Century America,” 1910.
16. Warren and Brandeis, “Right to Privacy,” 193, 206, 215, 216.
17. See Larremore, “Law of Privacy”; see also William Prosser, “Privacy,” California Law Review 48 (1960): 383.
There had been firm critics, however. One had argued simply and forcefully near the beginning that “the right to privacy does not exist.” And the attempt to create it was especially worrying. “That our
law is a system that grows and develops in response to the demands of advancing civilization, is due to the fact that new occasions and new circumstances arise which come within the principles upon which our laws were founded; not because new principles and new rights are created to afford that protection or redress which seems to be required.” Herbert Spencer Hadley, “The Right to Privacy,” Northwestern Law Review 3 (1894): 1, 20–21.
18. Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota, 134 U.S. 418 (1890), 458. Three justices dissented noting that such a rate regulation “is a legislative prerogative, not a judicial one,” p. 461. This decision would be denounced years later by Justice Hugo Black for using “the due process clause to protect property rights under natural law concepts.” Adamson v. California, 332 U.S. 46, 79 (1947).
19. Charles Shattuck, “The True Meaning of the Term ‘Liberty’ in those Clauses in the Federal and State Constitutions which Protect ‘Life, Liberty, and Property,’” Harvard Law Review 4 (1891): 365, 366.
20. Justice Samuel Chase in Calder v. Bull, for example, argued that legislative acts against “the general principles of law and reason” and at odds with “the great first principles of the social compact” are unconstitutional. 3 U.S. (3 Dall.) 386, 388 (1798).
21. Chief Justice John Marshall, for example, in Fletcher v. Peck argued that his decision in that case conformed with “certain great principles of justice, whose authority is universally acknowledged.” 10 U.S. 87, 143 (1810). In his only dissent in his entire tenure on the Court, Marshall also saw fit to find arguments outside the text and intention of the Constitution. Individuals, Marshall argued in Ogden v. Saunders, do not derive from government their right to contract but bring that right with them into society; that obligation is not conferred on contracts by positive law but is intrinsic and is conferred by the act of the parties. 25 U.S. 213, 346 (1825).
So, too, was Justice Joseph Story willing to appeal to “the principles of natural justice” and “the fundamental laws of every free government” in reaching the decision in Terrett v. Taylor, 13 U.S. 43, 52 (1815).
22. See Henry Steele Commager, “Constitutional History and the Common Law,” in The Constitution Reconsidered, ed. Conyers Read (New York: Columbia University Press, 1938).
23. Alexander Hamilton in the New York Assembly commenting on the New York Constitution, February 6, 1787, in Harold C. Syrett, ed., The Papers of Alexander Hamilton, 26 vols. (New York: Columbia University Press, 1961–1979), IV: 35.
24. The reliance on such theories, Justice Comstock argued, was “subversive of the just and necessary powers of government.” Wynehamer v. New York, 13 N.Y. 378 (1856), 391.
25. Ibid., 430 (Justice Selden), 453 (Justice Hubbard).
26. 60 U.S. (19 Howard) 393 (1857).
27. Ibid., 450.
28. The Slaughter-House Cases, 83 U.S. 36 (1873), 81. Justice Miller insisted that to hold otherwise would have the unhappy effect of constituting the Supreme Court as a “perpetual censor” of all the legislation of the states.
29. Munn v. Illinois, 94 U.S. 113 (1877); Davidson v. New Orleans, 96 U.S. 97 (1878); Stone v. Farmers’ Loan and Trust Co., 116 U.S. 307 (1886).
30. In 1887 the Court announced they were “under a solemn duty—to look at the substance of things whenever they enter upon the inquiry whether the legislature transcended the limits of its authority.” Mugler v. Kansas, 123 U.S. 623 (1887), 661.
31. 134 U.S. 418 (1890).
32. Reagan v. Farmers’ Loan and Trust Co., 154 U.S. 362 (1894).
33. Smyth v. Ames, 169 U.S. 466 (1898).
34. Allgeyer v. Louisiana, 165 U.S. 578 (1897).
35. 198 U.S. 45 (1905).
36. Ibid., 56.
37. 300 U.S. 379 (1937).
38. Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).
39. Gitlow v. New York, 268 U.S. 652 (1925). For a critique of Gitlow and a warning of the dangers of the opinion, see Charles Warren, “The New ‘Liberty’ under the Fourteenth Amendment,” Harvard Law Review 39 (1926): 431.
