Domestic)Law)
Fundamental Rights: Should Personal Liberties Gain Preferential
Treatment over Economic Liberties in the Eyes of the Supreme Court?
Charlotte Rose Young
Knox College
Abstract: This paper takes an in-depth look at the Supreme Court’s treatment of the
non-enumerated right to privacy in comparison to the enumerated economic liberties.
By examining what a fundamental right consists of and how these fundamental rights
were incorporated for the direct benefit of the people, this paper analyzes how the rule
of fundamental laws have affecting the application of the non-enumerated right of
privacy. Additionally, the lack of Supreme Court adherence to strict scrutiny
requirement of a fundamental right with economic liberties proves that the Court
grants preferential treatment for non-enumerated personal liberties over the actual
fundamentally enumerated economic liberties.
Introduction
Many people believe that the Bill of Rights was originally applicable to the
citizens of the states—this is not the case. The purpose of the Bill of Rights was to
protect the states from the power of a strong national government; however, over time,
these rights were gradually incorporated via the Fourteenth Amendment’s Due Process
Clause. Through differing methods of incorporation, the Supreme Court ruled that
certain rights included in the Bill of Rights were to be granted to the citizens of the
States without any infringement by federal and state governments. The rights that were
incorporated into the states from the Bill of Rights were deemed necessary by Supreme
Court cases because they were found to be rights that protected fundamental liberties.
Although each fundamental right holds significant power, the Supreme Court has
historically given more preference and attention to fundamental rights dealing with
personal privacy liberties as opposed to fundamental rights dealing with economic
liberties.
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Due Process
There is a hierarchy of Constitutional liberties and rights within the Bill of
Rights.1 At the top are the fundamental rights: these rights “enjoy more dignity than
others, that some have a higher rank than others and deserve a greater degree of
vigilance and protection than others.”2 The roots of these fundamental rights are not
only found in previous Supreme Court opinions, but also in many other documents—the
Magna Carta, the Constitution, and English Common Law—that help illuminate the
legal history of the United States. Through the review of these documents, the Supreme
Court Justices are able to determine whether a right has strong ties to the history and
traditions of America. Fundamental rights are incorporated to the states through the
due process clause of the Fourteenth Amendment: “…nor shall any State deprive any
person of life, liberty or property, without due process of the law…”3 The Justices first
look for guidelines to the definition of procedural due process within the Fourteenth
Amendment when deciding if the right is fundamental; additionally, the Due Process
Clause also ensures that the state respects all the proper legal procedures/rights that are
awarded to a person. Justice Curtis sought to define “due process of the law” because the
Constitution “…contains no description of those processes which it was intended to
allow or forbid. It does not even declare what principles are to be applied to ascertain
whether it [should] be due process.”4 Because there are no guidelines for due process,
the Constitution leaves unanswered the question of how the Supreme Court should
determine what constitutes due process. In the case Murray’s Lessee v. Hoboken Land
& Improvement Company,5 Justice Curtis laid out a framework to answer this question:
“…the process (to defining due process) must be twofold. We must examine the
Constitution itself to see if the process is in conflict with any other provisions…We must
look to those settled usages any modes of proceeding existing in the common and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
Justice Felix Frankfurter felt that all rights in the Constitution should be “equally respected…and the function of
the Court does not differ in passing on the constitutionality of legislation challenged under different Amendments.”
His view was in contrast to the view of the Court when later a hierarchy of rights was established. Konvitz, Milton
R. Fundamental Rights: History of a Constitutional Doctrine. New Brunswick, New Jersey: Transaction Publishers,
2001. (pg1,2)
2
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 2)
3
Sullivan & Gunther, Constitutional Law, 17th ed., s.v. 2010 (pg 364)
4
Sullivan & Gunther, Constitutional Law 2010 (page 363)
5
Murray’s Lessee v. Hoboken Land & Improvement Company 59 U.S. 272 (1856).
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statute law of England.”6 Using the same process that Justice Curtis described, the
Supreme Court Justices take the right in question and look back to the Constitution, the
Magna Carta, and some English Common Law in order to determine if the right is
“deeply rooted in United States history and traditions.”7 If after review the right is found
to meet these qualifications, then it is fundamental; at this point neither the federal nor
the state governments are permitted to intervene.
Fundamental Rights
For the first time in 1931 the Supreme Court held a state statute unconstitutional
because it violated the First Amendment freedom of speech in the case Stromberg v.
