Michael H. v. Gerald D.

How does the Court know which "liberty" interests are fundamental, and which are not, for purposes of SDP?

Should this issue depend upon the subjective preferences of each Justice? Would this be consistent with the Court acting, not as a ruler making law, but as a Court applying law?

The Court has rejected a subjective "I like liberty X, but not liberty Y" test in favor of an historical test--whether a particular liberty is fundamental depends upon whether it is one that has been "traditionally protected by our society" or is so deeply "rooted in the traditions and conscience of our people as to be ranked as fundamental." 

So the Court rejects a purely subjective test in favor of an historical test that seeks to determine the historical pedigree of a particular liberty. Is my liberty to drive my car as fast as I please deeply rooted in the history and traditions of our Nation? Is my liberty to contract with my employees without governmental restrictions deeply rooted in history and tradition?

But here is the question--when sending the researchers off to read American history, how should we frame the question presented for their research?

Should we phrase it at a specific level of generality ("is the right to to drive a car 150 MPH in a school zone one that is deeply rooted in American history and tradition?")

Or should we phrase it at a higher level of generality, one that is broad enough to include the liberty "not to conform" ("is the right to travel one that is deeply rooted in American history and tradition?")

Remember, I am charged with speeding in a school zone and I am claiming that the speeding laws are unconstitutional under the 14th Amendment and SDP. Which of the two questions above would likely produce the most accurate historical answer? Which would give the Court the most room to subjectively protect my liberty to drive as I please?

Now back to Michael H.

Scalia says that in researching history and tradition we should use "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Thus, for Scalia the question to research is the historical pedigree "regarding the rights of a natural father of a child adulterously conceived."  Have American history and tradition looked with favor upon the claims of adulterous natural sires to claim parental rights against the marital privacy interests of a wife and her husband?

Brennan says use a higher level of generality and ask "whether parenthood is an interest" that history and tradition have cherished.  He wants to protect the "freedom not to conform."  How would our historical research come out under Brennan's question presented?

Does it depend upon how well we do our job of researching history and tradition? If we ask whether American history and tradition have cherished a broad right of parenthood, broad enough to include the rights of biological fathers who impregnate married women, do we come out with a different answer than under Scalia's question presented?

Aren't there really two liberty interests at stake here--(1) Carole and Gerald's right to marital privacy, their right to conform if you will, and to be protected against those, like Michael, who wish to use litigation to break down the doors of their sacred marital home and invade their marital privacy; and (2) Michael's right not to conform, his right to invade C & G's marriage once through adultery and a second time via this litigation?

Why should we think the Constitution prefers Michael's right not to conform over C & G's right to conform?

Indeed, one way to look at this case is to recognize that the U.S. Constitution says nothing about either of these rights, and that the California Legislature has chosen to protect C & G's right to marital privacy against Michael's right to interfere with their family life. Indeed, the California statute is protecting a true 9th Amendment unenumerated right, if we view the 9th Amendment as a federalism amendment intended to make clear that the people retain rights created by state laws and under state constitutions!