The Fallacy of Substantive Due Process

The Due Process Clause of the 14th amendment has been the center of more judicial controversy over the past century than perhaps any other section of the Constitution. The clause states “nor shall any state deprive any person of life, liberty, or property, without due process of law.” The clause protects persons from having their life, liberty, or property infringed on by the state, if the state does not follow proper procedure under their respective laws. Thus, the clause protects procedural rights alone. However, beginning in Lochner v New York, Nebraska v Meyer, and continuing through Griswold, and Roe the court has held that the Due Process Clause has a substantive meaning, in that it actually protects rights that are essential to a person’s life. This approach to the Due Process Clause creates confusion and unnecessary complications. As Justice Thomas states “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words” (Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215 2022). The lack of historical and textual support for the substantive due process theory is striking. Thus, if the court continues to build on its wrongly decided precedent, the legitimacy of the court will continue to degrade. For these reasons the due process clause is certainly not the place in the constitution to protect emerging claims of liberty. Instead, as I will later explain, the Privileges and Immunities Clause applies the first eight Amendments of the Bill of Rights to the states. It is this clause that protects rights of citizens and constrains the states from infringing on these rights, which beforehand did not apply to them.      

Substantive due process is a legal principle that the 14th Amendment protects fundamental rights from government interference. As stated by Chemerinsky “Substantive due process asks the question of whether the government's deprivation of a person's life, liberty or property is justified by a sufficient purpose.” (Chemerinsky, 2). This analysis of the Due Process Clause leaves the court in a precarious position. What rights, unenumerated, are fundamental and protected by the liberty granted in the Due Process Clause? As stated by the court in Meyer v Nebraska, protected liberties include “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (Meyer v.Nebraska, 262 U.S. 390.). This interpretation leaves numerous questions unanswered, forcing the court in later decisions such as Glucksberg and Dobbs to limit the rights protected by the Due Process Clause and create a substantive due process analysis framework. First the court asks how important is the liberty in question? To answer this question the court has stated that in order for a right to be fundamental it must be “deeply rooted in this nation's history and tradition”(Dobbs). If there is no history of the right being protected in this country, states can regulate it in any manner they choose as long as the state has a rational basis. If a liberty is fundamental, states must have a compelling reason for their regulation and minimally burden that right (Hanson). 

This substantive due process framework for analyzing emerging claims of liberties is in my opinion, unconstitutional. The Due Process Clause does not protect any liberties, rather it ensures that proper legal procedures are followed when depriving someone of life, liberty, or property. When the Magna Carta was signed in 1215 King John ensured to his barons that no man’s life or property would be taken from him without following the “laws of the land.” In other words, protections were ensured to citizens that they would be free from arbitrary judgements of royal decrees (Watson). This notion of “laws of the land” transitioned into the phrase “due process.” This was the understanding of the phrase at the time of the drafting of the Amendment. In order to follow due process a state must fairly apply its laws to all citizens, which at the time was not occurring in the South, and a main goal the drafters intended to fix. On top of this, at the time of the drafting of the 14th, former slaves were still not citizens and were treated unfairly in southern states under the law (Foner). Dred Scott, the case that ruled that Black people could not be citizens, was still in effect. Given that blacks were not citizens, southern states could deny them property ownership, legal rights, and voting rights. The drafters of the amendment had a multiple pronged approach to protect rights of blacks and in effect overturn Dred Scott. First, the drafters added birthright citizenship to the constitution to ensure citizenship to former slaves and overturn Dred Scott. Second, the due process clause was added to ensure that the laws of each state applied to all citizens equally.  The Due Process Clause was an attempt to remedy the unfair treatment of blacks in the South. It forced the states to treat people fairly with proper legal procedures, in no way did it also protect the substance of liberty. This argument could not be summed up any better than by Justice Scalia “By its inescapable terms, [the Due Process Clause] guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require-notably, a validly enacted law and a fair trial. To say otherwise is to abandon textualism, and to render democratically adopted texts mere springboards for judicial lawmaking” (Greene, 258).

Throughout my research I have discovered worthy interpretations of the substantive due process clause that argue for its protection and continued implementation. In an article written by Timothy Sandefur, he crafts a unique argument in which he argues that a law that infringes on someone's “natural rights” is not a legitimate law and did not pass the proper procedures and is thus invalid under the Due Process Clause. Though I find merit in his argument there are two glaring problems with his interpretation. There is little to no evidence surrounding the drafting of the Amendment to prove that this was the intention of the authors. In fact, as the evidence previously presented has shown, the goals of the Due Process Clause were quite narrow and defined: protect the right of former slaves, but generally all people, to have access to fair trials, hearings, and proper procedures before being deprived of life, liberty, or property. The second critique of this argument is that it is wholly impractical and unhelpful. He argues that the infringement of natural rights in a law is enough to make that given law illegitimate. However, he never gives a proper definition of “natural rights” or gives the reader any basis for understanding what those rights might be. The definition of “natural rights” given by Oxford Reference is “those [rights] not dependent on the laws or customs of any particular culture or government, and so are universal, fundamental, and inalienable” (Oxford Reference). Personally, I completely agree with this definition and Sandefur in that there are rights, so important, they cannot be taken from any person. However, in a practical sense the definition is too broad for constitutional application. This theory is simply impractical and if allowed the courts would be overwhelmed with vast amounts of cases arguing for protection of a wide range of rights.