California; 8 however, the Supreme Court did not create a formulated doctrine of
fundamental rights until 1937.9 This doctrine allowed rights and liberties from the Bill of
Rights to be tested and then accepted or rejected as fundamental rights. Under the
doctrine, once a right is accepted as fundamental and incorporated to the states, the
right is “enforced as a Constitutional guarantee against the states.”10 This doctrine
solidifies the fundamental rights hierarchical position among the other rights.
It was not always clear that the Bill of Rights contained fundamental rights.
Originally, there was no establishment of a hierarchy of rights and liberties. Before the
official incorporation of the first fundamental rights, Justice Harlan delivered several
dissenting opinions in both 1884 and 1908 in which he claimed that “…procedural
guarantees provided in the Bill of Rights as applicable to crimes against Federal law
should be equally applicable to crimes against State law, under the Due Process Clause
of the Fourteenth Amendment.”11 Justice Harlan’s dissents helped pave the way for the
Supreme Court’s incorporation of a fundamental right in 1925 with the case Gitlow v.
New York.12 In this decision, the Supreme Court stated that the “freedoms of speech and
press are among the fundamental personal rights and liberties protected by the Due
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
6
Sullivan & Gunther, Constitutional Law 2010 (pg 364)
He does this by stating “The words, ‘due process of the law,’ were undoubtedly intended to convey the same
meaning of the words ‘by the law of the land’ in the Magna Charta. Ibid.(pg 363)
8
Stromberg v. California, 283 U.S. 359(1931).
9
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 12)
10
Ibid. (pg 13)
11
Ibid. (pg 12)
12
Gitlow v. New York, 260 U.S. 652 (1925). Found in Konvitz, Milton R. Fundamental Rights: History of a
Constitutional Doctrine. (pg 12)
7
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Process Clause of the Fourteenth Amendment,”13 and it was with these comments that
the ideas supporting incorporation of fundamental rights began.
Incorporation
Incorporation and fundamental rights are interlinked because the process of
incorporation is crucial for enforcing the importance of fundamental rights. If
fundamental rights were not incorporated, then it would make the rights less powerful,
because they would no longer bear the authority of protecting the citizens from both
federal and state government intervention. Likewise, there would be no protection for
the crucial rights of the citizens of the states. Despite the importance of incorporation,
not all justices held the same ideas on the implementation of fundamental rights to the
states. The methods of absorption and total incorporation are the main methods that
were expressed in both the majority and dissenting opinions handed down in cases after
the 1925 Gitlow decision.14
Issues of Incorporation
Justice Cardozo’s opinion in Palko v. Connecticut15 highlighted the idea that
fundamental rights hold a higher place among other rights. Although the decision in this
case did not incorporate any right, Justice Cardozo created a principle to the doctrine of
fundamental rights which played an important role in the Supreme Court’s future
jurisprudence. 16 Justice Cardozo stated that those rights which are fundamental
“represent the very essence of a scheme of ordered liberty…principles of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental.”17
This principal established the test of determining if certain rights are fundamental
through the analysis of history. Although the Supreme Court held that the Double
Jeopardy guarantee of the Fifth Amendment was not so crucial to the American form of
liberty that it was deemed fundamental, Justice Cardozo’s opinion agreed that First
Amendment rights were fundamental. Justice Cardozo stated that governments should
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
13
Ibid
Ibid
15
Palko v. Connecitucit 302 U.S. 319 (1937)
16
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 13)
17
Justice Cardozo as quoted in Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg
13)
14
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not violate those “…fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions.”18 In Palko, Justice Cardozo also explained the
method of absorption. This method states that certain rights will be absorbed naturally
into the Due Process Clause of the Fourteenth Amendment not because they are rights
within the Bill of Rights but because they are rights that are deemed “so fundamental
that they must be held to be incorporated and …are binding on the states.”19 This
definition goes back to the fact that the Bill of Rights was not originally indented to
safeguard the people but rather the states. Justice Cardozo’s method of absorption
reiterates that the fundamental aspect of a law is derived instead because it is naturally
fundamental and not because it is stated in the Bill of Rights. Of course, this method
leaves one to question the level of subjectivity within the decision to incorporate or not
to incorporate.
Justice Cardozo’s process of absorption for incorporation was not left unopposed.
In a later case, Adamson v. California,20 Justice Black conveyed the process of total
incorporation in his dissenting opinion. As in Palko, the Supreme Court did not find the
right in question to be fundamental; therefore, it did not warrant incorporation. Justice
Black dissented arguing that “…the adoption of the Fourteenth Amendment was
historically intended to make applicable to the States each and every one of the first
eight Amendments.”21 He believed that the entire Bill of Rights should be incorporated
to the states because using either selective incorporation or the process of absorption22
would lead to “judicial usurpation.” 23 He did not find “historical or constitutional
warrant…for the (Supreme) Court’s practice of substituting its own notions of decent
and fundamental justice, its own version of natural law and natural rights, for the
language of the Bill of Rights.”24 Justice Black believed that the Constitution does not
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18
Ibid.
Ibid.
20
Adamson v. California 332 U.S. 46 (1947).
21
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 14)
22
Although total incorporation and absorption are the main methods there is also the method of selective
incorporation. This method states that the justices should look back to the Bill of Rights in order to tell if the right is
fundamental. Many total incorporationists and absorptionists criticized this method because it was seen as subjective
because it was up to the justices’ different interpretation and views on the Bill of Rights in order to tell if the right
was fundamental. For the purposed of this paper I combine selective incorporation and absorption under the method
of absorption because this method was more widely debated.
23
Ibid.
24
Ibid.
19
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support the practice of only certain rights found to be fundamental to the people. He
found all other methods of incorporation to be subjective; instead, Justice Black thought
it more fair to spare the subjective decisions of what is deemed fundamental and
incorporate all the rights included in the Bill of Rights.
Analysis of Incorporation
On the surface, total incorporation seems to be the best option because it
eliminates the biases of the justices; however, some questioned Justice Black’s view of
total incorporation for its limitations on the Fourteenth Amendment. A few dissenting
opinions that concurred with Justice Black also feared that this method would subject
the Fourteenth Amendment to a confining definition. Some feared that if total
incorporation were to occur via the Fourteenth Amendment then it would make the
amendment limited to what is found only within the first eight amendments of the Bill
of Rights.25 By forcing the Fourteenth Amendment to apply only to the first eight
amendments, the true purpose of the Civil War Amendment would be diluted and
possibly lost. Although each method of incorporation deals with protecting fundamental
rights, the methods are different in their approach and treatment of what rights are
deemed fundamental.
Strict Scrutiny
The test of strict scrutiny is an important aspect of fundamental rights because
this test is applied to legislation that intervenes with fundamental rights. In this test, the
burden of proof is placed on the state in order to show that the interest for the state to
regulate the fundamental liberty is so great that it overrides the fundamental right that
has been infringed upon. This test is used in evaluating laws that restrict fundamental
rights because it is important that the interest is proven to be so great that it warrants a
restriction on rights that are otherwise protected from federal or state intervention. On
the other hand, the mere rationality test is a test that is normally used in conjunction
with legislation that deals with non-fundamental rights. Unlike the strict scrutiny test,
the mere rationality test calls for any state interest that is not compelling to uphold the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25
Ibid.
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legislation in question.26 Because strict scrutiny is only applied in cases dealing with
fundamental rights, “it is the test of strict scrutiny that gives advantage to the
fundamental rights as distinguished from claims that are not fundamental rights.”27
The strict scrutiny test stems from a question that was proposed by both Justice
Brandeis and Justice Holmes: what is the extent of liberty in relation to the Due Process
Clause and to what level is a state able to restrict certain fundamental rights?28 Justice
Stone explains guidelines for strict scrutiny and its proper usage within his famous
footnote in United States v. Carolene Products Co.29 He states that “…legislation which
restricts those political processes which can ordinarily be expected to bring about repeal
of undesirable legislation, [may] be subjected to more exacting judicial scrutiny…”30 The
main emphasis of the footnote was to guide the Supreme Court in those cases in which it
should defer to state legislation. This footnote exemplifies the hierarchy of rights which
establishes that fundamental rights require more rigid restrictions in order to prove that
a statute is narrowly tailored and the interest is so compelling that it necessitates the
violation of the people’s fundamental rights. Justice Stone’s famous footnote helped
demarcate the boundaries for many other cases that dealt with the question of when to
use the strict scrutiny test.
