This understanding laid the groundwork for the development of constitutional privacy courts to cover a wide range of personal issues, including family living arrangements, parental rights, marriage and abortion. But it remains controversial, not only because of the fierce division of opinion on abortion, but also because it allows broader judicial power to interpret the Constitution.
The ‘dangerous area’ of constitutional privacy
First, a quick explanation about Dobbs and denied the constitutional right to abortion. It is a story that begins in the 1890s and continues through 1937, the period in which the Supreme Court entered the court. Dobbs and court opinions have previously been described as the “dangerous area” of substantive proceedings.
For about four decades in the early 20th century — the so-called Lochner Era, named for a representative case of the period—The Supreme Court has applied the Fourteenth Amendment’s due process provision extensively to review and dismiss a wide range of economic and social provisions on the grounds that they are unreasonable . Applying a “substantive” understanding of the procedure, judges are often free to add their own ideas about the appropriate limits to government regulation of individuals.
This assessment is not limited to areas of particular personal interest but applies broadly to government regulations regarding wages, working conditions, the economy and commercial transactions, as well as benefits. more personal interests, such as parental choices regarding education and parenting.
Frustration with judges’ willingness to repeal popular law on the basis of their own view of rationality grew during the Great Depression, when the courts’ understanding of the “due process of substantive rule” has become an obstacle to many New Deal efforts to revive the economy and protect the interests of vulnerable people.
Under increasing pressure from public opinion, The Supreme Court reversed the process in 1937 and give up Lochnerunderstanding of substantive proceedings and the power of the court over second-guessed common-sense rule. After 1937, courts understood substantive proceedings to mean that whenever the government interferes with individual liberties, the courts must act in a reasonable manner to pursue the legitimate interests of the state. country. Under this “test of reasonable grounds,” virtually all government regulations are considered constitutional.
In 1965, in Griswolds v. Connecticut, the Supreme Court restored a broader understanding of the Constitution’s protections to individual liberties after repealing a Connecticut law providing for contraceptives. But it hesitates to describe this defense as a fundamentally correct process, given the near-universal rejection of the Supreme Court’s abuse of its role in the Lochner Era. Instead, it attributes protection to a more amorphous “right to privacy” implicit in constitutional guarantees without committing to any written source. The Griswold The court also emphasized that this right to privacy did not open the door to more active consideration by the court of normal economic and social regulations.
In Roe v. Wade 1973the court found that the right of women to choose abortion falls within the scope of higher protections for individual privacy, and also found that it is better to acknowledge that this higher protection comes from the Fourteenth Amendment substantive due process.
In future cases, the Supreme Court continues to acknowledge that its enhanced protections of privacy rights are the product of substantive due process review while stressing that this is appropriate. consistent with the refutation Lochner because it only applies to “fundamental” libertarian interests. Thus, the doctrine of the court required to distinguish “fundamental” libertarian interests, for which government intervention was deemed unconstitutional, from the ordinary liberal interests, for which the government was entitled. is limited freedom as long as acting is reasonable.
Judges continue to fight over which freedoms rank as fundamental. A narrower test favored by conservative judges restricts fundamental rights only to those that are expressly enshrined in the text of the Constitution or would be deemed necessary at the time of the Amendment. The fourteenth judgment was issued in 1868. A more extensive approach, applied in Roe and other cases, look more at a contemporary assessment of profound stakes for the individual. However, another approach, suggested in cases like Lawrence and Texasto the evolving understanding of essential individual liberties, as evidenced by popular consensus.
