SUBSTANTIVE DUE PROCESS

To say that governmental action violates "substantive due process" is to say that the action, while adhering to the forms of law, unjustifiably abridges the Constitution's fundamental constraints upon the content of what government may do to people in the name of "law." As the Supreme Court put the matter most succinctly in hurtado v. california (1884), "Law is something more than mere will exerted as an act of power.… [It] exclud[es], as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation … and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."

Substantive due process thus restricts government power, requiring coercive actions of the state to have public as opposed to merely private ends, defining certain means that government may not employ absent the most compelling necessity, and identifying certain aspects of behavior which it may not regulate without a clear showing that no less intrusive means could achieve government's legitimate public aims.

The phrase due process of law derives from King John's promise in magna carta to abide "by the law of the land," as translated four centuries later by Sir edward coke. But the belief that even the sovereign must follow a higher law can be traced further back still. Even before the Middle Ages, kings symbolically acknowledged their limitations when they accepted their crowns; royal coronations were religious rites in which the rulers supposedly received power directly from God. The medieval notion of a divine law that even the sovereign might not transgress lay at the heart of English common law and of the barons' demands at Runnymede. By the eighteenth century, the idea was phrased in terms of a natural law philosophy of social compact between sovereign and citizen. Although individuals were thought to surrender certain freedoms to the state, other rights were considered so much a part of personhood that they lay outside the scope of the social compact. Indeed, protection of such rights had to be the aim of any valid government; a state would abrogate its essential function were it to deny its citizens these fundamental freedoms.

The most famous articulation of that social compact philosophy in American history is the statement in the declaration of independence that "all men… are endowed by their Creator with certain unalienable Rights … among these are Life, Liberty and the Pursuit of Happiness … to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed." Although the Declaration of Independence does not, of course, use the words "due process," the notion that substantive limits may be implied from the character of our society and from our reasons for ceding coercive authority to the state underlies both that document and the system of law and politics structured by our Constitution. The Fifth and fourteenth amendments to the Constitution provide, respectively, that neither the federal government nor the states may deprive persons "of life, liberty, or property, without due process of law." The Supreme Court has long recognized that state action that follows fair procedures and thus satisfies procedural due process may nonetheless violate substantive due process by exceeding the limits of the proper sphere of government. In the name of substantive due process, the Supreme Court has accordingly struck down hundreds of statutes governing matters ranging from wages and hours to sexual conduct.

Some commentators have called "substantive due process" a contradiction in terms. But a dismissal on semantic grounds of the very notion of substantive due process is unwarranted. First, the very idea of "process" has often been taken to include concerns as to the nature of the body taking an action, and legislatures have at times been understood as structurally improper sources of particular kinds of public actions. Second, the Constitution guarantees "due process of law," and, as the passage quoted above from Hurtado suggests, the term "law" can itself be taken to imply various normative requirements. Third, even the purest "procedural" norms inevitably embody substantive choices. Finally, the choice of the constitutional phrase on which substantive review has been pinned is to a large degree accidental; the Fourteenth Amendment's "privileges or immunities" clause might have been a happier selection—but the real question is whether and how individual rights not explicitly guaranteed by the Constitution should be protected under that document taken as a whole, not whether courts have picked a felicitous phrase to describe that protective task.

The Constitution, however, does not specify the essential rights of personhood; the bill of rights lists only certain rights that particularly warranted articulation in 1791, and the ninth amendment makes clear that the list is not to be taken as exhaustive. It is on a largely open landscape that courts, including the Supreme Court, have had to mark out our fundamental freedoms. The process has necessarily been one of continual redefinition, responding to the changing—one hopes evolving—values and concerns of the Justices and the nation. Due process, as felix frankfurter noted, has a "blessed versatility."

Not until the adoption of the Fourteenth Amendment in 1868 did the Constitution explicitly require state deprivations of liberty or property to comply with "due process of law"; barron v. baltimore (1833) had interpreted the parallel Fifth Amendment bar to limit only the federal government. Well before 1868, however, both the Supreme Court and various state courts had begun to articulate inherent, judicially enforceable bounds on governmental interference with individual autonomy. Insofar as these limits were announced and enforced by federal judges, such holdings occurred in cases not involving specific provisions of the United States Constitution but falling within the diversity jurisdiction of federal courts because the opposing parties were citizens of different states. The liberties the courts protected were almost exclusively economic: the ability to contract as one wished and to do as one pleased with one's own property.

