A. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amend. IX.

* Is this expressio unius exclusio alterius est?

* or is it an affirmative grant of power to the Supreme Court to determine and define the Aretained rights@?

B. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people. Amend. X.

C. You should brief Griswold v. Connecticut for your own notes.

Crime to assist counsel another to do so.

Applies to married or unarried.

Penalty: fine or nlt $50; jail not less than 60 days; or both

Member of Planned Parenthood and a doctor fined $100 each

Example: The Fifth Amendment requires that one may not be deprived of life, liberty, or property without due process.

1) HUGO BLACK: Specific Incorporation. In Griswold He argues that only those liberties expressly listed in the Bill of Rights may be incorporated into the 14th Amend. and applied to the state and local governments.

2) JOHN HARLAN: Fundamental Rights Analysis. He argues that the 14 th Amendment has substance, and that >liberty= is a term that judges can define and give substantive meaning to, in addition to the Bill of Rights.

1) Meyer v. Nebraska (1923): Supreme Court struck down a law mandating that private schools do instruction only in English language and barring instruction in German language. Held: Aliberty@ means the fundamental right of a family to control a child=s education.

2) Pierce v. Society of Sisters (1925): Supreme Court strikes down a law mandating that all children attend public schools, using same reasoning as Meyer case.

3) Court Packing, New Deal (late 1930=s): Court backs away from, and ultimately REPUDIATES Lochner, but Meyer and Pierce are never overruled.

In the first third of the 20th century, the Court often reviewed the substance of legislation and used the Due Process Clause to invalidate economic and social regulations. The basic rationale was that the legislation unreasonably interfered with Aliberty@ and Aproperty@ interests protected by the Due Process Clause. The Justices made their own personal judgments as to whether the means used by the regulation were reasonably related to a legitimate end.

Example: Case challenging New York law that limited the working hours of bakery employees to no more than 60 hours in a week or ten hours per day. The law was a safety statute to protect workers in what the legislature deemed to be an unsafe work environment. The conservative pre-New Deal Supreme Court found that the law interfered with the liberty of bakery workers and owners to enter into contracts to sell or purchase labor on any terms they might set. The opinion for the divided Court, written by Justice Peckham, ruled that the legislature had no authority in that area. AThere is no reasonable ground for interfering with the liberty of person of the right of free contract, by determining hours of labor, in the occupation of a baker,@ the Court wrote. (Lochner v. New York (1905)).

Modern approach: Since the mid-1930's, the Court has adopted a different approach; it defers to legislative judgments in respect to economic and social regulations unless they are Ademonstrably arbitrary or irrational.@ (Duke Power Co. V. Carolina Environmental Study Group (1978)). Such laws are presumed valid and will be upheld unless no reasonable state of facts can be conceived to support them, or unless they bear no rational relationship to the end sought- the burden of proof being on the person challenging the law. (United States v. Carolene Products Co. (1938)). The Court will not Aweigh the wisdom@ of such legislation or substitute its own judgment for that of the legislative body. (Ferguson v. Skrupa (1963)).

Since the mid-1960's, the Supreme Court has revived substantive due process review as a means of protecting certain fundamental personal rights not specifically enumerated in the Constitution. If a government regulation impinges upon such a fundamental right, it is subjected to strict scrutiny, the regulation must be found to be necessary to a compelling government interest.

Right to Privacy - Not mentioned in the Constitution. Nevertheless, the Court has recognized that a right of personal privacy, or at least a guarantee of certain areas or zones of privacy is constitutionally protected. This right encompasses the following: