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Debates over which rights are fundamental raise concerns about the power of the Supreme Court and the relationship between rights and democracy. Simply put, rights limit democratic action. When the Court holds something as a fundamental right, it greatly limits the space for making policy on that issue, often angering those who support policies granting the right will limit or end. The controversy is usually greater when the right in question is not in the Bill of Rights, as opponents can—and do—charge that justices have “made up” a right in order to win a political battle, “making law” rather than interpreting it. Justices are sensitive to these critiques in their fundamental rights jurisprudence. In Griswold, for example, Justice Douglas goes to some lengths to assure the reader that the Court is not acting as a “super-legislature.”

In order to make sense of the initial debates over the right to privacy, we must first briefly examine fundamental rights decisions prior to Griswold. There are two crucial points to make here. First, consideration of fundamental rights in the 1960s was influenced by the fact that in the New Deal era, the Court had largely rejected the notion of unenumerated fundamental rights to protect New Deal programs from constitutional challenge by economic conservatives. Second, while the fundamental rights jurisprudence of the pre-New Deal era largely focused on economic issues, there were a handful of other developments that would prove influential to the creation of the right to privacy.

The Rise and Fall of Economic Substantive Due Process

As noted above, the Court’s first brush with the claim that the Fourteenth Amendment protected unwritten fundamental rights came in the Slaughterhouse Cases (1873). In its opinion, the Court rejected the claim that the Fourteenth Amendment protected unenumerated economic rights (here, a right to “make a living” purportedly threatened by the slaughterhouse monopoly) and prevented the Privileges and Immunities Clause from serving as a means for incorporating fundamental rights against the states (whether in the Bill of Rights or not).

However, support for the position that the Fourteenth Amendment protected unenumerated rights would only grow after its narrow defeat in Slaughterhouse Cases. By the 1890s, a majority of the Court agreed that the Fourteenth Amendment (now through the Due Process Clause) protected fundamental economic liberties—such as the ability to make and enforce contracts, to sue in court, to hold and purchase property, or to freely choose one’s occupation. As the cases here did not employ “due process” in the traditional sense—i.e. whether the proper process was followed in a legal dispute—scholars have come to classify such cases as “substantive due process,” decisions in which the “liberty” term mentioned in the Due Process Clause is held to protect substantive, fundamental rights.

The motivations for protecting these economic rights were complex and varied.

On the one hand, protecting economic rights could be viewed as part of a broader concern for the status of newly freed slaves, who faced constant harassment, violence, and repression in response to their attempts at economic integration into southern society. Economic rights, here at least, were linked to civil rights.

On the other hand, as the country abandoned Reconstruction and meaningful civil rights protection in the late 1870s and 1880s, the movement for economic rights became driven more by businesses pushing back against workplace regulation. Progressive attempts to regulate a minimum wage, for example, were viewed as inappropriate burdens on economic liberties (i.e. the freedom of an employer and an employee to set a contract for whatever wage they agree upon). It was this version of the argument that the Court most frequently advanced.

To be clear, the Court did not invalidate every attempt to regulate the economy under this doctrine. It instead made distinctions between what it viewed as “legitimate” health and safety regulations that protected everyone (such as vaccine mandates) and “illegitimate” attempts to regulate wages or working hours per se or benefit certain groups (unions) at the expense of other groups (employers).

This distinction was most famously made in Lochner v. New York, a 1905 Supreme Court case often (negatively) cited by the opinions in this section of the textbook. Lochner involved a New York maximum hours law for bakers, which prohibited any baker from working more than 60 hours a week or 10 hours a day. Lochner–an employer of bakers—violated the law. After being convicted and fined for the second time, Lochner appealed to the Supreme Court, arguing the New York law violated his fundamental economic rights under the Due Process Clause of the Fourteenth Amendment. The Court agreed, and by a 5-4 margin, struck down the New York law. Unlike, for example, a law restricting the working hours of miners, the regulation of bakers’ hours did not raise “legitimate” health or safety concerns in the Court’s eyes. As such, these regulations were illegitimate violations of economic freedom—bakers and bakery employers alike were autonomous agents who should have the freedom to set wage and working hours agreements as they see fit.

Decisions such as Lochner posed a considerable challenge to Progressives and New Deal supporters who desired greater government regulation in order to address the actual power relations between workers and employers. Once the Great Depression swept FDR and the Democratic Party into office in 1932, Lochner’s economic substantive due process and the extensive regulatory state envisioned by the New Deal coalition could not long coexist. Despite a few years of conflict, FDR’s administration outlasted the conservative majority on the Supreme Court, appointing justices who supported the New Deal project and rejected the doctrine of economic liberties as an undemocratic means for protecting business interests. Rejecting substantive due process doctrine altogether, then, was the cleanest way to ensure that conservatives could not resurrect the doctrine to hamper economic regulation.

This, then, was the legacy that faced the Supreme Court after the New Deal. In the judicial mind, using the Fourteenth Amendment to protect unenumerated rights was linked to Lochner and conservative attacks on the modern state. As such, liberal justices were initially reluctant to revive such doctrine, even if they believed a state law unnecessarily violated individual liberties not otherwise protected by the Bill of Rights.