Thus, as early as 1798, Justice samuel chase wrote in calder v. bull that any law that "takes property from A. and gives it to B." is invalid as contrary to "general principles of law and reason," even if it is not "expressly restrained" by the Constitution. Justice Chase reasoned that such a law would usurp judicial authority if intended to correct an injustice A had done to B, and, if intended simply to improve matters, would not be "law" at all but would instead transgress limitations implied by the very notion of representative government: "the nature, and ends of legislative power will limit the exercise of it."

From time to time throughout the nineteenth century, the Supreme Court struck down state statutes it judged to exceed these inherent limits on legislative power. Typically, however, the Court left unclear whether the limits derived from the purpose and character of legislatures, as Justice Chase had argued; or from an ahistorical body of natural law; or from specific, if unnamed, provisions of the Constitution. In fletcher v. peck (1810), for example, the Supreme Court invalidated a Georgia statute that attempted to revoke state land grants. Writing for the Court, Chief Justice john marshall explained only that the statute was rendered invalid "either by general principles which are common to our free institutions, or by the particular provisions of the Constitution." Similarly, when the Supreme Court in terrett v. taylor (1815) struck down Virginia's attempt to divest the Episcopal Church of its property, it rested its holding on "principles of natural justice" and "fundamental laws of every free government," as well as on the "spirit and letter" of the Constitution.

Within a decade or so after the Civil War, however, the Supreme Court more clearly embraced a theory of implied limitations. When, in loan association v. topeka (1875), the Court invalidated a tax designed to finance a bonus for local industry, it did not mention the Constitution at all; exercising the common law power of a federal court sitting in a diversity case, the Court simply found the tax "purely in aid of private or personal objects" and hence "beyond the legislative power and … an unauthorized invasion of private right." Echoing Calder v. Bull, the Loan Association Court declared that there are "rights in every free government beyond the control of the state" and that limitations on sovereign power "grow out of the essential nature of free governments."

Ironically, it was a notion of intrinsic limits on proper government action, including judicial action—a notion similar to that underlying the Court's invalidation of state and local laws in Fletcher v. Peck, Terrett v. Taylor, and Loan Association v. Topeka—that initially constrained substantive review of state legislation under the Fourteenth Amendment. By prohibiting state laws that "abridge the privileges or immunities of citizens of the United States," the amendment's framers may have intended to provide federal protection against state encroachment of fundamental rights, but the Supreme Court in the slaughterhouse cases (1873) construed the clause narrowly to safeguard only rights peculiarly associated with national citizenship, such as the right to vote in national elections. In the Court's view, the clause did not protect the essential freedoms traditionally protected by the states themselves in intrastate disputes and protected by federal courts under Article IV, section 2, only from state laws unjustly discriminating against out-of-staters. Upholding the constitutionality of a state-granted monopoly on slaughterhouses around New Orleans, the Slaughterhouse Court held that the right to pursue one's trade was a right of state not national citizenship.

Writing for the Court in Slaughterhouse, Justice samuel f. miller—who two years later penned the majority opinion in Loan Association v. Topeka—made clear that the main motivation for the Slaughterhouse decision lay in the Court's fear that a more expansive interpretation of the Fourteenth Amendment would allow the federal government to exceed the proper bounds of its authority and to intrude on the regulatory domain of the states. Construing the amendment's privileges or immunities clause or its due process clause to protect all fundamental rights, Miller explained, "would constitute this Court a perpetual censor upon all legislation of the states" and, by virtue of the affirmative enforcement power granted Congress in section 5 of the Fourteenth Amendment, would allow Congress to "pass laws in advance, limiting and restricting the exercise of legislative power by the states in their most ordinary and useful functions." In contrast, the largely nonconstitutional review carried out in Fletcher, Terrett, and Loan was seen by the Court as guided and constrained by well-developed common law notions of the inherent limits of legitimate state action, gave no affirmative power to Congress, and fell within one of the federal government's clearly proper roles: adjudicating cases in which diversity of citizenship cast doubt on the impartiality of state tribunals.

But the doctrinal distinction between constitutional and common law review of the substantive legitimacy of state legislation was internally unstable: if natural law limitations on government could guide and constrain the Court in diversity-of-citizenship cases, they could do the same in cases brought pursuant to the Fourteenth Amendment. Moreover, the Court could apply common law principles to invalidate any congressional attempt under the guise of the Fourteenth Amendment to prohibit perfectly legitimate state activity.

