Civil Liberties II Part I: The life and death of substantive due process Paul E. Peterson

Procedural Due Process  Before you can be deprived of life, liberty, and property, the government must follow certain procedures Substantive Due Process  There are certain things the government simply cannot do, no matter what procedures it follows

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Ninth Amendment  Most difficult amendment to interpret – says nothing specific  Suggests there are some rights that the people retain that the government cannot interfere with

Lochner v. New York (1905)  Decision: NY state law limiting bakers’ working hours is unconstitutional  One has the unalienable right to work as many hours a week as one likes. This is a substantive right Bakers at work

Lochner reasoning “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways… A Constitution is not intended to embody a particular economic theory… It is made for people of fundamentally differing views.” – Justice Holmes, dissenting opinion

Substantive due process  Holmes’s position becomes the dominant one after FDR is elected in the 1930s (New Deal philosophy)  Substantive due process – first enunciated in Lochner – dies a death in the 1930s

Civil Liberties II Part II: Resurrection of substantive due process Paul E. Peterson

Griswold v. Connecticut (1965)  Married couple in CT used contraceptives, violating a CT statute  Supreme Court: statute is unconstitutional; invoked the right of privacy “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” – Justice William Douglas

“I get nowhere in this case by talking about a constitutional right of privacy not specifically mentioned in the Constitution itself.” – Justice Hugo Black

“In Griswold v. Connecticut, the Court held a Connecticut birth control law unconstitutional. The Griswold decision can be rationally understood only as holding that the Connecticut statute substantively invaded the liberty that is protected by the Due Process Clause of the 14th Amendment. Several decisions of this court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause…That right reasonably include the right of a woman to decide whether or not to terminate her pregnancy.” – Justice Potter Stewart for the majority

“While the courts opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, the result it reaches is more closely attuned to the majority opinion… in that case. The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the state may impose in each one partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th Amendment. The states have had restrictions on abortion for at least a century.” – Justice William Rehnquist

 Roe identified right of privacy, and substantive due process as something protected by the 14 th amendment due process clause  In 1992, abortion comes up again – Planned Parenthood v. Casey  Conservative majority on the Court thought likely to overturn Roe Aftermath of Roe v. Wade

Public opinion on abortion has been remarkably stable since Roe v. Wade

“Where…the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe…the promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” – Justice Sandra Day O’Connor Sandra Day O’Connor invokes stare decisis

Bowers v. Hardwick (1986)  Bowers hauled off to jail for being in bed with a man  Plain meaning/original intent perspective: sodomy laws have been on the books forever  Court rules that states can forbid homosexual behavior

Public opinion on gay rights

Lawrence v. Texas (2003) “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.” – Justice Anthony Kennedy

1.Rights of the accused – broadened under Warren Court, narrowed subsequently when public opinion became more conservative 2.Free speech – Supreme Court changed its mind when the public grew outraged at McCarthyism, the Vietnam War, and Watergate 1.Roe v. Wade – never been modified, because public opinion is behind it 1.Gay rights – as the public begins to support it, Supreme Court changes its mind The Supreme Court follows public opinion

Next Lecture: Civil Rights I Racial Groups