Privacy: Its Constitutional Dimensions .--Roe v. Wade and its progeny could have had significant effect outside the abortion area in the general area of personal liberties, inasmuch as the revitalization of substantive due process in the noneconomic regulation area, overlaid with the compelling state interest test, could call into question many governmental restraints upon the person. Roe's emphasis upon the privacy rationale seemed to presage an active judicial role in defining and protecting the interests of persons ''to be let alone.'' Those developments have not occurred, however, and the cases reflect the intention of the Court to curb the expansion of any doctrinal ramifications flowing beyond the abortion cases.

Privacy has in a number of cases been identified as a core value of the Bill of Rights, 250 but it was not until Griswold v. Connecticut 251 that an independent right of privacy, derived from the confluence of several provisions of the Bill of Rights or discovered in the ''penumbras'' of these provisions, was expounded by the Court and actually used to strike down a governmental restraint. The abortion cases extended Griswold many degrees in several respects. First, the cases removed any lingering possibility that the right is a marital one that depends upon that relationship. 252 Second, the right of privacy was denominated a liberty which found its source and its protection in the due process clause of the Fourteenth Amendment. 253 Third, by designating the right as a ''fundamental'' right, the Court required a governmental restraint to be justified by a ''compelling state interest.'' Necessary to assessment of the effect of this development is a close analysis of the limits of the right thus protected as well as of its contents.

''The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 - 42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453 -54; id. at 460, 463-65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.'' 254 In the pornography cases decided later in the same Term, the Court denied the existence of any privacy right of customers to view unprotected material in commercial establishments, repeating the above descriptive language from Roe, and saying further: ''the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.'' 255

What is apparent from the Court's approach in these cases is that its concept of privacy is descriptive rather than analytical, making difficult an assessment of the potential of the doctrine. Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences. 256 Governmental commands to do or not to do something may well implicate one or the other or both of these aspects, and judicial decision about the validity of such governmental commands must necessarily be informed by use of an analytical framework balancing the governmental interests against the individual interests in maintaining freedom in one or both aspects of privacy. That framework cannot now be constructed on the basis of the Court's decided cases.

Griswold v. Connecticut, 257 voiding a state statute proscribing the use of contraceptives, seems primarily to be based upon a judicial concept of privacy flowing from the first aspect of privacy described above. That is, the predominant concern flowing through the several opinions is the threat of forced disclosure about the private and intimate lives of persons through the pervasive surveillance and investigative efforts that would be needed to enforce such a law; moreover, the concern was not limited to the outward pressures upon the confines of such provisions as the Fourth Amendment's search and seizure clause, but extended to techniques that would have been within the range of permissible investigation. Subsequent cases, however, have returned to Fourth and Fifth Amendment principles to regulate official invasions of privacy. 258

For example, in United States v. Miller, 259 the Court evaluated in Fourth Amendment terms the right of privacy of depositors in restricting Government access to their cancelled checks maintained by the bank as required by the Bank Secrecy Act. The cancelled checks, the Court held, were business records of the bank in which the depositors had no expectation of privacy and therefore no Fourth Amendment standing to challenge government legal process directed to the bank, and this status was unchanged by the fact that the banks kept the records under government mandate in the first place. And in Fisher v. United States, 260 the Court denied that the Fifth Amendment's self-incrimination clause operated in any way to prevent the IRS from obtaining by summons income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self-incrimination. ''[T]he Court has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self- incrimination of some sort.'' 261 Further, ''[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy--a word not mentioned in its text and a concept directly addressed in the Fourth Amendment.'' 262 The First Amendment itself affords some limitation upon governmental acquisition of information but here again the gravamen is a violation of speech or association or the like concomitant with exposure of personal information, and not exposure itself. 263

A cryptic opinion in Whalen v. Roe 264 may indicate the Court's willingness to recognize privacy interests as independent constitutional rights. At issue was a state's pervasive regulation of prescription drugs that could be abused, and the centralized recordkeeping through computers of all such prescriptions identifying the patients. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to ''pose a sufficiently grievous threat to either interest to establish a constitutional violation.'' 265

