Amdt14.S1.6.3.2 Historical Background on Noneconomic Substantive Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

One of the earliest formulations of noneconomic substantive due process was the right to privacy. In an 1890 Harvard Law Review article, Samuel Warren and Louis Brandeis first proposed this right as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws of nuisance, libel, search and seizure, and copyright.1 According to the authors,

This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.2

The concepts advanced in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a 1928 dissenting opinion by Louis Brandeis, by then a Supreme Court Justice, regarding the Fourth Amendment.3 In the same decade, during the heyday of economic substantive due process, the Court also ruled in two cases that, although characterized in part as involving the protection of property, foreshadowed the rise of the protection of noneconomic interests.

In Meyer v. Nebraska, the Court struck down a state law that prohibited schools from teaching any language other than English to grade school children.4 Two years later, in Pierce v. Society of Sisters, the Court declared it unconstitutional to require public school education of children aged eight to sixteen.5 The Court characterized the rights at issue in each case as certain economic rights.6 In Meyer, the Court found that the statute at issue interfered in part with the property interest of the plaintiff, a German teacher, in pursuing his occupation.7 In Pierce, the Court found that the public school requirement threatened the private school plaintiffs with destruction of their businesses and the values of their properties.8 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents in the assertion of other noneconomic forms of “liberty” protected by the Due Process Clause. In particular, in Meyer, the Court also recognized “the power of parents to control the education of their own” as a protected liberty interest.9 Relying on this part of Meyer, the Court in Pierce also held that the public school requirement “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” 10

Although the Supreme Court after Pierce continued to describe noneconomic liberty broadly in dicta,11 the doctrine had little practical impact in the ensuing decades.12 In 1965, however, the Court in Griswold v. Connecticut held that a state law banning the use of contraceptives violated the right of marital privacy, but concluded that the right stemmed not from the Due Process Clause, but from the “penumbras” of several amendments of the Bill of Rights.13 In Roe v. Wade, the Court, while leaving open the possibility this privacy right may be rooted in the Ninth Amendment’s reservation of rights to the people, characterized the right as one “founded in the Fourteenth Amendment’s concept of personal liberty.” 14 From then on, the Court has generally recognized this protected privacy interest as stemming in large part from the Due Process Clause and encompassing, for instance, the right of same-sex couples to engage in adult consensual intimate activities,15 and for nearly five decades, the right to abortion.16

Samuel Warren & Louis Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193, 193–207 (1890). back
Id. back
See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis expressed the view that the Framers “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” Id. Accordingly, Justice Brandeis reasoned that the Framers “conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Id. Thus, he continued, “[t]o protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Id. back
262 U.S. 390, 400–01 (1923). back
268 U.S. 510, 534–35 (1925). back
See Meyer, 262 U.S. at 400. back
See id. at 401. back
See Pierce, 268 U.S. 531, 533–34. The Court has subsequently made clear that these cases dealt with a complete prohibition of the right to engage in a calling, holding that a brief interruption did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (holding that search warrant served on attorney that prevented attorney from assisting client appearing before a grand jury did not violate the attorney’s Fourteenth Amendment right to practice one’s calling). back
See Meyer, 262 U.S. at 401. back
See Pierce, 268 U.S. at 534–35. Some Justices have expressed the view that Meyer and Pierce are more appropriately resolved on First Amendment grounds. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Douglas, J., concurring). In both Epperson v. Arkansas, 393 U.S. 97, 105 (1968), concerning a state law that prohibited the teaching of evolution, and Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506–07 (1969), concerning a school policy prohibiting the wearing of armbands, the Court approvingly noted the due process basis of Meyer and Pierce but decided both cases on First Amendment grounds. back
See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (describing marriage and procreation are among “the basic civil rights of man” ); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (stating that care and nurture of children by the family are within “the private realm of family life which the state cannot enter” ). back
See, e.g., Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of mental illness or intellectual disability); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities). back
Griswold v. Connecticut, 381 U.S. 479, 481–84 (1965). back
Roe v. Wade, 410 U.S. 113, 152–53 (1973). back
See, e.g., Lawrence v. Texas, 539 U.S. 558, 564–65 578–79 (2003). back
For a more detailed discussion of the evolution of the Court’s analysis of the right to abortion, see Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine to Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine. back