The second paper I had discovered for substantive due process makes a case for its continued use on the basis of stare decisis. Surprisingly, the author Jamal Greene, in his article The Meming of Substantive Due Process argues that the court's interpretation of substantive due process has been incorrect. He defines substantive due process as an oxymoron and a “constitutional meme”. In other words it is an idea that replicates through imitation within constitutional culture rather than logical reason. A more legal definition of this concept is precedent. Greene states that his essay “explores the intellectual and social history of the substantive due process as a contradiction meme and argues that it is often appropriate for judges to rely upon such memes even if their underlying claim lacks analytic integrity” (Greene, 253). Greene concedes, as I have argued, that the substantive due process precedent lacks both constitutional logic and analytic integrity. Nonetheless, stare decisis is of such importance that these cases should stand nonetheless. The flaws in his argument run quite deep.                

The implications of my argument are no doubt quite radical. All substantive due process cases must fall. There are no rights whether it be abortion, privacy, marriage, or family decion making lurking in the Due Process Clause. Though to note, I will discuss how some of those rights could be protected through other constitutional pathways later in the essay. Nonetheless, the damage that could be done to the court by Greene’s argument is much worse. The decisions such as Meyer, Griswold, Eisenstadt, Lawrence, and Obergefell should be overturned as they harm the legitimacy of the court, the most powerful tool the court has to ensure its decisions are respected. The court has no army or police force to enforce its decisions. The reasons decisions are followed by all 50 states is because of the extreme respect given to the court and the belief that the justices are unbiased and provide fair ruling based on reasonable interpretations of the facts. The legitimacy of the court holds this country together. To threaten its legitimacy by continuing to build on wrongly decided precedent undermines the very fabric of this nation.    Nonetheless, I do concede that emerging claims of liberty will not cease, there will always be a demand for different liberties to be protected and the court must give a response. The only theoretically legitimate clause that protects rights of citizens is in the Privileges and Immunities Clause. 

Before the 14th Amendment was passed the protections offered in the Bill of Rights were only a restraint on the Federal Government. These rights did not apply to the citizens and they did not in any way prevent the States from violating these rights. Supporters of substantive due process argue that it is this clause that applies the Bill of Rights to the states. However, as history and the evidence demonstrate this could not be the case as the clause only prevents states from infringing on their citizens procedural rights. Instead, the drafters of the Amendment created the Privileges and Immunities clause for the protection of rights. 

The history around the drafting of the 14th Amendment is quite complicated and involves intricate arguments around states rights and citizenship. Many states’ rights proponents believed in a legal theory that the Bill of Rights did not apply to the States. Though today we would call this a radical view, it is clear that the drafters of the Amendment agreed and viewed it as a roadblock in protecting the rights of citizens. This issue was something they were trying to fix with the Amendment itself. In McDonald, Thomas states “Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person” (McDonald v. Chicago, 561 U.S. 742 (2010)). This quote reveals two crucial things. First, the goal of the amendment was to apply the protections in the Bill of Rights to the States. Secondly, the clause intended to do this was the Privileges and Immunities Clause.   

This leads us to perhaps the most difficult question throughout this exercise. What rights are protected by the Privileges and Immunities Clause? Thomas states in Mcdonald “There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States” (McDonald). It appears through the legislative record the goal of the amendment as Thomas states was to put an end to the extreme states’ rights legal theory that the Bill of Rights did not apply to the States. It did not protect any rights beyond those enumerated in the constitution. Another piece of evidence in support of this claim comes from Henry Dawes, one of the authors of the Amendment. In an 1871 debate on a bill to enforce the 14th Amendment, Dawes listed the first eight Amendments of the Bill of Rights as the Privileges and Immunities given to 4 million slaves after the war through the passing of 14th (McDonald)​. What is proven by this piece of evidence is that a major author of the 14th Amendment viewed the rights protected by Privileges and Immunities Clause as those enumerated in the Constitution.    