Not the method of enforcement but the fact of enforcement was the issue in Roe and Doe. That is, the power of the State to deny women all access to abortions, the power to proscribe effectuation of the will and desire of women to terminate pregnancy, was at issue. Because the Court determined that the will and desire constituted a protected ''liberty,'' the State was required to justify its proscription by a compelling interest. Once the question of the personhood of the fetus was resolved, the Court confronted in effect only two asserted state interests. Protecting the health of the mother was recognized as a valid interest, the Court thereby departing from a laissez faire ''free will'' approach to individual autonomy. A state interest in morality was mentioned by the Court, not because the State had raised it, but simply to defer deciding it; however, the noted morality issue involved not the morality of abortion, but instead the promotion of sexual morality through making abortion unavailable. 266

Stanley v. Georgia, 267 holding that government may not make private possession of obscene materials for private use a crime, approached a judicial recognition of the autonomy aspect of privacy. True it is that the possession there was in Stanley's home, a fact heavily relied on by the Court, but the police had lawfully invaded his privacy upon the authority of a valid warrant and a subsidiary Fourth Amendment issue that was available for decision was passed over in favor of a broader resolution. Inasmuch as the materials were obscene, they were outside the scope of First Amendment protection. But the Court premised its decision upon one's protected right to receive what information and ideas he wished and upon one's protected ''right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.'' 268 These rights were held superior to the interests Georgia asserted to override them. That is, first, the State was held to have no authority to protect an individual's mind from the effects of obscenity, to promote the moral content of one's thoughts. Second, the State's assertion that exposure to obscenity may lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.

Stanley was quickly restricted to its facts, to possession of pornography in the home. 269 But in its important reconsideration of and reaffirmation of governmental interests in the control of pornography, the Court went beyond this restriction and recognized governmental interests that included the promotion of public morality, protection of the individual's psychological health, and improving the quality of life. ''It is argued that individual 'free will' must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice--those in politics, religion, and expression of ideas--are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.'' Furthermore, continued the Court: ''Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as 'wrong' or 'sinful.' The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States' 'right . . . to maintain a decent society.''' 270

Stanley was further distinguished in Bowers v. Hardwick as being ''firmly grounded in the First Amendment.'' 271 Thus, the Court held in Bowers, there is no protected right to engage in homosexual sodomy in the privacy of the home, and Stanley did not implicitly create protection for ''voluntary sexual conduct [in the home] between consenting adults.'' 272

Evidently, then, the fundamental right of privacy that is protected by the due process clause is one functionally related to ''family, marriage, motherhood, procreation, and child rearing.'' 273 Even so limited, the concept can have numerous significant aspects occasioning major constitutional decisions. Thus, in Carey v. Population Services International, 274 the Griswold-Baird line of cases was significantly extended so as to make the ''decision whether or not to beget or bear a child'' a ''constitutionally protected right of privacy'' interest that government may not forbid or burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests. This ''constitutional protection of individual autonomy in matters of childbearing'' led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. 275 The limitation of the number of outlets to adults ''imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so'' and was unjustified by any interest put forward by the State. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve ''any significant state interest . . . that is not present in the case of an adult.'' This test is ''apparently less rigorous'' than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The at tempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors' sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity. 276

In Bowers v. Hardwick, 277 the Court by 5-4 vote roundly rejected the suggestion that the privacy cases protecting ''family, marriage, or procreation'' extend any protection for private consensual homosexual sodomy, 278 and also rejected the more comprehensive claim that the cases ''stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.'' 279 Moreover, the Court refused to create any such fundamental right. Justice White's opinion for the Court in Hardwick sounded the same opposition to ''announcing rights not readily identifiable in the Constitution's text'' that underlay his dissents in the abortion cases. 280 In addition, the Court concluded that rationales relied upon in the earlier privacy cases do not extend ''a fundamental right to homosexuals to engage in acts of consensual sodomy.'' 281 Heavy reliance was placed on the fact that prohibitions on sodomy have ''ancient roots,'' and on the fact that half of the states still prohibit the practices. 282 The privacy of the home does not immunize all behavior from state regulation, and the Court was ''unwilling to start down [the] road'' of im munizing ''voluntary sexual conduct between consenting adults.'' 283 Justice Blackmun's dissent was critical of the Court's phrasing of the issue as one of homosexual sodomy, 284 and asserted that the basic issue was the individual's privacy right ''to be let alone.'' The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy. 285