Partly because of this doctrinal instability, and partly because of strong pressure from the organized bar for a more expansive review of state economic regulation, the Court moved rapidly in the years following Loan Association and Slaughterhouse toward substantive review of state legislation under the Fourteenth Amendment's due process clause. Throughout the last quarter of the nineteenth century, the Court often warned in obiter dicta that the due process clause prohibited states from transgressing common law limitations on legitimate governmental action. In particular, the Court gave notice that unreasonable state deprivations of property or of the freedom of contract would be struck down as unconstitutional. In allgeyer v. louisiana (1897) this line of dicta finally ripened into a landmark holding : the Court there invalidated a Louisiana restriction on insurance contracts as substantively incompatible with due process of law. By barring companies not licensed by the state from insuring Louisiana property, the Court held, Louisiana had exceeded its state police power and had unconstitutionally impaired the freedom of contract.

In the four decades following Allgeyer, the Supreme Court scrutinized socioeconomic legislation more aggressively and persistently than ever before or since, striking down scores of federal and state statutes as violative of substantive due process. The period from 1897 to 1937 has come to be known as "the Lochner era," after its most infamous product, lochner v. new york (1905). Lochner invalidated a New York law limiting the work week of bakery employees to sixty hours; the Court found the statute an unreasonable infringement of the freedom of contract. In dissent, Justice oliver wendell holmes protested that "[t]he fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics."

Throughout the Lochner era, the Court closely examined both the means and the ends of socioeconomic legislation. The Court required that the relationship between a statute and its legitimate objectives be "real and substantial," and it repeatedly invalidated laws that it deemed to burden individual economic liberty more than strictly necessary to accomplish the goals of such laws. Thus, the majority in Lochner reasoned that regulation of bakery work hours exceeded the proper bounds of the police power in part because the state could protect the health of bakery employees without infringing so fundamentally on contractual freedom. Similarly, adkins v. children ' s hospital (1923) struck down minimum wage laws for women partly because the Court deemed narrower wage regulations sufficient to achieve the legislature's legitimate ends, and Liggett Co. v. Baldridge (1928), which invalidated Pennsylvania restrictions on corporate ownership of pharmacies, noted less objectionable regulatory means the state could employ to protect the same interests in public health.

In addition to demanding a tight fit between ends and means, the Lochner Court required that the statutory ends themselves fit its sense of the proper aims of lawmaking. Informed by earlier doctrines of implied limitations, as well as by the popular notions of social Darwinism and the writings of conservative legal commentators on the constitution such as thomas m. cooley and christopher g. tiedeman, the Court viewed protection of individual common law rights and advancement of the general health, safety, and moral welfare to be the only valid objectives of government regulation. Laws aimed at redistributing economic and social power—giving A's property to B—by their very nature fell outside the realm of legitimate legislative action. Thus, for example, in Adair v. United States (1908) and coppage v. kansas (1915), the Court invalidated prohibitions against yellow dog contracts that conditioned employment on workers' promises not to join unions. Writing for the majority in Coppage, Justice mahlon pitney rejected the argument that inequality of bargaining power could justify infringing contractual liberty: it is "impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights."

Although the Court in the Lochner era struck down close to 200 statutes under the due process clauses, it upheld even more. Many of the laws sustained were distinguished from invalidated statutes only by subtle factual differences supporting findings that they served the Court's narrow vision of the general welfare. After repeatedly striking down price controls, for example, the Court in nebbia v. new york (1934) upheld regulation of milk prices, concluding that the regulation was plausibly connected to public health on the theory that price competition encouraged suppliers to cut corners on sanitation. Other statutes, however, were sustained for a more specific reason: the Court exempted from its general liberty-of contract approach statutes designed to protect especially disadvantaged or vulnerable groups. Thus, in holden v. hardy (1897), the Court upheld restrictions on the hours worked by coal miners; the Court stressed the ultrahazardous nature of coal mining and the ability of coal companies in company-run towns virtually to dictate the terms of employment. Similarly, the Court in muller v. oregon (1908), moved in part by the supposed physical vulnerability of women and by sexist notions of their maternal mission, permitted Oregon to limit women's hours of work outside the home.