Background on the Right to Privacy
Many rights, such as the right to privacy, have been derived from established
fundamental rights. The right to privacy is not enumerated in the Constitution; however,
it has been justified by the liberty in the Due Process Clause of the Fourteenth
Amendment. The development of the right to privacy faced much opposition. In the case
Twining v. New Jersey, 31 Justice Moody’s majority opinion hinted at future
Constitutional leeway for personal non-enumerated liberties: “…it is possible that some
of the personal rights safeguarded by the first eight amendments against national action
may also be safeguarded against state actions, because a denial of them would be a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
26
These definitions are well known for the topic of fundamental rights; however, they were also solidified in
Constitutional Law II class with Professor Sunderland.
27
Ibid. (pg 17)
28
Ibid. (pg 16)
29
United States v. Carolene Products Co. 304 U.S. 144 (1938).
30
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 17)
31
Twining v. New Jersey 211 U.S. 78 (1908)
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denial of due process…[This assertion is so] because they are of such a nature that they
are included in the conception of due process of law.”32 Although this 1908 decision of
the Supreme Court did not find the right against self-incrimination fundamental within
the Fifth Amendment, the majority opinion would be of a certain importance in the
future cases when the Supreme Court began to rationalize personal liberties as
fundamental rights.
Justice Moody’s support in Twining for non-enumerated rights helped shape the
Supreme Court’s decision fifteen years later in the case Meyer v. Nebraska. 33 As
Konvinz suggests, the legal question addressed in this case does not deal with
enumerated rights in the Bill of Rights, but rather with certain derivatives of the liberty
guarantee. The Supreme Court listed a few categories in which the liberty clause
extends: freedom from bodily restraint, 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 to generally enjoy “the privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men.”34 In the case of Meyer v.
Nebraska,35 the Supreme Court ruled that the statute interfered with the right to engage
in any occupations of life, the right to acquire useful knowledge, and the right to
establish a home and bring up children.36 With the Meyers decision, the Supreme Court
began the eventual search for the right to privacy via the Due Process Clause of the
Fourteenth Amendment. In the 7-2 decision, the Court officially ruled in favor of
including certain personal fundamental rights within the liberty guarantee.37
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
32
Justice Moody’s majority opinion as quoted in Konvitz, Milton R. Fundamental Rights: History of a
Constitutional Doctrine. (pg 61)
33
Meyers v. Nebraska 262 U.S. 390 (1923)
34
When listing a few things that the liberties section of the Due Process Clause, the Supreme Court did not want to
make the list exclusive. The rights listed above are only ones that the Supreme Court deemed to be “without a
doubt” applicable to the liberty guarantee. They are paraphrased from a list in Konvitz, Milton R. Fundamental
Rights: History of a Constitutional Doctrine. (pg 62-63).
35
Milton R. Konvitz, author of Fundamental Rights: History of a Constitutional Doctrine, believes that the Supreme
Court decision was leaning more towards the right of an individual to contract because the defendant had the right to
“teach and the right of parents to engage him so to instruct their children”; however, the decision was more broad as
to establish what was later considered the right to privacy (pg 63).
36
The Supreme Court’s majority opinion as quoted in Konvitz, Milton R. Fundamental Rights: History of a
Constitutional Doctrine. (page 63)
37
Ibid.
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Later in the case Pierce v. Society of Sisters,38 the Supreme Court used the same
rationale found in Meyers in order to grant other personal fundamental rights. The
Court invalidated an Oregon state law that prohibited students from 8-16 years of age to
attend private and parochial schools, holding that the statute violated the private
institution’s property and contract interests.39 The Due Process Clause was given a great
deal of power through the majority opinions in these cases, and because of this weight, it
seems as though the clause has been given a “generative power to stand on its own
without dependence on the specific liberties guaranteed by the Bill of Rights.”40 In
Meyers and Pierce, the Court suggested something more significant in relation to
personal/privacy rights—the Court embraced a non-enumerated right.41
The trend that Meyers and Pierce started continued to develop until the case
Griswold v. Connecticut42 officially solidified the Supreme Court’s support for personal
liberties by establishing the right to privacy through certain “penumbras.”43 In the
Supreme Court’s majority decision, Justice Douglas pointed out “…the foregoing cases
suggest that specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance.”44 Justice
Douglas explained that the different guarantees of certain enumerated fundamental
rights combine to create “zones of privacy.”45 For example, he stated that the First,
Third, Fourth, Fifth, and Ninth Amendments all have penumbras that help to create the
right to privacy. 46 Justice Douglas expressed that this right is “deeply rooted in
American tradition and history,” and fit some of the requirements of a fundamental
right.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
38
Pierce v. Society of Sisters 268 U.S. 510 (1925)
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 63)
40
Ibid. (pg 65)
41
It is important to note that in neither of these cases “the Court based its decision on any ‘letter’ of the Constitution,
except the concept of ‘liberty,’ as the term is used in the Due Process Clause.” Konvitz, Milton R. Fundamental
Rights: History of a Constitutional Doctrine. (pg 64)
42
Griswold v. Connecticut 381 U.S. 479 (1965)
43
This right was also known as the “right to be let alone” but it stems from the right to privacy. For this reason it is
recognized as both in other texts. The term “penumbras” was coined by Justice Douglas as a way of describing a
privacy right as a derivative from the “penumbras” (shadows) that stem from other enumerated rights. Leahy, James
E. Liberty, Justice, and Equality: How These Constitutional Guarantees Have Been Shaped by the United States
Supreme Court Decisions Since 1789. Jefferson, North Carolina: McFarland & Company Inc., 1992. (pg 19)
44
Justice Douglas as quoted by Leahy, James E. Liberty, Justice, and Equality (pg 20)
45
This terminology comes from Justice Douglas’s opinion in the case Griswold v. Connecticut 381 U.S. 479 (1965).