Similarly, the extent to which governmental regulation of the sexual activities of minors is subject to constitutional scrutiny is of great and continuing importance. 286 Analysis of these questions is hampered because the Court has not told us what about the particular facets of human relationships--marriage, family, procreation--gives rise to a protected liberty and what does not, and how indeed these factors vary significantly enough from other human relationships to result in differing constitutional treatment. The Court's observation in the abortion cases ''that only personal rights that can be deemed 'fundamental' are included in this guarantee of personal privacy,'' occasioning justification by a ''compelling'' interest, 287 little elucidates the answers inasmuch as in the same Term the Court significantly restricted its equal protection doctrine of ''fundamental'' interests--''compelling'' interest justification by holding that the ''key'' to discovering whether an interest or a relationship is a ''fundamental'' one is whether it is ''explicitly or implicitly guaranteed by the Constitution.'' 288

Whether an independent, discrete concept of privacy, in either of its major aspects, emerges from developing judicial doctrines is largely problematical. There appears to be a tendency to designate as a right of privacy a right or interest which extensions of precedent or applications of logical analysis have led the Court to conclude to protect. Because this protection is now settled to be a ''liberty'' which the due process clause includes, the analytical validity of denominating the particular right or interest as an element of privacy rather than as an element of ''liberty'' seems open to question.

Family Relationships .--While the ''privacy'' basis of autonomy seems to be definitionally based, the Court's drawing on the line of cases since Meyer and Pierce 289 has ''established that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.'' 290 Recognition of the protected ''liberty'' of the familial relationship affords the Court a principled and doctrinal basis of review of governmental regulations that adversely impact upon the ability to enter into the relationship, to maintain it, to terminate it, and to resolve conflicts within the relationship. This liberty, unlike the interest in property which has its source in statutory law, springs from the base of ''intrinsic human rights, as they have been understood in 'this Nation's history and tradition.''' 291 Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial scrutiny, although ''reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.'' 292 Recent decisions cast light in all areas of the family relationship.

Because the right to marry is a fundamental right protected by the due process clause, 293 a state may not deny the right to marry to someone who has failed to meet a child support obligation, there being no legitimate state interest compelling enough to justify the prohibition. 294 There is a constitutional right to live together as a family, 295 one not limited to the nuclear family. Thus, a city ordinance which zoned for single family occupancy and so defined ''family'' as to bar extended family relationships was found to violate the due process clause as applied to prevent a grandmother from having in her household two grandchildren of different children. 296 And the concept of ''family'' may extend beyond the biological, blood relationship of extended families to the situation of foster families, although the Court has acknowledged that such a claim to constitutionally protected liberty interests raises complex and novel questions. 297 In the conflict between natural and foster families, other difficult questions inhere and it may well be that a properly constituted process under state law of determining the best interests of the child will be deferred to. 298 On the other hand, the Court has held, the presumption of legitimacy accorded to a child born to a married woman living with her husband is valid even to defeat the right of the child's biological father to establish paternity and visitation rights. 299

The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children's rights. 300

Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment .--Potentially a major development in substantive due process is the formulation of a liberty right of those retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public institutions. The States pursuant to their parens patriae power have a substantial interest in institutionalizing persons in need of care, both for their own protection and for the protection of others. 301 Each individual, on the other hand, has a due process protected interest in freedom from confinement and personal restraint; an interest in reducing the degree of confinement continues even for those individuals who are properly committed. 302 Little controversy has attended the gradual accretion of case law, now confirmed by the Supreme Court, that due process guarantees freedom from undue physical restraint and from unsafe conditions of confinement. 303 Whether it also guarantees a considerable right to treatment, to ''habilitation,'' 304 is the focus of the cases now being litigated, and while the right has been strongly recognized by a number of influential lower court decisions 305 its treatment in the Supreme Court is as yet tentative. Thus, Youngberg v. Romeo recognized a liberty right to ''minimally adequate or reasonable training to ensure safety and freedom from undue restraint.'' 306 While the lower court had passed upon and agreed with plaintiff's theory of entitlement to ''such treatment as will afford a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as [his] capacities permit,'' 307 the Supreme Court thought that before it plaintiff had reduced his theory to one of ''training related to safety and freedom from restraint.'' 308 But the Court's concern for federalism, its reluctance to approve judicial activism in supervising institutions, its recognition that budgetary constraints interfered with state provision of services caused it to require the lower federal courts to defer to professional decisionmaking in determining what care was adequate. Professional decisions are presumptively valid and liability can be imposed ''only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.'' 309 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures. 310

