Justice Blackmun, dissenting from the majority's opinion in Bowers v. Hardwick, expressed a hope that the Court eventually would understand that depriving individuals of the right to choose for themselves how to conduct their intimate relations poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do." Blackmun's lament, although responsive to the Court's restrictive charting of the perimeters of privacy, reflects a tone that is not uncommon among dissenting opinions that sense misplaced understanding. In a dissent authored by Justice Sutherland in West Coast Hotel v. Parrish, it was argued that the Fourteenth Amendment's accounting for "freedom of contract is so well settled as to be no longer open to question." Sutherland's assumption that "liberty of contract is the general rule" and was not "questioned by the present decision" seemed especially plaintive as the Court proceeded to dismantle precisely that premise.
Commenting on Blackmun's reaction in Hardwick, Laurence Tribe suggested that "[b]efore that hope is too readily dismissed as a dissenter's wishful thinking, we should recall that Justice Brandeis' formulation of the right of privacy as the 'right to be let alone'--the most frequently quoted words in the jurist's privacy lexicon--was also penned in dissent." The observation is relevant not only for critics who, like Tribe, assert that Hardwick "probably was not decided on principled grounds." It also illuminates a significant truth about constitutional development in general. Simply put, a point ventured may be eventually accepted even if immediately rejected, and what comes half circle may travel full circle.
The history of fundamental rights analysis exemplifies both possibilities. Substantive due process review originally was rejected, later embraced,