concurring in part and dissenting in part.
I agree with the Court that the plaintiffs have standing to sue. I would also reject the defendants’ contention that there was a failure to join necessary parties. To that extent, I concur in Parts II.A and II.B of the Court’s opinion. But on the merits, I respectfully dissent. The fundamental right of privacy, in my view, includes the right of parents to name their own children, and the State has shown no interest on the facts of these cases sufficiently compelling to override that right. So I cast my vote to affirm the judgment of the District Court, holding invalid as applied to these eases Neb.Rev.Stat. § 71-640.01 (1986).
A few salient facts are worth repeating. Debra Henne wants to give her daughter the surname of the little girl’s father. The father is willing. He has acknowledged his fatherhood. The man to whom Ms. Henne was married when the baby was born has no objection. Linda Spidell wants to name her daughter “McKenzie,” which is neither her name nor the name of the child’s father. The choice is not so eccentric as it seems, however: Ms. Spidell’s two other children are named “McKenzie,” and it is quite natural to desire that all of one’s three children have the same surname. Again, no one with a personal interest objects. Ray Duffer, the man who lives with Ms. Spidell, is the child’s father, and “McKenzie” is fine with him.
The government, in the person of the State of Nebraska, says no to both mothers. The most plausible reason it offers is administrative convenience.1 Records are easier to keep and use if every person has the surname of “at least one legally verifiable parent.” Ante, at 1215. This interest is legitimate, and the statute under challenge is rationally related to it. If the appropriate level of constitutional scrutiny were the rational-basis test, I would agree that the law is valid. But if a fundamental right is at stake, the State must show a compelling interest, which it has wholly failed to do. So the case comes down to this: Do parents have a fundamental right to name their own children?
The question could well be analyzed as a First Amendment issue. What I call myself or my child is an aspect of speech. When the State says I cannot call my child what I want to call her, my freedom of expression, both oral and written, is lessened. And if the First Amendment is at stake, everyone would concede that the State could not win without showing a compelling interest. But the parties have not presented the case in First Amendment terms, either here or in the District Court. It would be unfair for an appellate court to decide the case on that basis, at least without a chance for additional briefing.
So we address the case in terms of the right of privacy. This is trickier ground than the First Amendment. There is a Speech Clause, but no “Privacy Clause” as such. The right of privacy is not the beneficiary of explicit textual protection in the federal Constitution. It is an unenumerat-ed right. There are such things in constitutional law, however. We know that much (if we know little else) from the Ninth Amendment. The Founders of this Nation deeply believed that the individual took primacy over government. People existed, and had rights, before there was such a thing as government. Government might protect or recognize rights, but rights, some of them anyway, existed before government and independently of it, and would continue to exist after government had been destroyed. The source of rights was not the State, but, as the Decla*1217ration of Independence put it, the “Creator.”
It is perfectly true, and the Court is right to emphasize, that unelected judges should tread with great caution when dealing “with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Moore v. City of East Cleveland, 431 U.S. 494, 544, 97 S.Ct. 1932, 1958, 52 L.Ed.2d 531 (1977) (White, J., dissenting). But the proposition that unenumerated rights exist is both textually demonstrable (the Ninth Amendment) and sanctified by Supreme Court precedent. The right to travel, for example, was recognized long before the modern debate over the right of privacy, and even before the passage of the Due Process Clause of the Fourteenth Amendment, with its open-ended reference to liberty, created a textual basis for limitations on the power of States not contained in the words of the original Constitution. See Crandall v. Nevada, 73 U.S. (6 Wall) 35, 18 L.Ed. 744 (1867).
The real question is, not whether there is a right of privacy (see also the Fourth Amendment for a modicum of textual support), but how do you tell what it includes? The limits of the right remain controversial, and no doubt they will continue to be tested by litigation. Precedent tells us at least this much, though: family matters, including decisions relating to child rearing and marriage, are on almost everyone’s list of fundamental rights. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978), and the other cases cited by the Court, ante, at 1214. The right to name one’s child seems to me, if anything, more personal and intimate, less likely to affect people outside the family, than the right to send the child to a private school, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), or to have the child learn German, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). We know, moreover, from Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that these women had a fundamental right to prevent their children from being born in the first place. It is a bizarre rule of law indeed that says they cannot name the children once they are born. If there was ever a case of the greater including the less, this ought to be it.
So I do not see the right being claimed here as an “extension,” ante, at 1214, of prior cases. It is rather well within the principle of those cases. A person’s name is, in a sense, her identity, her personality, her being. I take it the Court would not deny a citizen the right to choose her own name, absent some compelling governmental interest. No more should we deny her the right to choose her child’s name. The child has, at birth, no will of her own, and her parents should be allowed to speak for her. There is something sacred about a name. It is our own business, not the government’s.
Having labeled the present claim as an “extension” of existing law, the Court goes on to say that extensions may be permitted only if they are “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, supra, 431 U.S. at 503, 97 S.Ct. at 1938. It then asks whether there is an “American tradition to support the extension of the right of privacy to cover the right of a parent to give a child a surname with which that child has no legally recognized parental connection.” Ante, at 1215. Having satisfied itself that there is no such tradition, the Court rejects what it characterizes as an “extension” of the right of privacy.