Still other issues await plumbing. The whole area of the rights of committed individuals will likely be explored under a sub stantive and procedural due process analysis. 311 Additionally, federal legislation is becoming extensive, 312 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests which the due process clause protects. 313

''Right to Die'' .--In Cruzan v. Director, Missouri Dep't of Health, 314 the Court upheld Missouri's requirement that, before nutrition and hydration may be withdrawn from a person in a persistent vegetative state, it must be demonstrated by ''clear and convincing evidence'' that such action is consistent with the patient's previously manifested wishes. The Due Process Clause does not require that the state rely on the judgment of the family, the guardian, or ''anyone but the patient herself'' in making this decision, the Court concluded. 315 Thus, in the absence of clear and convincing evidence that the patient herself had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration. ''A State is entitled to guard against potential abuses'' that can occur if family members do not protect a patient's best interests, and ''may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life to be weighed against the . . . interests of the individual.'' 316

The Court's opinion in Cruzan ''assume[d]'' that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. 317 More important, however, a majority of Justices separately declared that such a liberty interest exists. 318 Thus, the Court appears committed to the position that the right to refuse nutrition and hydration is subsumed in the broader right to refuse medical treatment. Also blurred in the Court's analysis was any distinction between terminally ill patients and those whose condition has stabilized; there was testimony that the patient in Cruzan could be kept ''alive'' for about 30 years if nutrition and hydration were continued.

SECTION 1. RIGHTS GUARANTEED: PROCEDURAL DUE PROCESS--CIVIL

Some General Criteria

What due process of law means in the procedural context depends on the circumstances. It varies with the subject matter and the necessities of the situation. Due process of law is a process which, following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law. 1

Ancient Use and Uniformity .--The requirements of due process may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statutory law of England during colonial times, and not unsuited to the civil and political conditions in this country. A process of law not otherwise forbidden may be taken to be due process of law if it has been sanctioned by settled usage both in England and in this country. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. 2

Equality .--If due process is to be secured, the laws must operate alike upon all and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant has the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. 3

Due Process, Judicial Process, and Separation of Powers .--Due process of law does not always mean a proceeding in court. 4 Proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, nor are administrative and executive proceedings, yet their validity is not thereby impaired. 5 Moreover, the due process clause does not require de novo judicial review of the factual conclusions of state regulatory agencies. 6

Nor does the Fourteenth Amendment prohibit a State from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. For example, state statutes vesting in a parole board certain judicial functions, 7 or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, 8 or vesting in a probate court authority to appoint park commissioners and establish park districts 9 are not in conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State shall be kept altogether distinct and separate, or whether they should in some particulars be merged, is for the determination of the State. 10

Footnotes

[Footnote 250] E.g., the Fourth Amendment.

[Footnote 251] 381 U.S. 479 (1965).

[Footnote 252] In Eisenstadt v. Baird, 405 U.S. 438 (1972), the court had declined to extend the Griswold principle to the unmarried on privacy grounds, relying on an equal protection analysis instead.

[Footnote 253] Roe v. Wade, 410 U.S. 113, 153 (1973). See id. at 167-71 (Justice Stewart concurring). Justice Douglas continued to deny that substantive due process is the basis of the decisions. Doe v. Bolton, 410 U.S. 179, 209 , 212 n.4 (1973) (concurring).

[Footnote 254] Roe v. Wade, 410 U.S. 113, 152 (1973).

[Footnote 255] Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973).

[Footnote 256] Whalen v. Roe, 429 U.S. 589, 598 -600 (1977).

[Footnote 257] 381 U.S. 479 (1965).

[Footnote 258] E.g., California Bankers Ass'n v. Schultz, 416 U.S. 21 (1974). See also Laird v. Tatum, 408 U.S. 1 (1972); United States v. United States District Court, 407 U.S. 297 (1972); United States v. Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

[Footnote 259] 425 U.S. 435 (1976). See also Fisher v. United States, 425 U.S. 391, 401 (1976); Paul v. Davis, 424 U.S. 693, 712 -13 (1976); United States v. Bisceglia, 420 U.S. 141 (1975).

[Footnote 260] 425 U.S. 391 (1976).

[Footnote 261] Id. at 399.

[Footnote 262] Id. at 401.

