The Constitutional Lynchpin of Liberty in an Age of New Federalism : Replacing Substantive Due Process with the Right to Travel

The Constitutional Lynchpin of Liberty in an Age of New Federalism: Replacing Substantive Due Process with the Right to Travel argues that the federalism revolution waged by the Rehnquist Court may point the way to a more constitutionally sound approach to protecting individual liberty than the substantive due process approach used in the Court's right of privacy decisions.The Framers saw federalism as a primary means by which the Constitution would protect individual liberty. During the 1930s, however, the Court essentially disregarded federalism principles so as to uphold the New Deal agenda. In the wake of this judicial indifference to federalism arose the Court's use of substantive due process as a way of protecting certain individual rights and liberties. But this substantive due process approach has incurred intense criticism ever since its debut in Griswold v. Connecticut. The article asserts that an alternative approach to protecting individual liberty has been revealed in the Court's federalism revolution. It argues that through a focus on the right to travel, courts may be able to achieve the liberty-protecting features of federalism envisioned by the Framers. Thus, the right to travel could become the catch-all protection of individual liberty that substantive due process has been for the past four decades