[Cite as Poe v. Ullman, 367 U.S. 497, 515, 542-543 (1961). Note: This decision regards a Connecticut law criminalizing contraceptive devices and information. The majority decision chose not to decide the matter. In dissenting opinions it was said concerning the Fourteenth Amendment, "The first eight Amendments to the Constitution have been made applicable to the States only in part." (Douglass, J., P. 515) "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on." (Harlan, J., P. 543). Listing the Second Amendment among individual rights is similar to Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897) and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
[Poe v. Ullman continued
Return to pages 497-508 (Majority opinion).
Return to pages 509-541(Dissenting opinions).
Currently at pages 542-543.
Proceed to pages 544-555]
[paragraph continued from previous page] Twining v. New Jersey, 211 U.S. 78; Palko v. Connecticut, 302 U.S. 319. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1; Downes v. Bidwell, 182 U.S. 244; Hawaii v. Mankichi, 190 U.S. 197; Balzac v. Porto Rico, 258 U.S. 298; Farrington v. Tokushige, 273 U.S. 284; Bolling v. Sharpe, 347 U.S. 497.
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of (p.543)history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. Louisiana, 165 U.S. 578; Holden v. Hardy, 169 U.S. 366; Booth v. Illinois, 184 U.S. 425; Nebbia v. New York, 291 U.S. 502; Skinner v. Oklahoma, 316 U.S. 535, 544 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. Oklahoma, supra; Bolling v. Sharpe, supra.
As was said in Meyer v. Nebraska, 262 U.S. 390, 399, "this Court has not attempted to define with exactness the liberty thus guaranteed .... Without doubt, it denotes not merely freedom from bodily restraint ...." Thus, for instance, when in that case and in Pierce v. Society of Sisters, 268 U.S. 510, the Court struck down laws which sought not to require what children must learn in schools, but to prescribe, in the first case, what they must not learn, and in the second, where they must acquire their learning, I do not think it was wrong to put those decisions on "the right of the individual to ... establish a home and bring up children," Meyer v. Nebraska, ibid., or on the basis that "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction [paragraph continues next page]
[Return to pages 497-508 (Majority opinion).
Return to pages 509-541(Dissenting opinions).
Currently at pages 542-543.
Proceed to pages 544-555]