June 1, 2012
The right to refuse medical treatment.
The right to purchase and use birth control.
The right to custody of one’s own children and to raise them as one sees fit.
These are all fundamental rights protected by the U.S. Constitution, yet none are explicitly mentioned by the nation’s highest law.
Instead, these rights were established by the Supreme Court through several rulings over the past 90 years.
In establishing these rights, the Court invoked a legal theory known as “substantive due process” which operates through the due process clauses of the Fifth and Fourteenth Amendments to prohibit federal and state governments from impinging on civil liberties (some of which are listed above).
Considering that decisions like Roe v. Wade and Lawrence v. Texas relied primarily upon substantive due process, it’s no wonder that the theory is itself controversial among socially conservative groups.
But where did substantive due process even come from?
There are two Supreme Court decisions from the 1920s often cited as being the first instances of substantive due process being used to protect individual liberties: 1923’s Meyer v. Nebraska and 1925’s Pierce v. Society of Sisters.
Pierce, establishing the fundamental right of parents to “direct the upbringing and education of children under their control,” celebrates its 87th birthday today.
The case centered on a challenge to a 1922 Oregon law, the Compulsory Education Act.
The Compulsory Education Act required all Oregon children between eight and sixteen years of age to attend public school, with limited exceptions irrelevant here.
Two schools challenged the law: a Catholic school (Society of the Sisters of the Holy Names of Jesus and Mary) and a private military school (Hill Military Academy).
Though both challengers claimed that the law would result in an unconstitutional taking of property, Society of Sisters additionally claimed several other constitutional violations.
The most notable among these claims was that the law conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training.
Interestingly, the Court could have easily rested its entire rationale for overturning the Oregon law on the law’s “depriving” the schools of their “property, without due process of law,” in that the law effectively created a total embargo against private schools.
Instead, the Court found that, in addition to depriving the schools of their property, the law also impinged on the individual liberty of the parents to “direct the upbringing and education” of their children.
With this choice of reasoning in Pierce, along with the Meyer decision from two years earlier, the Court laid the groundwork for future Supreme Court decisions to recognize additional individual “liberties” that may not be deprived without “due process of law.”
Although the current Supreme Court has proven to be largely suspicious of substantive due process, it is nevertheless a widely accepted legal theory among jurists (aside, of course, from originalists like Justices Thomas and Scalia).
Because of this suspicion, there haven’t been any new individual “liberties” recognized by the Supreme Court in several decades.
However, if and when the Court’s ideological pendulum swings in the other direction, we can be sure that the principle of substantive due process will help the Court to recognized new “liberties” and expand existing ones.