Just as prior doctrinal instabilities had helped to usher in the Lochner era, so these exceptions to the regime of laissez-faire presaged the era's close. By acknowledging that a state could protect at least some groups at the expense of others, Holden and Muller made available in every substantive due process case the argument that the legislature might reasonably have determined that the class protected by the challenged statute was unable to, or should not be forced to, fend for itself. Indeed, Lochner v. New York was itself drastically limited sub silentio in 1917, when the Court in bunting v. oregon (1917) relied on Muller in upholding a state law limiting to ten hours the work day of manufacturing employees.

With the onset of the Depression, moreover, it became progressively more difficult to view the relative wealth of A and B as a matter of purely private concern, outside the domain of proper governmental authority. Increasingly, economic transactions were seen as interrelated, and the general welfare was understood as intimately linked to the welfare of disadvantaged groups. The Supreme Court's persistent invalidation of redistributive legislation was sharply criticized by labor unions, the liberal press, and new deal politicians, all of whom argued that extensive economic regulation, both state and federal, was necessary to alleviate the Depression. The perceived legitimacy of such regulation was further bolstered by the work of "realist" legal scholars such as morris r. cohen and Robert Hale, who portrayed distributions of private wealth and power as the results of public choices expressed, for example, in the law of property and contract.

After much outcry, the Supreme Court parted dramatically with Lochner in west coast hotel v. parrish (1937), which abandoned earlier precedent and upheld a statutory minimum wage for women as reasonable in light of women's vulnerability to economic exploitation and the public interest in minimizing the number of workers requiring government relief. In the years that followed, the Court confirmed its abandonment of Lochner by repeatedly rejecting challenges to expansive New Deal regulation of private economic arrangements, and in 1949 the Court unanimously and explicitly rejected the "Allgeyer Lochner-Adair-Coppage constitutional doctrine."

Never, however, did the Supreme Court explicitly abandon Lochner 's substantive theory of what constitutes legitimate legislation; it remains the official dogma to this day that regulatory power may not be exercised solely to transfer property from one private party to another. Instead, the Court relaxed the standard of review it applied to socioeconomic regulation: the close scrutiny of the Lochner era was replaced with extreme deference to legislative determinations. Thus, in united states v. carolene products co. (1938) the Court promised to uphold socioeconomic legislation if any known or reasonably inferable state of facts supported the legislature's judgment.

In the intervening decades, this extreme deference has become virtually complete judicial abdication. Although substantive scrutiny has occasionally been smuggled in through the privileges or immunities clause of Article IV or the contract clause, in due process review the Court has required of economic regulation only "minimum rationality" and has shown itself willing to uphold laws on the basis of purely hypothetical facts or objectives, or on blind trust in legislative rationality. Justice william h. rehnquist carried the Court's approach to its logical extreme in his opinion for the majority in Railroad Retirement Board v. Fritz (1980). Rejecting a due process challenge to legislation that phased out the eligibility of long-retired railroad employees to receive both social security and railroad retirement benefits, but preserved the similar eligibility of more recently retired employees of equally long (or longer) tenure, the majority reasoned that the statute was clearly a rational way to accomplish its precise result: cutting off the dual benefits of the very employees adversely affected by the law. "The plain language" of the statute, Justice Rehnquist wrote, "marks the beginning and end of our inquiry."

The Supreme Court has not been entirely without textual guidance in its post-1937 effort to define the fundamental freedoms protected by the Fourteenth Amendment's due process clause. Although the Bill of Rights formally applies only to the federal government, the Court has relied heavily on the first eight amendments in determining which rights—both procedural and substantive—are so essential that governmental action abrogating them violates due process of law. Most of the guarantees in the Bill of Rights have now been "selectively incorporated" into the Fourteenth Amendment, although the Court has decisively repudiated the view, espoused by Justice hugo l. black, that the Fourteenth Amendment applies the Bill of Rights to the states in toto.

At the close of the Lochner era, the Justices laid down a fairly restrictive rule for determining which provisions of the Bill of Rights were "incorporated." Writing for the Court in palko v. connecticut (1937), Justice benjamin n. cardozo limited incorporation to those rights "implicit in the concept of ordered liberty." Eventually recognizing the irrelevance of an inquiry into whether "a civilized system could be imagined that would not accord the particular protection," the Court in the late 1960s adopted a more contextual approach, asking whether a particular right was essential to the American political order. Thus, in duncan v. louisiana (1968) the Court held that criminal trial safeguards provided by the Bill of Rights are absorbed by the Fourteenth Amendment if they are "fundamental in the context of the criminal processes maintained by the American states." Over time, Duncan has come to stand for the more general proposition that guarantees in the Bill of Rights should be incorporated—and guarantees not expressly mentioned should be added—if they are necessary to protect values basic to our society. (See incorporation doctrine.)

