Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy of "liberty" to the needs of modern people. This Note will explore the Supreme Court's past attempts to bring content to due process "liberty," and will illustrate the difficulties in granting constitutional status to a nonconstitutional interest by tracing the legal development of one such interest, privacy. Finally, the Note will argue for a judicial methodology through which fundamental nonconstitutional interests might gain constitutional status.
James H. Wildman,
The Supreme Court and Fundamental Rights--A Problem of Judicial Method,
23 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol23/iss4/6