No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including
liberty interests and
incorporated rights. The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,1 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the
incorporation of fundamental rights.2 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion,3 remain controversial.
A problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.4 However, in Bowers v. Hardwick,5 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.6 Then, in Lawrence v. Texas,7 the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.
More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and
restrain a court’s determination of the scope of substantive due process rights, held that the concept of
liberty protected under the Due Process Clause should first be understood to protect only those rights that are
deeply rooted in this Nation’s history and tradition.8 Moreover, the Court in Glucksberg required a
careful description of fundamental rights that would be grounded in specific historical practices and traditions that serve as
crucial guideposts for responsible decisionmaking.9 However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.10 Instead, the Obergefell Court recognized that fundamental rights do not
come from ancient sources alone and instead must be viewed in light of evolving social norms and in a
comprehensive manner.11 For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a
careful description of the right in question—was
inconsistent with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as
received practices could serve as their own continued justification and new groups could not invoke rights once denied.12
Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.13 While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to
the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.14 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should
ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’15