Although substantive due process protection of implied rights to contractual liberty virtually vanished with the close of the Lochner era, judicial solicitude has grown in the ensuing years for a different set of liberties not expressly protected by the Constitution—a diverse group of claims to personal autonomy that have been collectively labeled the right of privacy. In contrast to the narrow contractual liberty to which the Lochner Court devoted the bulk of its concern, the right of privacy has come to embrace a wide array of freedoms, including rights of association and reproduction as well as of seclusion and intellectual independence. Some of these freedoms have been derived by extrapolation (or, perhaps, excavation) from the Bill of Rights or other clauses of the Fifth and Fourteenth Amendments. Yet the stirring rhetoric that has typically accompanied the elaboration of these personal freedoms testifies to a judicial perception that they are in some way more fundamental than the textual provisions to which they are pegged.

The Supreme Court made clear the essential nature of these "privacy" or "personhood" rights when it gave them their earliest articulation during the Lochner era itself. Striking down a state law that forbade the teaching of foreign languages before the eighth grade, the Court in meyer v. nebraska (1923) stressed the importance of allowing teachers to pursue their calling and parents to raise their children as they saw fit. Justice james c. mcreynolds's majority opinion gave broad scope to the liberty protected by the due process clauses: "Without doubt, [it] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Two years later, in pierce v. society of sisters (1925), the Court marshaled similar rhetoric in invalidating a state requirement that all students attend public schools. Still more sweeping—and perhaps of more lasting influence—was Justice louis d. brandeis's formulation in his dissent in olmstead v. united states (1928): "The makers of our Constitution … sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

Despite the broad language of these early opinions, Meyer and Pierce evinced special judicial solicitude primarily for family autonomy—freedom from government intrusion into the traditionally intimate realms of marriage, reproduction, and child-rearing. That emphasis, along with recognition of personal autonomy rights as fundamental, was furthered by the watershed case of skinner v. oklahoma (1942), the Supreme Court's first important privacy decision following the demise of Lochner. Invalidating a state statute providing for the sterilization of persons convicted two or more times of "felonies involving moral turpitude," the Court termed the right to reproduce "one of the basic civil rights of man." Part of the Court's concern stemmed from fear of the invidious and possibly genocidal ways in which government control over reproduction might be exercised: the Court observed that the "power to sterilize, … [i]n evil or reckless hands … can cause races or types which are inimical to the dominant group to wither and disappear."

The right to reproductive autonomy recognized in Skinner has since been elaborated and considerably expanded. As recently as 1978, the Court in zablocki v. redhail "reaffirm[ed] the fundamental character of the right to marry," holding that a state may not forbid marriage of parents unable to meet their child support obligations. More controversial has been the extension of Skinner to birth control practices. In griswold v. connecticut (1965) the Supreme Court ruled that a married couple's decision to purchase and use contraceptives is a private matter beyond the proper reach of government authority. Perhaps not surprisingly, Justice william o. douglas's majority opinion focused on the intimacy of marital choices, invoking "a right of privacy older than the Bill of Rights" and defending the "sacred precincts of marital bedrooms." The freedom to practice contraception was not freed of its familial trappings until 1972, when Justice william j. brennan wrote for the Court in eisenstadt v. baird that, if "the right of privacy means anything, it is the right of the individual, married or unmarried, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child." That Baird singled out as decisive in Griswold the element of reproductive autonomy was made clear by carey v. population services international (1977), which invalidated a state statute allowing contraceptives to be sold only by licensed pharmacists and only to persons over sixteen.

When the Court assessed the constitutionality of abortion laws in roe v. wade (1973), its commitment to reproductive autonomy collided with an equally basic concern for the sanctity of human life. Writing for the majority, Justice harry l. blackmun reasoned that the liberty protected by the due process clauses includes a woman's fundamental right to decide, with her physician, whether to end or to continue a pregnancy, but that certain state interests are sufficiently compelling to override that right. During the final trimester of pregnancy, the state's interest in preserving the fetus, by then viable, justifies a ban on abortions; before the third trimester, however, abortions may not be prohibited and may be regulated only as necessary to protect the woman's health; and, before the second trimester, the state may require only that abortions be performed by licensed physicians.

