Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights

35 Pages Posted: 7 Jul 2009 Last revised: 9 Sep 2016

See all articles by Risa L. Goluboff

Risa L. Goluboff

University of Virginia School of Law

Date Written: July 6, 2009

Abstract

This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas’s opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents - which I have reproduced in an appendix - shed new light on several apparently disparate issues in constitutional law: the Supreme Court’s use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be.

Keywords: constitutional law, constitutional history, constitutional theory, legal history, substantive due process, fundamental rights, abortion, vagrancy, void for vagueness

Suggested Citation

Goluboff, Risa L., Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights (July 6, 2009). Stanford Law Review, Vol. 62, 2010; Virginia Public Law and Legal Theory Research Paper No. 2009-04. Available at SSRN: https://ssrn.com/abstract=1428965 or http://dx.doi.org/10.2139/ssrn.1428965

Risa L. Goluboff (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

HOME PAGE: http://www.law.virginia.edu/lawweb/Faculty.nsf/FHPbI/9230

Register to save articles to
your library

Register

Paper statistics

Downloads
236
Abstract Views
1,453
rank
129,618
PlumX Metrics