Why Substantive Due Process Matters

Why Substantive Due Process Matters February 28, 2012

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.

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  • Michael Heath

    I thought I’d add the applicable amendments to the thread.

    The 5th Amendment:

    Amendment 5 – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The 9th Amendment:

    Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The 14th Amendment:

    Amendment 14 – Citizenship Rights. Ratified 7/9/1868. Note History

    1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  • Michael Heath

    I appreciate the objection to reading the 5th Amendment’s due process clause broadly. However rulings should never ignore other relevant clauses. So even if a judge justifiably reads the 5th narrowly, he can’t ignore the 9th and the 14th amendments which do a far better job of both limiting government power to deny rights and obligates the federal government to defend individual rights, even in light of the 10th amendment*.

    We all know that the appellate courts ignore the 9th to the point trial judges rarely consider it; but we should also acknowledge that putting the 9th in play, which I support, risks significant policy challenges for both conservatives and liberals. E.g., I read some arguments several years ago about how Clarence Thomas would love to use the 9th in a way that would guarantee effective control of the country could be handed over to a handful of plutocrats.

    I was surprised in a recent blog post by Ed reporting on a recent federal case ruling. I think it was the 9th Circuit Court using the 5th Amendment to support gay rights in the Prop 8 case. That required a broad interpretation of the 5th’s due process clause where my reaction was why bother leveraging a controversial reading of the 5th when the 14th’s plain and unambiguous language clearly reveals that prop 8 was unconstitutional?

    *The 10th is misinterpreted by conservatives by their conveniently ignoring that 10th doesn’t solely refer to the states but also to people where the original meaning of ‘people’ in the Bill of Rights was clearly understood to be a collection of individuals rather than a majority, i.e., the 10th doesn’t sell out our individual rights. The 14th also overturns a defective reading that it does as well.

  • I’m not a legal scholar, but I’ve always tended to look at the due process parts as recognizing that in some cases, it’s necessary to violate someone’s rights for the common good, however, the government must go through proper procedures to show that it’s necessary, and not taken lightly.

    If you want to imprison someone suspected of a violent crime, that would deprive them of their liberty. To do that, you have to go through the due process of a trial and conviction. The government has to go through with a fair trial and prove he’s a violent criminal and a danger to society before they can lock him up.

    Of course, my example is how it’s supposed to work. America hasn’t been itself for a while, now.

  • Michael Heath

    Bronze Dog,

    I’m confident your understanding is the narrow interpretation, where Ed and Tim Sandefur argue for a far broader interpretation which further narrows the government’s power and further obligates the federal government’s protection of individual rights.

  • I support the broad interpretation, and didn’t intend to make that as a statement of just supporting the narrow. I’ve seen a few too many mob rule and/or totalitarian nuts who reject the narrow as well as the broad.

  • eric

    Bronze dog: the government must go through proper procedures to show that it’s necessary, and not taken lightly

    That ‘not taken lightly’ is really the crux though, isn’t it?

    I don’t see how folks like Thomas can do away with the concept of substantive due process. Law clearly recognizes that different acts by government have to pass different levels of scrutiny before being legal, depending on how they impose on the citizens. There’s a continuum or spectrum of requirements. Denying the concept of substantive due process is like pretending the high end of this spectrum doesn’t exist. Its like saying you are okay with 1+1=2, but when it starts to add up to a million, you aren’t too sure about this math thing. Too bad: once you’ve accepted that different government acts require different levels of scrutiny at all, then to be rationally consistent you pretty much have to accept the fact that extreme impositions are going to require extreme scrutiny, to the point were the vast majority of government requests are going to fail it.

  • lofgren

    I support the broad interpretation as a legal concept, it just seems like quite a stretch to be extrapolating it from those few words. I think it makes sense to say that you can extrapolate a guarantee against “unfairness” in the same way that we extrapolate a separation of powers based on the structure of the document. But I don’t believe that is actually what these four little words mean in this context. Due process of law means the specific legal steps that must be taken. It’s the entire rest of the document that implies that those legal steps should be “fair.” Honestly, it’s shocking to me that we should even need to ask whether the government should be fair or just in its actions. I suspect that after fighting that revolution thing, it probably didn’t even occur to them that they needed to say something like “Oh BTW, laws should be fair and just kthxby.” It’s such a basic tenet of everything that the constitution is trying to accomplish that it would be like starting an essay by saying “This is an introduction to an essay which contains a thesis and then argues for that thesis.”

  • D. C. Sessions

    How does “substantive due process” relate to questions such as executing someone who has exhausted his appeals but who has been cleared by recently discovered evidence? Or someone who might be cleared by DNA testing even though appeals have been exhausted?

    US jurisprudence is remarkably process- vs. results-oriented. I’m a big fan of processes as a means to improve results, but in this country we’ve elevated the process to become the end in itself and never mind where it leads.

  • Johnny Vector

    US jurisprudence is remarkably process- vs. results-oriented. I’m a big fan of processes as a means to improve results, but in this country we’ve elevated the process to become the end in itself and never mind where it leads.

    Exactly. And I don’t see any way to fix that.

    In the little corner of government I work in, every time something bad happens (mission failure, cost overrun, schedule overrun), the solution is to add another layer of process. Which makes sense when you look at personalities as tending toward four areas: Process, Problem-solving, People, and Novelty. That’s a sort of simplified Myers-Briggs division I learned in a leadership class, and as far as I can tell it’s a useful heuristic.

    So, people who are in charge of setting up the process are going to be process-oriented people. And in fact, people who are strongly process-oriented will tend to dominate the process of setting process.

    I understand that leaving a lot of law to the discretion of the courts is a recipe for anarchy. But as it becomes more process-oriented, the people drawn to the system will be less and less likely to even consider the system as anything more than a process. And the more arcane and tightly structured, the better.

  • Chris from Europe

    @D. C. Sessions

    As Ed has written about Bork and Scalia, they do want to take away the rights of certain groups of people and at least Scalia apparently wants to execute innocents.

    I wonder how much the appointment process has affected this outcome. Since politicians from White House to the Senate didn’t like the liberal direction of earlier courts, especially with respect to crime and sexual issues, they steered the Court hard to the other direction. So instead of Justices threatening to outlaw the death penalty, there are now ones that rather kill innocents.

    Of course, a Court that takes its responsibility seriously tends to provoke voter outcries and backlashes.

    (Apparently, there are quite a few people who still haven’t gotten over the Miranda decision.)

  • juice

    Constitutional law is like Bible apologetics. The words say one thing. People want them to say more than that or another thing entirely, but they can’t be changed, so we strain out concepts like substantive due process and incorporation.

  • Chris from Europe


    What bullshit. As Ed points out, without substantive due process and incorporation or similar interpretation the goals of the 5th and 14th Amendment cannot be reached. And as with Bible literalists, you lie by implying that non-interpretation is an option. It is not.