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.
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.