The 1787 Project

In oral arguments for Griswold v. Connecticut (1965), Justice Black asked Griswold's counsel whether the right to privacy protecting contraception would also protect a right to abortion. At that point, the question was merely hypothetical, but the Supreme Court did take the opportunity to address that question directly in Roe v. Wade (1973), and we have been divided about it ever since.

The case of West Coast Hotel v. Parrish (1937) marked the Supreme Court's move away from economic substantive due process, but that wasn't the end of substantive due process as a doctrine. Although the Supreme Court became deferential to legislative judgments on economic or commercial regulations, it continued to scrutinize other substantive deprivations of liberty under the Fourteenth Amendment's Due Process Clause. An important example of the latter kind of substantive due process came in Griswold v. Connecticut (1965), a case about a long-standing legal prohibition of contraception.

The case of Lochner v. New York (1905) is remembered as a paradigmatic example of economic substantive due process, where the Supreme Court asks whether state economic regulations are unreasonable deprivations of liberty or property in violation of the Fourteenth Amendment's Due Process Clause. With the case of West Coast Hotel v. Parrish (1937), the Supreme Court had turned away from this approach to Due Process and signaled its future deference to legislative majorities in cases involving economic regulations.

To understand the Supreme Court's approach to constitutional rights, we need to consider another doctrine alongside that of incorporation: substantive due process. We'll spend the next several episodes looking at the ebb and flow of the Supreme Court's Fourteenth Amendment substantive due process jurisprudence.

The Supreme Court settled on selectively incorporating rights from the Bill of Rights into the Due Process Clause of the Fourteenth Amendment in a series of cases in the mid-twentieth century. The story of how that happened has a lot of twists and turns that were summarized in Justice Alito's opinion announcement in McDonald v. City of Chicago (2010).

In the Slaughter-House Cases (1873), the Supreme Court gave its first major interpretation of the meaning of the Fourteenth Amendment. The result was a narrow reading of the Fourteenth Amendment's Privileges or Immunities Clause that left intact the basic antebellum understanding of the relationship between the Bill of Rights and the States that we saw in Barron v. Baltimore (1833). However, that understanding began to change in the 20th century when the Supreme Court started incorporating aspects of the Bill of Rights into how it read the Fourteenth Amendment's Due Process Clause.

In Barron v. Baltimore (1833), the Supreme Court highlighted the dominant understanding in the nineteenth century that the limitations on government in the Bill of Rights apply only the national government and not to state governments. Somewhere along the way, that understanding has changed. Over the next few episodes, we'll discuss the complicated story of how we came to apply (most of) the Bill of Rights to the states.

In this episode, we look at specific clauses in the Constitution that address the institution of slavery and consider briefly Hamilton's case against the Bill of Rights in Federalist no. 84.

In the Declaration of Independence, the Continental Congress affirmed as a self-evident truth that "all Men are created equal" and "endowed by their CREATOR, with certain unalienable Rights" and "that among these are Life, Liberty, and the Pursuit of Happiness." The Declaration then moves to the question of political forms, or which constitution of government is "most likely to effect their Safety and Happiness." The charges against the King that the colonists then submit as facts to a candid world point to an answer to this question by highlighting ways in which the King violated the principle of government by consent by interfering with representative legislatures; did not allow for an independent judiciary; and abused executive power. Read in this light, the Declaration helps to make sense of the structure of the state and national constitutions written after the Declaration of Independence. Unlike the Declaration, however, the U.S. Constitution first drafted in 1787 did not mention individual rights, a lacuna we will explore next week.

In his famous "I Have a Dream" speech, Martin Luther King, Jr., pointed back to the Declaration of Independence and the Constitution. "When the architects of our Republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir." Packed within the first paragraphs of King's most famous speech are questions of importance for us as we study constitutional rights this semester.