Cite as: 521 U. S. 702 (1997)
Souter, J., concurring in judgment
pect of 'liberty' . . . [is] subjec[t] to 'strict scrutiny' ") (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S., at 541); 8 Reno v. Flores, 507 U. S. 292, 301-302 (1993) (reaffirming that due process "forbids the government to infringe certain 'fundamental' liberty interests . . . unless the infringement is narrowly tailored to serve a compelling state interest").9
This approach calls for a court to assess the relative "weights" or dignities of the contending interests, and to this extent the judicial method is familiar to the common law. Common-law method is subject, however, to two important constraints in the hands of a court engaged in substantive due process review. First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by "the traditions from which [the Nation] developed," or revealed by contrast with "the traditions from which it broke." Poe, 367 U. S., at 542 (Harlan, J., dissenting). " 'We may not draw on our merely personal and private notions and disregard the limits . . . derived from
8 We have made it plain, of course, that not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest. See Casey, 505 U. S., at 872-876 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Carey v. Population Services Int'l, 431 U. S. 678, 685-686 (1977) ("[A]n individual's [constitutionally protected] liberty to make choices regarding contraception does not . . . automatically invalidate every state regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not [even] infringe protected individual choices"). But a state law that creates a "substantial obstacle," Casey, supra, at 877, for the exercise of a fundamental liberty interest requires a commensurably substantial justification in order to place the legislation within the realm of the reasonable.
9 Justice Harlan thus recognized just what the Court today assumes, that by insisting on a threshold requirement that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification is required, the Court ensures that not every case will require the "complex balancing" that heightened scrutiny entails. See ante, at 722.
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