To uphold sterilization of a woman, but then to protect a man's right to procreate is interesting to say the least. From my point of view, it seems to be, in at least some ways, a prime example of the difference in treatment between men and women under the law that still persists to recent times. I am finding this more on my mind as I read the opinions for Dobbs.
Yes; the contrast shows how constitutional protections have often reflected gendered assumptions about whose autonomy matters. And seen against Dobbs, it shows how the Court’s decisions about which rights to protect can end up reinforcing unequal treatment.
It’s striking how Meyer and Pierce connected liberty to education and family decisions, while Skinner highlighted procreation and bodily autonomy. Buck stands out as a reminder that substantive due process can cut both ways depending on how the Court defines liberty.
Yes, exactly. What I think is worth asking next is: what principle should guide the Court so that we don’t get another Buck v. Bell? Is it history, equality, human dignity, something else? The answer really shapes how much trust we put in substantive due process today.
I think it's quite interesting how the Court connected each of these cases to the individual's right to "privacy." I see how these four cases are similar in that each aims to protect some aspect of the individual's life. However, where/what a student learns is substantially different than forced sterilization. I think the implications of these statutes are gravely different, and I find it difficult to comprehend where the Court might have drawn the metaphorical line between issues concerning privacy and those not concenring it.
You’re right to notice how clumsy those early moves were. The truth is, the Court still struggles with where to draw the line. You can see it in abortion, marriage, even end-of-life cases. There’s never been one clear formula for what counts as “private,” which is why the doctrine keeps shifting.
I am confused as to how Carrie Buck's case is an example of substantive due process. Can you go into further detail about this case? It seems like a spectacular overreach of the court's authority-- how did it pass even intermediate scrutiny?
To further clarify: Footnote 4 was more of a suggestion than a binding rule. It didn’t erase Buck on its own, and states kept sterilizing people for years after. It took later cases, like Skinner v. Oklahoma (1942), and a broader cultural shift to finally see forced sterilization as unconstitutional. (And even then, it wasn't done through tiers of scrutiny, but by defining the right at issue as 'the right to procreation'. Some of my posts get at this idea of how the Court *frames* a right; that framing is crucial.)
Yes, it is counterintuitive. I tried to flag exactly that tension here: "substantive due process can liberate, but it can also justify profound harm when guided by prejudice rather than principle.”
Substantive due process gives courts power to decide what counts as “liberty” in the first place. In Buck, the Court accepted eugenics as legitimate social policy and saw Carrie’s right to bodily autonomy as outside constitutional protection. Instead of liberty limiting the state, the Court’s own *prejudice* defined which liberties mattered and which didn’t, turning the doctrine into a tool of harm rather than protection.
As for intermediate scrutiny, that framework didn’t even exist yet. The tiers of scrutiny (strict, intermediate, rational basis) came decades later (introduced conceptually by Carolene Products footnote 4, then developed in equal protection cases). In 1927, the Court wasn’t asking whether sterilization laws survived heightened review. It simply trusted the legislature, except when it *chose*, in other contexts, to define liberty broadly and override state laws.
I found this piece quite interesting, as it lays a clear narrative of how early 20th century cases laid the groundwork for understanding a constitutional right to privacy. The courts understanding of substantive due process worked to expand and restrict liberty, showing how the doctrine has the ability to cause both progress and harm. I now wonder how Buck v. Bell works to complicate modern debates regarding judicial power - mostly when courts are tasked with understanding the unenumerated rights in today's divided society.
I'm seeing another dimension of your question that I didn't catch before - the idea that unenumerated rights reflect the values of the judges, and in our divided times, those values will in some cases be deeply contested.
That’s why substantive due process is such a hot topic right now. It puts judges in the position of deciding which unwritten rights really matter. Those choices often reflect bigger cultural divides, like how we view family, personal freedom, sexuality, or control over our own bodies. When one group sees a right as central to human dignity and another sees it as harmful, it makes the Court’s role feel even more complicated and controversial.
You're right that Buck v Bell raises hard questions about whether judges should have the power to define rights not written in the Constitution. And it warns that when courts defer too much to the state at the expense of marginalized people, liberty can be lost rather than secured.
