![]() ![]() Article VI of the Constitution identifies “this Constitution” as the “supreme Law of the Land.” Forget penumbras and emanations-due process of law guarantees, at the very least, a judicial process in which those who stand to be deprived of life, liberty, or property can contend that the law sought to be applied to them is unconstitutional. It is also uncontroversial that “due process of law” and “law of the land” were synonymous during the Founding era. According to this view, both Griswold and Lochner -and Roe, Lawrence, and Obergefell-were all wrongly decided.Īre the critics of substantive due process right? It is uncontroversial that the concept of “due process of law” can be traced back to Chapter 39 of Magna Carta-the so-called “law of the land” clause. Thus, he wrote that because the legislation at issue in Griswold did not “threaten any guaranteed freedom,” it should have been upheld. ![]() ![]() Conservative originalist icon Robert Bork urged that burdens on unenumerated rights should not trigger any judicial review at all. Yet conservative originalists have criticized Griswold and subsequent decisions identifying unenumerated “fundamental” rights on similar grounds. States could deprive people of textually unenumerated rights for any reason or no reason at all.īlack was no conservative, and he joined a number of decisions that-whatever might be said on their behalf-cannot said to follow in a straightforward way from the Constitution’s text. ![]() That “natural law due process philosophy” held that the individual rights protected by the Constitution could never be comprehensively listed, being as numerous as the peaceful activities that individuals can think to pursue, and that legislative power was therefore inherently limited-mere legislative will was insufficient to justify “meddlesome interferences with the rights of the individual.” On Black’s understanding of the relevant text and history, the Fourteenth Amendment was designed to protect the rights specifically listed in Bill of Rights against the states-and nothing more. New York,” a 1905 decision in which the Court struck down a state law that limited the number of hours bakers could work in a day or a week on the grounds that it deprived them of “liberty of contract as well as of person” and violated the Fourteenth Amendment’s Due Process of Law Clause. In a vigorous and influential dissent from the Court’s holding in Griswold, Justice Hugo Black claimed that that holding could only be defended on the basis of “the same natural law due process philosophy found in Lochner v. But for all that, the answer to Blumenthal’s question to Gorsuch is a resounding “yes.” As I have discussed elsewhere, Douglas was desperately seeking to protect individual liberty that he valued-namely, sexual liberty-without breathing life into a doctrine that could be used to protect liberty which he did not value-namely, economic liberty. To borrow a memorable phrase from Justice Potter Stewart, Douglas’s majority opinion was indeed an “uncommonly silly” piece of writing. Griswold is now associated with the doctrine of “substantive due process,” which holds that the Constitution’s guarantees of “due process of law” affirm the existence of inherent limits on legislative power. Conservative critics of the Court have long invoked “penumbras” and “emanations” to heap scorn upon the notion that the Constitution protects any rights that are not expressly listed in the Constitution’s text.Īlthough Senator Richard Blumenthal questioned Gorsuch about whether he thought the Court reached the “right result” in Griswold, Gorsuch declined to expressly say so, averring that it would be “an act of hubris” for him to state “whether agree or disagree with any particular precedent.” Yet it is still worth thinking about what Blumenthal referred to as the “constitutional underpinning” of Griswold, which have informed a line of cases stretching from Roe v. Douglas’s majority opinion, which speaks of “penumbras, formed by emanations” from non-textual “guarantees that help give life and substance” has been ridiculed ever since it was issued. Connecticut, the Court held unconstitutional a Connecticut statute that prohibited the use of contraceptives, affirming a “right of privacy” that appears nowhere in the Constitution’s text. It is one of the Supreme Court’s most consequential and controversial decisions, and no one should have been surprised that now-Justice Neil Gorsuch was asked about it during his confirmation hearings. ![]()
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