40. For a thorough review of the rise of the doctrine of substantive due process see Raoul Berger, Government by Judiciary (Cambridge: Harvard University Press, 1977), 249–282. See also Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986), 144–163; and Eugene W. Hickok Jr. and Gary L. McDowell, Justice vs. Law: Courts and Politics in American Society (New York: Free Press, 1993), 80–121.
41. “Liberty under the Constitution,” Chief Justice Hughes wrote, “is . . . necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” 300 U.S. 379, 391.
42. The Marshall Court had denied that the Bill of Rights applied to the states in Barron v. Baltimore, 7 Peters 243 (1833), but most recently the Court had ruled that the Fourteenth Amendment could serve to alter that relationship in Gitlow v. New York, 268 U.S. 652 (1925).
43. 302 U.S. 319 (1937), 325.
44. Ibid.; ibid. Quoting himself from the majority opinion in Snyder v. Massachusetts, 291 U.S. 97, 105.
45. 302 U.S. 319, 327.
46. 304 U.S. 144 (1937).
47. Ibid., 152, n. 4.
48. 367 U.S. 497 (1961).
49. Ibid., 543.
50. 372 U.S. 726 (1963), 729, 730.
51. 381 U.S. 479 (1965); ibid., 486.
52. 198 U.S. 45 (1905).
53. 381 U.S. 479, 482.
54. Ibid., 484.
55. 367 U.S. 497, 516–517.
56. Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).
57. There is no doubt that the justices involved in the drafting of the decision in Griswold knew that what they were doing was creating a new constitutional right. On April 24, 1965, Justice William Brennan wrote to Justice William O. Douglas with suggestions for improving the draft opinion Justice Douglas had sent to him. Douglas had initially been seeking the right of marital privacy in the notion of the freedom of association, a right earlier created by the Court by blending the rights of freedom of speech and freedom of assembly that are textually present in the First Amendment. Brennan cautioned against this approach. While insisting that Douglas was right in rejecting any approach based on the old doctrine of substantive due process, Brennan counseled that the best approach would be to follow the Court’s earlier example “in creating a right of association . . . [from] the First Amendment to protect something not literally within its terminology of speech and assembly, because the interest protected is so closely related to speech and assembly.” As he saw it, such a tack was far better: “Instead of expanding the First Amendment right of association to include marriage, why not say that what has been done for the First Amendment can also be done for some of the other fundamental guarantees of the Bill of Rights?” Brennan’s goal was to see “a right to privacy created out of the Fourth Amendment and the self-incrimination clause of the Fifth, together with the Third, in much the same way as the right to associate has been created out of the First.” Such a ploy would allow the Court to “hurdle” the “obstacle” posed by the fact that “the association of husband and wife is not mentioned in the Bill of Rights” and thus “effect a reversal in this case.” William J. Brennan to William O. Douglas, April 24, 1965, Manuscript Division, Library of Congress. Emphasis supplied.
For a glimpse of the law office politics of the justices’ chambers as they wrestled with what to do about the opinions in Griswold, see David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 229–260.
58. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale University Press, 1921), 51.
In his dissent in Lawrence v. Texas, Justice Scalia insisted that “[s]tate laws against bigamy, same-sex marriage, ad
ult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” would be subject to invalidation since the Court had now overruled its earlier opinion in Bowers v. Hardwick that states have the right to pass laws “based on moral choices.” 156 L. Ed. 2d., 533.
59. 505 U.S. 833 (1992), 846.
60. Ibid., 848.
61. Ibid., 849.
62. Jacob E. Cooke, ed., The Federalist (Middletown, Conn.: Wesleyan University Press, 1961), No. 78, 525.
63. 505 U.S. 833, 868.
64. Ibid., 865.
65. 478 U.S. 186, 196.
66. Ibid., 192. Having accepted the line of substantive due process cases as precedent, Justice White tried to draw a line: “Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Ibid., 194.
67. Palko v. Connecticut, 302 U.S. 319, 324–325.
68. 156 L. Ed. 2d., 521.
69. Ibid., 523.
70. Ibid., 521.
71. Ibid.
72. 381 U.S. 479, 522.
73. Ibid., 521.
74. Ibid., 527.
75. Doe v. Bolton, 410 U.S. 179 (1973), 222.
76. 410 U.S. 113, 174.
77. 505 U.S. 833, 996.
78. Ibid., 1000.
79. Ibid., 996.
80. 156 L. Ed. 2d, 542.
81. Ibid.
82. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997), 22.
83. See Raoul Berger, “‘Original Intention’ in Historical Perspective,” George Washington Law Review 54 (1986): 296.
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