As an element of substantive due process, the right to privacy has received its doctrinally purest exposition in reproductive autonomy cases. Equally important rights to personal autonomy, however, have been found in the "penumbras" of constitutional provisions less abstract than the requirement of "due process of law," most notably the first amendment. In West Virginia State Board of Education v. Barnette (1943) the Court construed the First Amendment, along with the Fifth and the Fourteenth, to establish for each individual a sphere of intellectual and spiritual independence. Striking down a compulsory flag salute in public schools, Justice robert h. jackson wrote for the Court that, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The Court appealed to the same notion when it held, in Wooley v. Maynard (1977), that New Hampshire could not punish a person for obscuring the words "Live Free or Die" on his license plate because he found it religiously or philosophically repugnant to display the state's slogan on his car. The Court reasoned that the state had impermissibly invaded the private "sphere of intellect and spirit" by requiring individuals "to use their private property as a "mobile billboard' for the State's ideological message."

In naacp v. alabama (1958) and Talley v. California (1960) the Court found in the First Amendment guarantees of associational and expressive freedom correlative rights to anonymity. And in moore v. city of east cleveland (1977) the Court protected a special right to familial association by invalidating a single-family zoning ordinance that prevented a woman from living with her son and two grandsons. Renewing its special commitment to traditional visions of family autonomy, the Court distinguished the zoning law upheld in Village of Belle Terre v. Boraas (1974) on the basis that "the ordinance there affected only unrelated individuals," whereas East Cleveland had "chosen to regulate the occupancy of its housing by slicing deeply into the family itself."

Other penumbral rights to personal autonomy have been found in the intersection of several textual provisions, or in the constitutional system taken as a whole. In shapiro v. thompson (1969), for example, the Court alluded to the commerce clause, the privileges or immunities clause of the Fourteenth Amendment, and the similar language in Article IV, section 2, as well as to the Fifth Amendment's due process clause and "the nature of our Federal Union" in finding that "our constitutional concepts of personal liberty" imposed a general requirement that "all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." The newly vitalized right to travel had earlier been recognized in the context of international mobility, at least when other First Amendment rights were also at stake: the Court in aptheker v. secretary of state (1964) had struck down a congressional denial of passports to members of the Communist party. In haig v. agee (1981) the Court sustained revocation of the passport of a former intelligence agent who was engaged in exposing undercover agents stationed abroad. In Haig the Court distinguished sharply between the "right" of inter state travel and the "freedom" of inter national travel, refusing to extend to congressional regulation of the latter the close scrutiny it had given state regulation of the former.

The Supreme Court attempted to unify some of these disparate doctrinal threads in whalen v. roe (1976), its most comprehensive treatment thus far of the right of privacy. Writing for a unanimous Court, Justice john paul stevens upheld a carefully crafted state scheme for maintaining computerized records of prescriptions for certain dangerous drugs, but only after examining the statute's implications for what he described as the two components of the right to privacy: an interest in confidentiality—"avoiding disclosure of personal matters"—and an interest in free choice—"independence in making certain kinds of important decisions."

Despite this seemingly broad formulation, the Court has resisted the creation of a generic right to choose how one lives. In Kelley v. Johnson (1976), for example, the Court upheld police department rules regulating officers' hair styles and prohibiting them from having beards. Writing for the majority, Justice Rehnquist argued that the rules did not violate the right of privacy recognized in Roe, Baird, and Griswold; he distinguished those cases as involving "substantial claims of infringement on the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life." Nor is the Court apparently prepared to protect even all intimate decisions central to one's self-definition; the Justices have, for example, passed up several opportunities to review statutes punishing or burdening private homosexual activity between consenting adults. (See freedom of intimate association.)

Some lower courts have been more willing to expand the protected sphere of personal autonomy, recognizing broad rights of lifestyle choice as well as, in some cases, freedom to decide how and when one will die. The Supreme Court, however, appears unlikely to follow very quickly. Not only are some Justices concerned about the open-ended and potentially radical nature of such decisions, but the Court has repeatedly dropped unsubtle hints that there are fairly sharp limits to its tolerance. The "blessed versatility" of substantive due process is limited by the Justices' awareness that the Supreme Court is an institution of government.

Laurence H. Tribe
(1986)

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