Further evidence for the claim that the Privileges and Immunities Clause protects the first eight Amendments can be seen in the passage of the 15th Amendment. The 15th Amendment protected the right to vote for citizens regardless of race. When the 14th Amendment was passed the right to vote was not protected anywhere in the Constitution. Instead, it was widely considered as a privilege of being a U.S citizen. Had the 14th Amendment intended to protect unenumerated rights such as the right to vote there would  have been no need to include the 15th Amendment. In other words, the Privileges and Immunities Clause did not intend to protect all rights or the 15th amendment would have been redundant, because privilege and immunities would have protected it. Through the 15th Amendment, the drafters clearly wanted to remedy the problem of Blacks in the South being denied the vote. Had they intended the Privileges and Immunities Clause to protect unenumerated rights, such as voting, they would never have felt a need to enumerate that right in the Constitution in the 15th amendment. In conclusion, vast historical and analytical data provide sufficient evidence for my claim: the Privileges and Immunities Clause applies the first eight Amendments of the Bill of Rights to the States.  

One major point of critique many offer when they hear my argument is that the Constitution does protect unenumerated rights in the Ninth Amendment. The Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Though the amendment clearly indicates there are unenumerated rights in the Constitution, this Amendment does not apply to the States. It is important to remember that the authors of the 14th Amendment clearly did not believe the Bill of Rights applied to the States. Their goal was to apply the first eight amendments to the States through the Privileges and Immunities Clause. They did not, however, apply the Ninth Amendment to the States. In other words, since the creation of the Constitution the ninth amendment has been a limitation on the power of the Federal Government. This is further supported by the fact that by definition the Ninth Amendment is not a privilege or immunity. It is rather a broad protection of unenumerated rights of U.S citizens against the Federal Government. For example, if a person in Texas felt that a right protected by the Ninth Amendment was abortion and Texas had a complete abortion ban, since the Ninth Amendment does not apply to the States there is no case that could be brought against Texas. However, if a national abortion ban was passed, one could bring a case to the court arguing that it violates the Ninth Amendment. The reason for this is the Bill of Rights is a limitation on Federal Power, and only the first eight have been applied to the States. However, if a state passed a wide ban on gun ownership this could be struck down as being in violation of the Second Amendment because this amendment has been applied to the States through the Privileges and Immunities Clause.

The final point I will make on the ninth amendment is in how it is worded. The amendment states that there are other rights that are retained by the people. One interpretation is that there are other constitutional rights that are not listed explicitly, however, are still protected. I interpret this part of the amendment slightly differently. By stating their are rights retained by the people I interpret this as certain rights such as abortion, trans rights, privacy, gay marriage, and any rights that emerge from the general public are not included in the constitution and are thus left to the democratic process. In no ways did the founders intend to leave the decision of which rights are protected up to exclusively the judiciary. As the amendment states the decision of which rights, not listed in the constitution, are protected are left to the people.     

Some have argued that this approach to substantive due process would cause chaos in the court system, legislatures, and society. Rights that were once deemed fundamental would be stripped away overnight. However, Justice Thomas makes an argument worth noting in response to critics of this approach, “To be sure interpreting the Privileges and Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer. I believe those questions are more worthy of this court's attention – and far more likely to yield discernable answers – than the substantive due process questions the court has for years created on its own, with neither textual or historical support" (McDonald, 855)​. When the Constitution is interpreted as it was intended, with textual and historical support, the answers to difficult questions will benefit from having legitimacy. Adherence to stare decisis when the precedent is clearly wrong does not provide stability, but rather leads to a slow degradation in the trust of the court as an institution. The lack of historical or textual support for substantive due process jurisprudence demands the court to end this approach. Thus, the Privileges and Immunities Clause is the only constitutionally legitimate clause in the 14th Amendment that protects rights. These rights can be defined as the first eight Amendments of the Constitution. Not only is the legitimacy of the court on the line when deciding such constitutional questions, but in fact, it is the responsibility of the court to be our better angels so that our extreme diversity can continue to strengthen us rather than divide us. Those who wrote the 14th Amendment knew and experienced a country divided. I fear a day that the court is no longer trusted or upheld. A day when our issues are not settled through oral arguments, but through fighting in the streets. 

References:

Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215 (2022).

Erwin Chemerinsky, "Substantive Due Process," Touro Law Review 15, no. 4 (Summer 1999): 

1501-1534. 

Foner, Eric. 2020. SECOND FOUNDING : How the Civil War and Reconstruction Remade the Constitution. W.W. Norton & Company.

Hanson Lecture 9/19/2024.

Jamal Greene, "The Meming of Substantive Due Process," Constitutional Commentary 31, no. 2 

(Summer 2016): 253-294.

McReynolds, J. C. & Supreme Court Of The United States. (1922) U.S. Reports: Meyer v.

Nebraska, 262 U.S. 390.

McDonald v. Chicago, 561 U.S. 742 (2010)

Oxford Reference

Timothy Sandefur, "Privileges, Immunities, and Substantive Due Process," New York University

Journal of Law & Liberty 5, no. 1 (2010): 115-17.

Watson , Bradley. 2022. “Clarence Thomas Dismantles the Fiction of Substantive Due Process. Claremont Review of Books.” Claremont Review of Books. 2022. 

https://claremontreviewofbooks.com/restoring-the-constitution-2/.

Thanks to Neil Natori for helping me write this paper.