Cite as: 504 U. S. 71 (1992)
Thomas, J., dissenting
ture of commitment bear some reasonable relation to the purpose for which the individual is committed." Ante, at 79 (emphasis added). Later in its opinion, however, the Court states that the Louisiana scheme violates substantive due process not because it is not "reasonably related" to the State's purposes, but instead because its detention provisions are not "sharply focused" or "carefully limited," in contrast to the scheme we upheld in Salerno. Ante, at 81. Does that mean that the same standard of review applies here that we applied in Salerno, and, if so, what is that standard? The Court quite pointedly avoids answering these questions. Similarly, Justice O'Connor does not reveal exactly what standard of review she believes applicable, but appears to advocate a heightened standard heretofore unknown in our case law. Ante, at 87-88 ("It might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if . . . the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness" (emphasis added)).
To the extent the Court invalidates the Louisiana scheme on the ground that it violates some general substantive due process right to "freedom from bodily restraint" that triggers strict scrutiny, it is wrong—and dangerously so. To the extent the Court suggests that Louisiana has violated some more limited right to freedom from indefinite commitment in a mental facility (a right, by the way, never asserted by Foucha in this or any other court) that triggers some unknown standard of review, it is also wrong. I shall discuss these two possibilities in turn.
1
I fully agree with the Court, ante, at 80, and with Justice Kennedy, ante, at 90, that freedom from involuntary confinement is at the heart of the "liberty" protected by the Due Process Clause. But a liberty interest per se is not the same thing as a fundamental right. Whatever the exact scope of
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