Okay, this one goes out to all the con law geeks in the audience. Get your lighters in the air…
Cato Unbound has a very interesting debate going on about substantive due process. What is substantive due process? Glad you asked. Actually, I don’t care if you asked, I’m going to explain it anyway.
The phrase “due process of law” appears twice in the Constitution, in the 5th and 14th amendments. In the 5th amendment it says that “No person shall be … deprived of life, liberty, or property, without due process of law.” The 14th amendment applies that to the states, saying, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Tim Sandefur, an old friend of Dispatches, writes the lead essay defending the concept.
Substantive due process is among the most vilified ideas in American law. Sometimes it seems lawyers compete to find the cleverest way to ridicule it, as an “oxymoron,” a “contradiction in terms,” or a mere trick whereby judges substitute their personal political opinions for the law. Just weeks ago, Justice Clarence Thomas restated his longstanding rejection of substantive due process: “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against ‘unfairness.’”
I think that’s wrong. As I have argued recently in the Harvard Journal of Law and Public Policy, substantive due process is as legitimate—indeed, as crucial—a part of our Constitution as the principle of, say, separation of powers. Note that the phrase “separation of powers” doesn’t appear in the Constitution; it’s an abstract principle one infers from the structure, ideas, and history of the document. The same is true of substantive due process.
Perhaps saddest of all, it often seems that the most vocal critics of substantive due process don’t even understand how the doctrine works in the first place. My point here is to explain briefly how the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” means not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”
This seems entirely obvious to me. If the due process clauses mean nothing more than “the government can deprive you of your rights as long as they follow the proper procedure to pass a law to do so,” then the very idea of individual rights is eliminated by majoritarian tyranny. This goes hand in hand with the concept of unenumerated rights and the proper interpretation of the 9th Amendment, which Sandefur addresses in a second essay.
Prof. Bernstein, echoing many critiques of substantive due process, basically asks where judges are supposed to stop: would it be proper for a judge to say at any point “I think this law intrudes on unenumerated rights and, were I a legislator, I’d therefore oppose it, but as a judge I will defer to elected representatives”?
My answer to this is no. The point of our constitutional system is not to establish a democracy, but to limit it by imposing, among other things, the requirement that democracy act within the boundaries of law. But this is not merely a procedural requirement; to be entitled to the name “law,” a government act must comply with certain substantive values—it must be general, it must be fair, it must be public-oriented, and so forth. The Constitution deems any “democratic” action that exceeds these boundaries to be illegal, and a judge is bound to regard it as invalid. I see no basis for deference to a law that exceeds these boundaries and violates individual rights. Deference is legitimate only within the realm of legitimate action: should the age of consent be 16 or 18? Should the police station be located on this corner or on that? But there can be no legitimate action depriving people of rights—whether they be enumerated or not—and therefore it is proper for the court to invalidate such acts…
Of course I don’t think judges should exceed their authority or abuse their power; just as I don’t think any official should exceed authority or abuse power. A judge who exceeds his legitimate authority is acting lawlessly, and his decisions cannot be regarded as true law, just as when a legislature exceeds its authority. But I think a robust judiciary, more willing to engage the question of legislative authority and to defend individual rights, would be healthier for American democracy than the often overly deferential judiciary that we now have. Our system was meant to balance the judiciary against the legislature, and for good reason. We do harm to that system when our judges defer to the legislature to exceed its constitutional boundaries.
As I have argued many times in the past, conservative judges and legal scholars tend to write the 9th Amendment right out of the constitution. Robert Bork did this most famously when he referred to the 9th Amendment as an “ink blot” on the Constitution. Conservatives scream bloody murder whenever a judge “discovers” a right that isn’t explicitly stated in the Constitution — well, sometimes; when they agree with that right, like the right to send one’s children to private schools, their opposition to unenumerated rights magically disappears — and claim that if it isn’t explicitly listed as a right, it isn’t one. But that would render the 9th amendment meaningless. It would make unenumerated rights unenforceable and therefore make the 9th amendment mean that the people retain unenumerated rights but those rights can be abridged whenever the government chooses to do so.