Also known as: ordered liberty · implicit in ordered liberty · Palko standard · fundamental rights
Written by attorneys · grounded in primary & secondary sources — see below
A standard for identifying fundamental rights protected under the Due Process Clause. The standard is satisfied when a claimed right is so essential that its denial would undermine liberty and justice.
Ike Ingram wants his child taught in German at a private school. State officials prohibit all instruction in any language other than English. The court holds that the prohibition violates a liberty interest because the right of parents to direct their children's education meets the standard of being implicit in the concept of ordered liberty.
Isla Ireland faces delinquency proceedings in which the state seeks to prove she committed an act that would be a crime if committed by an adult. The court requires proof beyond a reasonable doubt because that standard is implicit in the concept of ordered liberty and therefore protected against state action.
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India Inoue seeks an abortion during the first trimester. State law forbids the procedure except to save the mother's life. The court recognizes the decision as implicit in the concept of ordered liberty and therefore protected by the Due Process Clause.
Ira Irving and his wife obtain contraceptives from a licensed physician. State law criminalizes their use. The court holds that the marital decision to use contraceptives is implicit in the concept of ordered liberty and therefore protected from state interference.
Ilana Isaacs lives with her grandson and great-grandson in a single-family home. City zoning rules limit occupancy to nuclear families only. The court finds that the choice of household composition is implicit in the concept of ordered liberty and therefore protected against arbitrary state restriction.
Isabella Ingram, a private citizen, sues a publisher for a false statement about her professional conduct. The publisher claims First Amendment immunity. The court applies a negligence standard because the reputational interest at stake is implicit in the concept of ordered liberty and therefore entitled to state-law protection.
The two tests are alternative formulations used to identify fundamental rights. A right may satisfy one formulation even if it fails the other. Courts have applied both standards when deciding whether a claimed liberty interest receives heightened protection under the Due Process Clause.
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No. The standard identifies both textual and nontextual rights. Rights not expressly listed in the Constitution can still qualify if they are essential to ordered liberty.
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The right receives substantive due process protection against state infringement. State laws that burden the right are subject to heightened scrutiny rather than mere rational basis review.
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…262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut , 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to…