Page:Kerry v. Din.pdf/8

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KERRY v. DIN

Opinion of Scalia, J.

"liberty"—never mind the original meaning of that word in the Due Process Clause.) These implied rights have been given more protection than "life, liberty, or property" properly understood. While one may be dispossessed of property, thrown in jail, or even executed so long as proper procedures are followed, the enjoyment of implied consti­tutional rights cannot be limited at all, except by provi­sions that are "narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U. S. 292, 301–302 (1993). Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest. She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Govern­ment must first provide her a full battery of procedural­ due-process protections.

I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din’s arguments would fail. Because "extending constitutional protection to an asserted right or liberty interest . . . place[s] the matter outside the arena of public debate and legislative action," Washington v. Glucksberg, 521 U. S. 702, 720 (1997), and because the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins v. Harker Heights, 503 U. S. 115, 125 (1992), “[t]he doctrine of judicial selfrestraint requires us to exercise the utmost care whenever we are asked to break new ground in this field," ibid. Accordingly, before conferring constitutional status upon a previously unrecognized "liberty," we have required "a careful description of the asserted fundamental liberty interest," as well as a demonstration that the interest is "objectively, deeply rooted in this Nation’s history and