[Footnote 263] See Buckley v. Valeo, 424 U.S. 1, 60 -82 (1976); Whalen v. Roe, 429 U.S. 589, 601 n.27, 604 n.32 (1977); United States v. Miller, 425 U.S. 435, 444 n.6 (1976). The Court continues to reserve the question of the ''[s]pecial problems of privacy which might be presented by subpoena of a personal diary.'' Fisher v. United States, 425 U.S. 391, 401 n.7 (1976).

[Footnote 264] 429 U.S. 589 (1977).

[Footnote 265] Id. at 598-604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure ''arguably has its roots in the Constitution,'' at least ''in some circumstances,'' the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court's careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455 -65 (1977), but note the dissents. Id. at 504, 525-36 (Chief Justice Burger), and 545 n.1 (Justice Rehnquist).

[Footnote 266] Roe v. Wade, 410 U.S. 113, 148 (1972). Additionally, if the purpose of the statute was to deter illicit sexual conduct, the law was overbroad since it included both unmarried and married women. This morality rationale also fell afoul of overinclusion and underinclusion in Eisenstadt v. Baird, 405 U.S. 438, 477 -50 (1972).

[Footnote 267] 394 U.S. 557 (1969).

[Footnote 268] Id. at 564-65.

[Footnote 269] United States v. Reidel, 402 U.S. 351, 354 -56 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 375 -76 (1971).

[Footnote 270] Paris Adult Theatre v. Slaton, 413 U.S. 49, 57 -63, 63-64, 68-69 (1973); and see id. at 68 n.15.

[Footnote 271] 478 U.S. 186, 195 (1986).

[Footnote 272] 478 U.S. at 195 -96. Dissenting Justice Blackmun challenged the Court's characterization of Stanley, suggesting that it had rested as much on the Fourth as on the First Amendment, and that ''the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution's protection of privacy.'' Id. at at 207-08.

[Footnote 273] Id. at 66 n.13. See also Paul v. Davis, 424 U.S. 693, 713 (1976).

[Footnote 274] 431 U.S. 678 (1977).

[Footnote 275] Id. at 684-91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court's general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented.

[Footnote 276] Id. at 691-99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717.

[Footnote 277] 478 U.S. 186 (1986). The Court's opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O'Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion.

[Footnote 278] ''[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.'' 478 U.S. at 190 -91.

[Footnote 279] Id. at 191. The Court asserted that Carey v. Population Services Int'l, 431 U.S. 678, 694 n.17 (1977), which had reserved decision on the issue, had established that the privacy right ''did not reach so far.''

[Footnote 280] 478 U.S. at 191 .

[Footnote 281] In the Court's view, homosexual sodomy is neither a fundamental liberty ''implicit in the concept of ordered liberty'' nor is it ''deeply rooted in this Nation's history and tradition.'' Id. at at 191-92.

[Footnote 282] Id. Chief Justice Burger's brief concurring opinion amplified on this theme, concluding that constitutional protection for ''the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.'' Id. at at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id.

[Footnote 283] The Court voiced concern that ''it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.'' Id. at 195-96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217-18) suggested that these crimes are readily distinguishable.

[Footnote 284] Id. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See Id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomous acts by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219.

[Footnote 285] Id. at 204-06.

[Footnote 286] The Court reserved this question in Carey, 431 U.S., 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.

[Footnote 287] Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, supra, 431 U.S. 684 -85.

[Footnote 288] San Antonio School District v. Rodriguez, 411 U.S. 1, 33 -34 (1973). That this restriction is not holding with respect to equal protection analysis or due process analysis can be discerned easily. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

[Footnote 289] Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928).

[Footnote 290] Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Continuing the limitation of the right of privacy to family-related activities is Bowers v. Hardwick, 478 U.S. 186 (1986).

[Footnote 291] Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977).

[Footnote 292] Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

[Footnote 293] Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639 -40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383 -87 (1978).

[Footnote 294] Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of the Court deemed the statute to fail under equal protection, whereas Justices Stewart and Powell found the due process clause to be violated. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977).

[Footnote 295] ''If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on 'the private realm of family life which the state cannot enter.''' Smith v. Organization of Foster Families, 431 U.S. 816, 862 -63 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

[Footnote 296] Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at 513.

[Footnote 297] Smith v. Organization of Foster Families, 431 U.S. 816 (1977). The natural family, the Court observed, did not have its source in statutory law, whereas the ties that develop between foster parent and foster child have their origins in an arrangement which the State brought about. But some liberty interests do arise from positive law, although the expectations and entitlements are thereby limited as well by state law. And such a liberty interest may not be recognized without derogating from the substantive liberty interests of the natural parents. Thus, the interest of foster parents must be quite limited and attenuated, but Smith does not define what it is. Id. at 842-47.