As is often the case, how one phrases a question has a great deal to do with the answer one gets. To illustrate the point, I refer to some aspects of tradition about names that the Court does not mention. In the beginning, surnames were unknown. They “were not considered of controlling importance until the reign of Queen Elizabeth, 1558-1603.” Note, What’s in a Name?, 2 N.Y.L.Rev. 1, 1 (1924). “The surname, in its origin, was not, as a rule, inherited from the father, but was either voluntarily adopted by the son or conferred *1218upon him by his neighbors....” Ibid.2 Fundamentally, names were not inherited. They were something people chose for themselves. “There [was] no such thing as the ‘legal name’ of a person in the sense that he may not lawfully adopt or acquire another. By the common law a man [sic] may name himself, or change his name at will, and this without solemnity or formality of any kind; or he may acquire a name by reputation, general usage or habit.” Id. at 2 (citations omitted). Even after statutes were passed to provide a fixed procedure for changing one’s name, the statutes were treated as merely supplementary to the common law. One could use the statute if desired, but the old do-it-yourself right simply to assume a new name still existed. Smith v. United States Cas. Co., 197 N.Y. 420, 90 N.E. 947, 950 (1910).
The early tradition, then, did not restrict one’s own choice of a surname. You could freely select any name you chose, whether it was your parents’ surname or not. “The ancient custom was for the son to adopt a surname at will, regardless of that borne by his father,” Smith, supra, 90 N.E. at 949. And even after this custom had fallen into disuse, and people had begun automatically to assume the surnames of their fathers, “ ‘there [was] nothing in law prohibiting a man from taking another name if he chooses.’ ” Ibid, quoting In re Snook, 2 Hilt. 566 (N.Y.Ct. Common Pleas 1859). Names were people’s own business, not the government’s. One’s name did not have to be that of a legally recognized parent.
The best example of this tradition I have found is Doe ex dem. Luscombe v. Yates, 5 B. & Ald. 544, 106 Eng.Rep. 1289 (K.B. 1822). Luscombe devised his estate to one Manning, provided that within three years he should cause his name “to be altered and changed to my name of Luscombe, by act or acts of Parliament, or some other effectual way for that purpose.” In default of the name change, the devise was to be void. Without securing an Act of Parliament or obtaining a license from the King, Manning simply adopted the name of Luscombe and used it for all purposes and exclusively. The Court held the devise was good. Abbott, C.J., said: “A name assumed by the voluntary act of a young man at his outset into life, adopted by all who knew him and by which he is constantly called, becomes for all purposes that occur to my mind as much and effectually his name as if he had obtained an act of Parliament to confer it upon him.” 5 B. & Aid. at 556, 106 Eng.Rep. at 1294. Land was serious business to the law of England, and we can be sure that a name change made without governmental sanction, if effective to confirm a devise of land, was effective for all purposes whatsoever.
The cases cited so far on the question of tradition are all rather old; and it may fairly be asked, whether any tradition that once existed still obtains. There is good evidence that the answer is yes. See, e.g., Hauser v. Callaway, 36 F.2d 667, 669 (8th Cir.1929) (“A man’s name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known.”). The most recent case on the point I have found, Walker v. Jackson, 391 F.Supp. 1395, 1402 (E.D.Ark.1975) (three-judge court) (Webster, Henley, and Eisele, JJ.), squarely holds that under the common law of Arkansas — which has not been changed by statute — a person can change his name at will in the absence of fraud.
So far as the choice of one’s own name is concerned, then, it seems well established that the tradition, still extant, is a complete absence of statutory prohibition. Certainly there is no pattern of positive law denying such a right of self-determination. I take it that the Court would concede that there is a fundamental right to choose one’s own name. There is no “societal tradition of enacting laws denying [this] interest,” Michael H. v. Gerald D., — U.S. —, 109 S.Ct. 2333, 2341 n. 2, 105 L.Ed.2d 91 (1989) (plurality opinion) (emphasis in original), *1219and that seems to be the standard that has recently attracted more votes than any other on the Supreme Court.
This Court, however, phrases the question more narrowly: is there a tradition supporting “the right of a parent to give a child a surname with which that child has no legally recognized parental connection”? Ante, at 1215. I grant that there is no such tradition: what the plaintiffs in this case want to do is unusual. Few parents, no doubt, have done or wanted to do it in the past, and few would want to do it now. But, by the same token, there is no solid tradition of legislation denying any such right, and under Michael H., supra, that is the relevant question. In the absence of any tradition either way on the precise point, we should look, I submit, to the tradition we do have. People may choose or change their own names without leave of government. It is only a small step to extend the same right to their children's names. Children are, during infancy anyway, simply legal extensions of their parents for many purposes.
So I would hold that the right asserted here is fundamental, and that the State has no interest compelling enough to override it in the circumstances of this case. In attempting to do so, the State intrudes intolerably into what should be a private decision, one of the basic liberties of the citizen. I respectfully dissent from the judgment of reversal.
. It is also true, as the Court says, ante, at 1215, that allowing an unfettered choice of surname could enable parents to imply falsely that someone was the father of the child. In the example I put at the oral argument, I would have an interest in keeping a stranger from naming her child "Richard S. Arnold, Jr.," and the State would have an interest in defending my reputation against such a false implication. Nothing of the kind is involved in the present cases. Moreover, the State might have an interest in the matter if the child’s parents could not agree on a surname. Again, no such issue is presented by these cases.
. The older authorities on names uniformly refer to "fathers," “sons,” and what “a man” might choose for a name. I take it everyone would concede today that mothers, daughters, and women in general are legally entitled to the benefit of whatever tradition was formerly expressed in male terms.