766
Souter, J., concurring in judgment
serve as a substitute, in this area, for judgment and restraint." Id., at 542.
See also Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion of Powell, J.) ("Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful 'respect for the teachings of history [and] solid recognition of the basic values that underlie our society' ") (quoting Griswold, supra, at 501 (Harlan, J., concurring)).
After the Poe dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e. g., United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) (economic legislation "not . . . unconstitutional unless . . . facts . . . preclude the assumption that it rests upon some rational basis"); see also Poe, supra, at 545, 548 (Harlan, J., dissenting) (referring to usual "presumption of constitutionality" and ordinary test "going merely to the plausibility of [a statute's] underlying rationale"). Such instances are suitably rare. The claims of arbitrariness that mark almost all instances of unenumerated substantive rights are those resting on "certain interests requir[ing] particularly careful scrutiny of the state needs asserted to justify their abridgment[,] [c]f. Skinner v. Oklahoma [ex rel. Williamson, 316 U. S. 535 (1942)]; Bolling v. Sharpe, [347 U. S. 497 (1954)]," id., at 543; that is, interests in liberty sufficiently important to be judged "fundamental," id., at 548; see also id., at 541 (citing Corfield v. Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). In the face of an interest this powerful a State may not rest on threshold rationality or a presumption of constitutionality, but may prevail only on the ground of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted. Poe, supra, at 548 (Harlan, J., dissenting) (an "enactment involv[ing] . . . a most fundamental as-
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