Sullivan & Gunther, Constitutional Law. 2010
46
Leahy, James E. Liberty, Justice, and Equality (pg 20)
39
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The decision by Justice Douglas in Griswold was both praised and criticized.
Justices Goldberg, Brennan, and Chief Justice Warren agreed with the decision;
however, these Justices held that the opinion should not simply rest on penumbras of
the first eight amendments because the Ninth Amendment “expressly recognizes there
are fundamental personal rights such as this one which are protected from abridgement
by the Government even if they are not specifically mentioned in the Constitution.”47
Through this statement the Justices hinted at upholding a non-enumerated right as
fundamental. On the contrary, Justice Black48 and Stewart argued that the right to
privacy was neither applicable nor fundamental because no wording in the Constitution
protected a right to privacy.
Although ill feelings surrounded the Supreme Court’s creation of a nonenumerated right in Griswold, the new right, the right to privacy, was upheld again in
Roe v. Wade49 which only further solidified the right’s protection under the Due Process
Clause. The Supreme Court invalidated Texas laws prohibiting abortions because the
Court found that they violated a woman’s right to terminate her pregnancy. As in
Griswold, the Supreme Court concluded that, “[Roe] would discover this right in the
concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process
Clause; or in person by the Bill of Rights or its penumbras….”50
The majority opinion in Roe was not fully embraced. Justice Rehnquist dissented
from the majority stating that “…liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law.”51 Instead of deciding
if the statutes violated the woman’s newfound right, Justice Rehnquist found that the
statute’s government goals were legitimate. 52 Despite the dissenting opinions, the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
47
Ibid. (pg 21) The Ninth Amendment also reiterates the point that the Supreme Court enforced since the Meyers
and Pierce cases. Both the Court and the Ninth Amendment state that some fundamental rights do not have to be
enumerated in the Constitutional, but yet they are still fundamental because they uphold essential and fundamental
liberties that the federal and state governments are not able to inflict upon.
48
It is interesting that Justice Black was an advocate for total incorporation of all of the Bill of Rights, but in
Griswold he did not find the right fundamental. This is because in his belief of total incorporation Justice Black only
stressed the rights already enumerated within the Bill of Rights to be incorporated—not the incorporation of any
other non-enumerated rights. Ibid.
49
Roe v. Wade 410 U.S 113 (1973)
50
Leahy, James E. Liberty, Justice, and Equality (pg. 22)
51
Ibid. (pg 23)
52
Ibid. Justice White also delivered a dissenting opinion in which he reiterated what the dissenters stated in
Griswold. He held that there was nothing in the language of the Constitution to enforce the right to privacy. In many
cases dealing with privacy rights in the future this was the main concern by many dissenters.