To uphold sterilization of a woman, but then to protect a man's right to procreate is interesting to say the least. From my point of view, it seems to be, in at least some ways, a prime example of the difference in treatment between men and women under the law that still persists to recent times. I am finding this more on my mind as I read the opinions for Dobbs.
Yes; the contrast shows how constitutional protections have often reflected gendered assumptions about whose autonomy matters. And seen against Dobbs, it shows how the Court’s decisions about which rights to protect can end up reinforcing unequal treatment.
It’s striking how Meyer and Pierce connected liberty to education and family decisions, while Skinner highlighted procreation and bodily autonomy. Buck stands out as a reminder that substantive due process can cut both ways depending on how the Court defines liberty.
Yes, exactly. What I think is worth asking next is: what principle should guide the Court so that we don’t get another Buck v. Bell? Is it history, equality, human dignity, something else? The answer really shapes how much trust we put in substantive due process today.
I think it's quite interesting how the Court connected each of these cases to the individual's right to "privacy." I see how these four cases are similar in that each aims to protect some aspect of the individual's life. However, where/what a student learns is substantially different than forced sterilization. I think the implications of these statutes are gravely different, and I find it difficult to comprehend where the Court might have drawn the metaphorical line between issues concerning privacy and those not concenring it.
You’re right to notice how clumsy those early moves were. The truth is, the Court still struggles with where to draw the line. You can see it in abortion, marriage, even end-of-life cases. There’s never been one clear formula for what counts as “private,” which is why the doctrine keeps shifting.
I am confused as to how Carrie Buck's case is an example of substantive due process. Can you go into further detail about this case? It seems like a spectacular overreach of the court's authority-- how did it pass even intermediate scrutiny?
To further clarify: Footnote 4 was more of a suggestion than a binding rule. It didn’t erase Buck on its own, and states kept sterilizing people for years after. It took later cases, like Skinner v. Oklahoma (1942), and a broader cultural shift to finally see forced sterilization as unconstitutional. (And even then, it wasn't done through tiers of scrutiny, but by defining the right at issue as 'the right to procreation'. Some of my posts get at this idea of how the Court *frames* a right; that framing is crucial.)
Yes, it is counterintuitive. I tried to flag exactly that tension here: "substantive due process can liberate, but it can also justify profound harm when guided by prejudice rather than principle.”
Substantive due process gives courts power to decide what counts as “liberty” in the first place. In Buck, the Court accepted eugenics as legitimate social policy and saw Carrie’s right to bodily autonomy as outside constitutional protection. Instead of liberty limiting the state, the Court’s own *prejudice* defined which liberties mattered and which didn’t, turning the doctrine into a tool of harm rather than protection.
As for intermediate scrutiny, that framework didn’t even exist yet. The tiers of scrutiny (strict, intermediate, rational basis) came decades later (introduced conceptually by Carolene Products footnote 4, then developed in equal protection cases). In 1927, the Court wasn’t asking whether sterilization laws survived heightened review. It simply trusted the legislature, except when it *chose*, in other contexts, to define liberty broadly and override state laws.
I found this piece quite interesting, as it lays a clear narrative of how early 20th century cases laid the groundwork for understanding a constitutional right to privacy. The courts understanding of substantive due process worked to expand and restrict liberty, showing how the doctrine has the ability to cause both progress and harm. I now wonder how Buck v. Bell works to complicate modern debates regarding judicial power - mostly when courts are tasked with understanding the unenumerated rights in today's divided society.
I'm seeing another dimension of your question that I didn't catch before - the idea that unenumerated rights reflect the values of the judges, and in our divided times, those values will in some cases be deeply contested.
That’s why substantive due process is such a hot topic right now. It puts judges in the position of deciding which unwritten rights really matter. Those choices often reflect bigger cultural divides, like how we view family, personal freedom, sexuality, or control over our own bodies. When one group sees a right as central to human dignity and another sees it as harmful, it makes the Court’s role feel even more complicated and controversial.
You're right that Buck v Bell raises hard questions about whether judges should have the power to define rights not written in the Constitution. And it warns that when courts defer too much to the state at the expense of marginalized people, liberty can be lost rather than secured.