[Footnote 298] See Quilloin v. Walcott, 434 U.S. 246 (1978).

[Footnote 299] Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O'Connor, Kennedy) because he believed that the statute at issue adequately protected that interest.

[Footnote 300] The clearest conflict presented to date raised the issue of giving a veto to parents over their minor children's right to have an abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness).

[Footnote 301] These principles have no application to persons not held in custody by the state. DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker).

[Footnote 302] Youngberg v. Romeo, 457 U.S. 307, 314 -16 (1982). See Jackson v. Indiana, 406 U.S. 715 (1972); O'Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones, 445 U.S. 480, 491 -94 (1980).

[Footnote 303] Youngberg v. Romeo, 457 U.S. 307, 314 -316 (1982). Thus, personal security constitutes a ''historic liberty interest'' protected substantively by the due process clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) (''Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental actions'').

[Footnote 304] ''The word 'habilitation' is commonly used to refer to programs for the mentally retarded because mental retardation is . . . a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.'' Youngberg v. Romeo, 457 U.S. 307, 309 n.1 (1982) (quoting amicus brief for American Psychiatric Association).

[Footnote 305] In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court had said that ''due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.'' Reasoning that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp. 1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff'd in part, reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 422 U.S. 563 (1975).

[Footnote 306] Youngberg v. Romeo, 457 U.S. 307, 319 (1982).

[Footnote 307] Id. at 318 n.23.

[Footnote 308] Id. at 317-18. Concurring, Justices Blackmun, Brennan, and O'Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with and probably more. Id. at 325. Chief Justice Burger rejected any protected interest in training. Id. at 329. The Court had also avoided a decision on a right to treatment in O'Connor v. Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision recognizing the right and thus depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days later the Court denied certiorari to another panel decision from the same circuit relying on its Donaldson decision to establish such a right, leaving the principle alive in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S. 364, 373 (1986) (dictum that person civilly committed as ''sexually dangerous person'' might be entitled to protection under the self- incrimination clause if he could show that his confinement ''is essentially identical to that imposed upon felons with no need for psychiatric care'').

[Footnote 309] Id. at 323.

[Footnote 310] E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create problems with respect to injunctive relief as well. Cf. New York State Ass'n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). It should be noted that the Supreme Court has limited the injunctive powers of the federal courts in similar situations also.

[Footnote 311] See Developments in the Law--Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982), the Court had before it the issue of the due process right of committed mental patients at state hospitals to refuse administration of antipsychotic drugs. An intervening decision of the State's highest court had measurably strengthened the patients' rights under both state and federal law and the Court remanded for reconsideration in light of the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981).

[Footnote 312] Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94-103, 89 Stat. 486, as amended, 42 U.S.C. Sec. Sec. 6000 et seq., as to which see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981); Mental Health Systems Act, 94 Stat. 1565, 42 U.S.C. Sec. 9401 et seq.

[Footnote 313] See, e.g., Mills v. Rogers, 457 U.S. 291, 299 -300 (1982). And see infra, pp. 1723-32 (procedural due process).

[Footnote 314] 497 U.S. 261 (1990).

[Footnote 315] Id. at 286.

[Footnote 316] Id. at 281-82.

[Footnote 317] Id. at 279.

[Footnote 318] See 497 U.S. at 287 (O'Connor, concurring); id. at 304-05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting).

[Footnote 1] Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado v. California, 110 U.S. 516, 537 (1884).

[Footnote 2] Brown v. New Jersey, 175 U.S. 172, 175 (1899); Hurtado v. California, 110 U.S. 516, 529 (1884); Twining v. New Jersey, 211 U.S. 78, 101 (1908); Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 244 (1944).

[Footnote 3] Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).

[Footnote 4] Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

[Footnote 5] McMillen v. Anderson, 95 U.S. 37, 41 (1877).

[Footnote 6] Railroad Comm'n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm'n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony).

[Footnote 7] Dreyer v. Illinois, 187 U.S. 71, 83 -84 (1902).

[Footnote 8] New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 , (1905).

[Footnote 9] Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 (1930).

[Footnote 10] Carfer v. Caldwell, 200 U.S. 293, 297 (1906).