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majority decision in Roe helped advance the personal/privacy rights that were upheld
starting with Meyers and continued with other cases including Webster v. Reproductive
Health Services53 and Planned Parenthood of Southwestern Pa. v. Casey.54
Analysis of the Right to Privacy
In the previously discussed cases, the Supreme Court discovered and upheld a
non-enumerated right; however, there was much controversy that arose in these cases
because the Supreme Court decisions continued to “promote democratic freedoms that
were protected but not explicitly stated in the Constitution.” 55 Justices Black and
Stewart agreed that “There are, of course, guarantees in certain specific constitutional
provisions which are designed in part to protect privacy at certain times and places with
respect to certain activities.”56 Despite their acceptance that specific provisions may lead
up to the protection of privacy, the Justices dissented because “…the Court talks of a
Constitutional ‘right of privacy’…But I think it belittles that Amendment [the Fourteenth
Amendment] to talk about it as though it protects nothing but ‘privacy.’”57 The Justices
suggested that it was dangerous to include privacy in the Fourteenth Amendment
because it would “…dilute or expand a Constitutional guarantee. ‘Privacy’ is a broad and
ambiguous concept which can easily be reduced in meaning but which can also easily be
interpreted as a constitutional ban against many things other than searches and
seizures.”58 Justice Black and Stewart pointed out that although a right may be derived
from certain penumbras, the right to privacy was not a fundamental right. They
embraced the right of the government “…to invade it [privacy] unless prohibited by
some specific constitutional provision,”59 and in this case, Justices Black and Stewart
did not feel as though the Supreme Court should prohibit the right of the government to
invade privacy.
The Supreme Court’s support of the right to privacy faced opposition. Justice
White did not support the right reaffirmed in Roe, saying: “I find nothing in the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53
Webster v. reproductive Health Services 492 U.S. 490 (1989)
Planned Parenthood of Southeastern Pa .v. Casey 505 U.S. 833 (1992)
55
Sullivan & Gunther, Constitutional Law 2010 (pg 433)
56
Ibid. (pg 433)
57
Ibid.
58
Ibid.
59
Ibid. (pg 434)
54
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language or history of the Constitution to support the Court’s judgment.”60 He felt as
though “The Court simply fashion[ed] and announce[d] a new constitutional right for
pregnant mothers and, with scarcely any reason or authority for its action, invested that
right with sufficient substance to override most existing state (abortion) statutes.”61
Justice White did not think that the right to privacy should extend to pregnancies let
alone be upheld as fundamental because it lacked roots within the rights of the
Constitution.
Background on Economic Liberties
Unlike the right to privacy, economic liberties are rights that are enumerated in
the Constitution and have been incorporated to the states.62 The Fifth Amendment of
the Constitution states “…[that] private property [should not] be taken for public use,
without just compensation.”63 Justice Black listed this as a right that the Supreme Court
had found to be “…of fundamental nature that is guaranteed by the Bill of Rights and
therefore made immune from State invasion by the Fourteenth Amendment.”64 Because
the last clause of the Fifth Amendment was always stated in the Constitution, “there was
no ‘discovery’ of this right unlike with the right to privacy.” In the past, the Takings
Clause was upheld in cases where land was taken from private owners for some sort of
public use (which is a requirement) such as railroads, schools, and highways. For
example, “In the mid-1950’s, the Supreme Court held that takings were for public use
when they were intended to relieve various forms of urban ‘blight’.”65Also, in projects for
cities that faced extreme economic hardships, the Takings Clause was applied in order to
take rundown buildings and turn them into parks, schools, or other spaces that were
clearly for the public use.66 In past cases that dealt with the last clause of the Fifth
Amendment, the Supreme Court upheld the state legislation because the circumstances
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60
Ibid. (pg 440)
Ibid.
62
The economic liberties are fundamental because they were the first provision of the Bill of Rights to be applied to
the states in 1987.
63
United States Constitution in Sullivan & Gunther, Constitutional Law 2010 (pg A-9)
64
Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. (pg 69-70)
65
In Kelo the land was taken but Susette Kelo’s home was not considered part of the urban “blight” but instead it
was in good condition. Epstein, Richard A. "Supreme Folly." The Wall Street Journal, June 27, 2005. Accessed
April 26, 2011. http://online.wsj.com/article/0,,SB111982975240969952,00.html.
66
Ibid.
61
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fell under case precedent and fit the requirements of just compensation and public use;
however, after the New Deal Legislation, the Court began a new trend that lent a
broader interpretation of the purpose clause.67
Kelo v. City of New London68 is an example in which the Supreme Court upheld
the Takings Clause under shaky circumstances by deferring to state legislation. In 1990,
after years of extreme economic issues, the City of New London was designated as a
“distressed municipality.”69 The Supreme Court upheld the New London Development
Corporation’s plan to help boost the economy of the City of New London. This plan
involved taking land and homes, some of which were in good condition, 70 and
designating part of the land for a $10 million Trumbell State Park project and the other
part for a $300 million contract with Pfizer for the construction of a research institute.71
The Supreme Court refused to “…adopt a new bright-line rule that economic
development does not qualify as public use” holding that “promoting economic
development is a traditional and long accepted function of government…and the
government’s pursuit of a public purpose will often benefit individual private parties.”72
Despite Susette Kelo’s fight, the Supreme Court favored the state legislation for the
greater public benefit opposed to Susette Kelo and other homeowners private benefits.
Analysis of Economic Liberties
There was much controversy surrounding the decision of Kelo because it
established a new definition for the “public use” requirement. Past cases involving the
Takings Clause for the construction of railroads, schools, and highways are clear
examples of projects that were meant for the purpose of public use. In order to use a
phrase more fitting for the Supreme Court’s holding, the Justices redefined the idea of
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67
James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property
Rights (New York: Oxford University Press, 1992). (pg 119)
68
Kelo v. City of New London (545 U.S. 469 2005)
69
This is the terminology that is used to classify the City of New London in the background information for the
case. Sullivan & Gunther, Constitutional Law 2010 (pg 401)
70
The fact that Susette Kelo’s home and others was in good condition adds an interesting dynamic to this case
because in the past it was usual for the Supreme Court to take homes that were run down because they were a part of
the cause for the city’s poor economy; whereas, in this case the Court still took these sturdy homes even though they
were not making New London’s economy worse. Reference footnote 69 for more information on “urban
blight.”(Professor Sunderland’s Con Law II class discussions)
71
Sullivan & Gunther, Constitutional Law 2010 (pg 401)
72
Ibid. (pg 403)
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public use as public purpose.73 Similarly, the Supreme Court felt that although the Pfizer
project was not a public company it would create new jobs for the people of the City of
New London and help boost the economy—which was for the benefit of the greater
public purpose. In the majority opinion, the Supreme Court stated “…it has long been
accepted that the sovereign may not take the property of A for the sole purpose of
transferring it to another private party B, even though A is paid just compensation.”74
This requirement is one that the Supreme Court has failed to adhere to strictly. For
example, in the case Strickley v. Highland Boy Gold Mining Company,75 the Supreme
Court “…embraced the broader…interpretation of public use as ‘public purpose’.”76 In
many cases, the interpretation of public purpose opposed to public use did not directly
benefit the people. Public purpose came to mean anything, no matter how loose of a
connection, that in some way would benefit the public.
In Kelo and many other economic liberties cases dealing with the Fifth
Amendment after the New Deal legislation, the Supreme Court adopted a looser form of
the public use requirement. The public purpose requirement tends to contradict the
original intent of the Fifth Amendment Takings Clause. The Fifth Amendment—from
which the Takings Clause stems— is a fundamental right, and given that a fundamental
right requires strict scrutiny, unless specified otherwise by the Supreme Court, it would
follow that strict scrutiny ought to be applied in cases like Strickley and Kelo in order to
prove the compelling interest. This rationale does not occur in the decisions of the
Court. If strict scrutiny were applied in Kelo, then it would force the Supreme Court to
adhere to the original constitutional meaning of public use. Such scrutiny would
eliminate the trend that the Court is following by embracing the term public purpose
instead of public use. By adopting the broader requirement of public purpose, the
Supreme Court strayed from seeking a compelling interest that would have surfaced
with the use of strict scrutiny; instead, the Court supported a broader state interest
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73
Although the decision did not say that the two terms were equal in meaning, the Supreme Court was attempting to
substitute public purpose in for public use since the early 1900’s cases. This shift symbolizes the Court’s new take
on the Takings Clause as we see here with a more modern case.
74
Ibid. (pg 401)
75
Strickley v. Highland Boy Gold Mining Company 200 U.S. 527 (1906). When the Fifth Amendment was applied
to the states at the start of the 19th century “it endorsed the ‘use by public’ as the proper definition of public use;”
however, this strict view loosened and eventually became public purpose.
76
Sullivan & Gunther, Constitutional Law 2010 (pg 402)
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through the public purpose rationale. In other Takings Clause cases, the public use is
obvious because it usually involves taking private land for primary use by the public. In
the case of Kelo, the Supreme Court stretched the constitutional requirements in order
to continue to defer to state legislation. Although the Supreme Court continued its long
tradition of upholding state legislation in economic cases, the Court also embraced a
dangerous precedent that allows the treatment of economic liberties cases to be subpar
compared to other fundamental right cases.
Among cases that involve both privacy rights and economic liberties, the
Supreme Court tends to grant rights dealing with privacy more preference in
comparison to rights dealing with economic liberties. As Kathleen Sullivan states, “The
Court has withdrawn from careful scrutiny of most economic regulations but has
increased intervention as to laws infringing privacy and other noneconomic personal
interests not explicitly protected by the Constitution.”77
Richard Epistein wrote in the Wall Street Journal, “Justice John Paul Stevens
held that courts, especially federal courts, should be hugely deferential to a government
decision…to displace one private property owner in favor of a second private party in the
name of overall economic development.” 78 In Kelo, Justice Stevens stated that the
Supreme Court should defer to state’s economic legislation. State preference helps
explain the Court’s failure to apply strict scrutiny in cases of economic liberties. When
addressing economic liberties, the state legislation pertains to specific geographical
areas, and the Supreme Court defers to the legislation because the state is more aware
than the justices of the certain needs for the area. If the Court feels that states have
better decision-making capabilities when dealing with the economic standpoint of a
certain area, then it follows that the Supreme Court will make all opportunities to
adhere to state legislation possible. For the Court in Kelo and Strickley, this means
bypassing the Constitutional requirement of strict scrutiny for a less compelling interest
presented through public purpose.79
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77
Ibid. (pg 384)
Epstein, Richard A. "Supreme Folly." The Wall Street Journal, June 27, 2005.
79
Epstein mentions that in some cases the expansive reading of public purpose has been used for good takings of
private property for “private purposes with indirect private benefits.” Ibid.
78
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Conclusion
There are many possible reasons for why the privacy rights are given preferential
treatment. Among the top of these reasons lies the issue of enumeration. Going back to
the decisions of Griswold and Roe, there were major concerns addressing the existence
of the right to privacy. Griswold stated that the privacy right was not an enumerated
right, but rather derived from different “penumbras” or rights that are fundamental in
the Bill of Rights. The right to privacy is not specifically spelled out; therefore, there is
more room for different interpretations of its true meaning, which creates more
opportunities for conversation and debate as to what situations rightfully fall under the
non-enumerated right.
Although it is important for the Supreme Court to uphold the right to privacy, it
is also critical for the Court to apply a more rigid interpretation of the requirements for
economic liberties. Clear differences exist between privacy rights and economic
liberties; however, the differences are not so great as to dictate the varying treatment in
the Supreme Court’s decisions on each of the two rights. As stated before, the Court
applies strict scrutiny to privacy rights. Although this may seem odd because privacy
rights are not specifically enumerated in the Constitution, the rights are still inherent
and thus found to be fundamental by the Court. Even if the exact test of strict scrutiny is
not applied in fundamental rights cases, it is imperative that a higher level of scrutiny be
upheld. It is difficult to suggest constant adherence to one specific test for fundamental
rights when the Court itself has had trouble maintaining a consistency in this regard.
Although a new test, the undue burden test,80 is followed in Planned Parenthood of
Southeastern Pa .v. Casey, this test still requires a higher level of scrutiny just like the
strict scrutiny test. In the cases of economic liberties the Court should look to the
decisions in privacy rights cases for an example of their continuous use of a higher level
of scrutiny. It is detrimental to fundamental rights if the Supreme Court continues to
move away from the Constitutional requirements towards the broader requirements
that were upheld in Kelo. If this pattern progresses, one might start to wonder what
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80
The undue burden test was first applied in the case of Planned Parenthood of Southeastern Pa .v. Casey. Unlike
the test of strict scrutiny this test placed the burden of proof on the mother, instead of the state, to show that the
statute violating a fundamental right placed an undue burden on the woman.
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place economic liberties possess within the hierarchy of rights? Over time, the
fundamental aspect of economic liberties will slowly decline and the right’s importance
will pale in comparison to other rights in which the Court continues to demand a
narrowly tailored compelling interest.
After examining the Supreme Court’s opinions in cases dealing with privacy
rights and economic liberties, it is clear that the Court grants privacy rights preferential
treatment. This treatment stems from a number of different reasons including the fact
that privacy rights are not enumerated but derived while economic liberties are clearly
stated within the Constitution. Given the fact that both rights are deemed so
fundamental that it is crucial that all humans are granted these rights without
interference by the federal or state governments, it is important that the Supreme Court
uphold the requirements of fundamental rights in cases dealing with each constitutional
guarantee.
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