Cite as: 521 U. S. 702 (1997)
Souter, J., concurring in judgment
for three things that point to our responsibilities today. The first is Justice Harlan's respect for the tradition of substantive due process review itself, and his acknowledgment of the Judiciary's obligation to carry it on. For two centuries American courts, and for much of that time this Court, have thought it necessary to provide some degree of review over the substantive content of legislation under constitutional standards of textual breadth. The obligation was understood before Dred Scott and has continued after the repudiation of Lochner's progeny, most notably on the subjects of segregation in public education, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), interracial marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967), marital privacy and contraception, Carey v. Population Services Int'l, 431 U. S. 678, 684-691 (1977); Griswold v. Connecticut, supra, at 481-486, abortion, Planned Parenthood of Southeastern Pa. v. Casey, supra, at 849, 869-879 ( joint opinion of O'Connor, Kennedy, and Souter, JJ.); Roe v. Wade, 410 U. S. 113, 152-166 (1973), personal control of medical treatment, Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 287-289 (1990) (O'Connor, J., concurring); id., at 302 (Brennan, J., dissenting); id., at 331 (Stevens, J., dissenting); see also id., at 278 (majority opinion), and physical confinement, Foucha v. Louisiana, 504 U. S. 71, 80-83 (1992). This enduring tradition of American constitutional practice is, in Justice Harlan's view, nothing more than what is required by the judicial authority and obligation to construe constitutional text and review legislation for conformity to that text. See Marbury v. Madison, 1 Cranch 137 (1803). Like many judges who preceded him and many who followed, he found it impossible to construe the text of due process without recognizing substantive, and not merely procedural, limitations. "Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in ap-
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