FUNDAMENTAL-RIGHTS JURISPRUDENCE & THE NEW DEAL
At the end of the 19th century, as the so‐called “Progressive” movement grew, legislation was passed at the state level regulating and restricting economic activity. At the same time, morals legislation became much more pervasive, though often falling under the rubric of “public health” — what historian Ronald Hamowy has called the “medicalization of sin.” All this was part of an intellectual and political movement to improve upon the result of personal and economic choices by aggressively using government power to improve the general welfare.
Around the turn of the 20th century, the Supreme Court sporadically resisted this movement, striking down some (but far from all) laws restricting economic activities, and also state laws that, for example, prohibited private Catholic schools. The Court was sharply criticized by Progressives at the time for being “activist” and political, though even some constitutional historians on the left today, such as Howard Gillman, acknowledge the continuity between the principles of the Founding and what the Progressive‐era Supreme Court was trying to do in circumscribing state power.
With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.) Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous “Footnote Four” was satisfied. Heightened scrutiny would be given to a statute that (a) “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” (b) interfered with the political process, or (c) messed with a discrete and insular minority. This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press. (The fact that the right to bear arms — explicitly mentioned in the Second Amendment — has not been judicially protected, shows the ideological nature of this maneuver.) Ironically, no one has been more stalwart in allegiance to the Roosevelt‐New Deal judicial philosophy of Footnote Four than today’s judicial conservatives, such as Robert Bork.
ENTER THE “RIGHT OF PRIVACY”
In Griswold v. Connecticut (the 1965 contraceptives case), the Court struck down as unconstitutional a state ban on the sale and use of contraceptives. Writing for the Court, Justice Douglas (a Roosevelt appointee) held that the law violated what he called the “right of privacy” that he said could be discerned in the “emanations” and “penumbras” of the enumerated rights, such as the right to be free from unreasonable searches. Douglas was obviously struggling to stay within the first exception to the presumption of constitutionality specified in Footnote Four — in which only rights enumerated in the Constitution would merit protection — and to avoid opening up other forms of liberty to judicial scrutiny.
Had Douglas grounded the decision in “liberty” (which is mentioned in the text) rather than “privacy” (which is not), he would have risked undoing the strong deference to Congress and state legislatures that he and his fellow‐New Deal justices had previously established. On the other hand, by narrowly construing the unenumerated right being protected, Douglas ensured that abortion and procreative rights were viewed as special‐interest rights. Had they rested on a general right to liberty, rather than on the more narrow right to privacy, they would more likely have received broader support from those who wanted to see their favored liberties protected as well.
ENTER “FUNDAMENTAL RIGHTS” V. “LIBERTY INTERESTS”
Emanations and penumbras could not conceal, however, that the protection of an unenumerated right of privacy was outside the framework of Footnote Four. The beauty of the Footnote Four solution is that it limited judicial review to enumerated rights, while allowing government free rein in the economic sphere. The problem created by the unenumerated right of privacy is that it now required the Court to distinguish unenumerated liberties (deemed by the court to be “fundamental rights” that rebut the presumption of constitutionality) from mere “liberty interests” (that do not). Eventually, the Court settled on limiting fundamental rights to those that could be grounded in our “history and traditions” or “implicit in the concept of ordered liberty.”
The more specifically you define the liberty at issue, however, the more difficult a burden this is to meet — and the more easily the rights claim can be ridiculed. “Liberty” is obviously deeply rooted in our history and traditions. A right to use contraceptives is not. Nor is almost any particular exercise of liberty, especially if it was a practice unknown at the Founding. Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: “Just where in the Constitution does it say that?” even though the Ninth Amendment specifies that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
KENNEDY’S SWITCH FROM PRIVACY TO LIBERTY
In Planned Parenthood v. Casey (1992), Justice Kennedy began to escape from this New Deal‐era box in the part of the coauthored opinion commonly attributed to him. (Justice Souter is credited with the discussion of stare decisis — properly ridiculed by Justice Scalia in his Lawrence dissent — and Justice O’Connor with the discussion of “undue burden,” her hallmark.) In his part of the joint opinion, Justice Kennedy refused to rest abortion rights on a “right to privacy,” though this crucial move has been generally ignored. Instead he rested it on liberty, and explicitly on the Ninth Amendment: