United States v. Carolene Products (1938) established a dichotomy between enumerated and unenumerated rights. Under Footnote Four, laws that infringed provisions of the Bill of Rights would be scrutinized closely. By contrast, all other sorts of rights, including liberties protected by the Due Process Clause, would be afforded only rational basis scrutiny. Williamson v. Lee Optical (1955) made that rational basis scrutiny even more deferential. That test became the New Deal settlement on the Due Process Clause. Until it wasn’t.
Griswold v. Connecticut (1965) found that a right of privacy could be found in the “emanations” of the Bill of Rights. At least on paper, the Court was trying to stay within the Footnote Four framework, though I’m not sure anyone really believed it. But Griswold made a more important move. To respond to the charge of Lochnerism, Justice Douglas sought to distinguish the Court’s past cases. West Coast Hotel was retconned as a repudiation of substantive due process only for economic rights. By contrast, substantive due process was still permissible personal rights cases. Decisions like Meyers v. Nebraska or Pierce v. Society of Sisters were reaffirmed acceptable as First Amendment decisions, even though both predate the modern incorporation doctrine.
Here is how Justice Douglas attempts to reconcile the doctrine:
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) — indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
Here is my question. Between Carolene Products (1938) and Griswold (1965), did the Supreme Court decide any “personal” liberty Due Process Cases? I am not including First Amendment cases which, through incorporation, are Fourteenth Amendent cases. I am asking about actual unenumerated claims to “personal” liberty under the Due Process Clause. I realize that the economic/personal line is bit anachronistic, as Carolene Products did not countenance this distinction.
The only case I can think of is Skinner v. Oklahoma ex rel. Wlliamson (1942). This was an unusual penal law that sterilized “habitual criminals.” The majority opinion, per Justice Douglas, found the statute violated the Equal Protection Clause. But the analysis seemed to conflate Equal Protection with Due Process:
But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of “equal protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.
In Skinner, Justice Stone (the author of Footnote Four) would have applied the Due Process Clause:
And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process. There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152, n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action.
Are there other such cases? Please email me if you can think of other cases.
