Cite as: 521 U. S. 702 (1997)
Souter, J., concurring in judgment
The Poe dissent thus reminds us of the nature of review for reasonableness or arbitrariness and the limitations entailed by it. But the opinion cautions against the repetition of past error in another way as well, more by its example than by any particular statement of constitutional method: it reminds us that the process of substantive review by reasoned judgment, Poe, 367 U. S., at 542-544, is one of close criticism going to the details of the opposing interests and to their relationships with the historically recognized principles that lend them weight or value.
Although the Poe dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see id., at 542, 544, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also Casey, 505 U. S., at 849 ("The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment"). When identifying and assessing the competing interests of liberty and authority, for ex-541 (1942)); Poe, supra, at 543 (Harlan, J., dissenting) ("certain interests" must bring "particularly careful scrutiny"); Casey, 505 U. S., at 851 ("protected liberty"); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990) ("constitutionally protected liberty interest"); Youngberg v. Romeo, 457 U. S., at 315 ("liberty interests"), and at times we have also called such an interest a "right" even before balancing it against the government's interest, see, e. g., Roe v. Wade, 410 U. S. 113, 153-154 (1973); Carey v. Population Services Int'l, supra, at 686, 688, and n. 5; Poe, supra, at 541 ("rights 'which are . . . fundamental' ") (quoting Corfield v. Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). Precision in terminology, however, favors reserving the label "right" for instances in which the individual's liberty interest actually trumps the government's countervailing interests; only then does the individual have anything legally enforceable as against the State's attempt at regulation.
769
Page: Index Previous 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 NextLast modified: October 4, 2007