Privacy, personhood, and family - Modern Substantive due process West Virginia State Board of Education V. Barnette - Overview

• Jackson 1943. Principles from the Bill of Rights grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs.

• We must now transplant these rights to a soil in which laissez-faire concept of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened government controls.

• These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our judgment. However, we act in these matters not by authority of our competence but by force of our commissions.

• AK. Bruce Ackerman gets a lot of mileage from this quotation.

The right of privacy

Individual rights after the New Deal

• If the New Deal revolution had a single message for the courts, it was. Thou shall not Lochner. This rule was given such constant (at least verbal) obeisance from the judiciary that it might as well be part of the USC. The problem the courts faced after the New Deal, then, was what (if anything) remained of unenumerated individual rights.

• Two important precedents from Lochner period are the wellspring of the modern privacy doctrine. Lochner is dead, but Meyer and Pierce remain not only alive, but fecund.

• Lawyers have different views as to what the New Deal actually was:

• the rediscovery of the true USC, ending an anomalous period in which SCt illegitimately imposed its own laissez-faire philosophy on the American people. [e.g. Lochner was wrong the day it was decided.]

• a true constitutional revolution, in which the people, by supporting FDR with supermajorities, exercised their power to change the USC; or

• an illegitimate usurpation of power which should be overturned by the judiciary. [held by some academics, but doesn’t seem to have much political future; Senate rejected nomination of Siegan to federal judgeship.]

• Problem that judges faced after New Deal was “what is left of the 14^th Amendment?”

• General rule is now judicial abdication. Holmes’s view has prevailed.

• Before and after the New Deal, courts have asked whether a challenged law’s infringement of liberty was reasonable, given all the circumstances. But Carolene Products presumed the existence of facts that support the legislature’s judgment. The upshot is a rubber stamp in favor of legislation. Carolene Products footnote appears to provide the only exceptions.

• The problem now is that the fundamental rights cannot be equated with property rights. What, then are the unenumerated fundamental rights (if there are any)? This is the problem that the post-New Deal court faces.

• This is the modern situation of “Thou shalt not Lochner” in which the enterprise of discovering fundamental rights is situated.