Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

forced by the sovereign to conform is more intrusive than being forced by the individual to avert one's gaze.


A Fundamental but Uncertain Right

When a constitutional seed is planted, it is uncertain when, how or even if it will grow. The history of the right of privacy aptly illustrates the uncertainties of constitutional development. If left to Justice Black, a general right of privacy never would have been acknowledged as fundamental. Despite his objections and persistent criticism by others, it remains rooted in the Fourteenth Amendment. Although constitutionally secured, its limits and even its existence continue to be debated. Viewed in a broader historical context, modern privacy concepts further a legacy of fundamental rights development that includes Taney's use of due process to support slavery and the Lochner Court's emphasis on it to protect economic freedom. In its contemporary context, privacy also is a concept that is at war with itself. Whether a principle flourishes as a fundamental right or withers as a failed theory is a function of constitutional choice and prioritization. Although established by precedent, the right of privacy is not immunized by constitutional text from pressures to eliminate or reduce it. Its nature and durability depend ultimately on the continuing viability and influence of the values that generated and have maintained it.


Bibliography

Cases

Bowers v. Hardwick, 478 U.S. 186 ( 1986).

Buck v. Bell, 274 U.S. 200 ( 1927).

Cohen v. California, 403 U.S. 15 ( 1971).

Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841 ( 1990).

Eisenstadt v. Baird, 405 U.S. 438 ( 1972).

Erznoznik v. City of Jacksonville, 422 U.S. 205 ( 1975).

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 ( 1978).

Griswold v. Connecticut, 381 U.S. 479 ( 1965).

Katz v. United States, 389 U.S. 347 ( 1967).

Lehman v. City of Shaker Heights, 418 U.S. 298 ( 1974).

Meyer v. Nebraska, 262 U.S. 390 ( 1923).

Michael H. v. Gerald D., 491 U.S. 110 ( 1989).

Moore v. City of East Cleveland, 431 U.S. 494 ( 1977).

Olmstead v. United States, 277 U.S. 438 ( 1928).

Packer Corp. v. Utah, 285 U.S. 106 ( 1932).

Paris Adult Theatre I v. Slaton, 413 U.S. 49 ( 1973).

-158-

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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