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[Cite as Moore v. City of East Cleveland, 431 U.S. 494, 502, 542-543 (1976). Note: This decision concerns a housing ordinance limiting the number and relation of residents. The Court held the ordinance infringed rights federally protected from local action by the Fourteenth Amendment. The majority opinion quoted Poe at 543 where Justice Harlan mentioned the right to arms amongst other rights of the first eight amendments as examples of "liberty". (P. 502) Justice White quoted the same passage in his dissent (P. 542-543) and referred to the majority's quotation for the proposition that it "most accurately reflects the thrust of prior decisions [concerning] a wide range of freedoms". (P. 545) Justice Powell's majority opinion referred to Justice White's reference (to the majority quotation of Harlan in Poe) for the point that this very passage goes further and "expressely points to history and tradition as the source for" this conception of rights. (P. 503-504 n.12) This decision is similar to Griswold v. Connecticut, 381 U.S. 479, 488, 490-493 (1965) (repeated references to the first eight amendments to the Constitution in similar terms of individual right) and Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897) (cited in Miller).]

[Moore v. City of Cleveland continued
Return to pages 494-500.
Currently at pages 501-502.
Proceed to pages 503-540
Proceed to pages 541-552 (White dissent)]

[paragraph continued from previous page] of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of child rearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.

Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently:

"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.[501.8] No formula could serve as a substitute, in this area, for judgment and restraint.(p.502)

"... [T]he 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, ... 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." Poe v. Ullman, supra, at 542-543 (dissenting opinion).

Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court.[502.9] That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary--the boundary of the nuclear family.

[Return to pages 494-500.
Currently at pages 501-502.
Proceed to pages 503-540
Proceed to pages 541-552 (White dissent)]