Due Process: Procedural and Substantive
As we saw last time, the Ninth Amendment tells us that, in addition to the bill of rights, the constitution also protects other rights that are not listed. But it does not of course tell us what those rights are, or even give us any clue how to determine them. So the constitution leaves it up to us to figure out what fundamental unenumerated rights are protected.
And federal courts have spilt an ocean of ink in judicial opinions over the years grappling with this thorny question. But oddly, they have not relied on the Ninth Amendment as the constitutional source of unenumerated rights. Instead they invented a doctrine without any textual hook in the constitution called “substantive due process.”
“Due process” does appear in the constitution. The Fifth Amendment prohibits the federal government from taking away any person’s life, liberty, or property without “due process of law.” And the Fourteenth Amendment extends the same prohibition to the states.
So what is due process? Literally, the process that is due. Or, more concretely, the government must use fair procedures when it deprives a person of life, liberty, or property. So, for example, the government can’t convict you of a crime (deprive you of liberty) without proving your guilt beyond a reasonable doubt to an impartial jury in a fair trial.
But, importantly, this clause is not guaranteeing your liberty or granting you a right to liberty. On the contrary, it explicitly contemplates that the government may infringe your liberty, if it follows the appropriate process.
If you’re looking for your right to liberty in the constitution, you’re not going to find it. It turns out, liberty is one of those pesky unenumerated rights!
And yet you will constantly find references, even by Supreme Court justices, to the “liberty clause” of the constitution1. What are they talking about? They’re referring to those two due process clauses in the Fifth and Fourteenth Amendments.
And liberty is not the only unenumerated right ascribed by the judiciary to due process. In fact, federal courts have erected the entire edifice of fundamental unenumerated rights doctrine on these two provisions.
As we have seen, the texts of the due process clauses do not grant any such rights. How, you ask, has the federal judiciary come to the conclusion, nonetheless, that the due process clauses guarantee rights not found in their text and in fact in some tension with what actually they seem to say?
Why, substantive due process of course! So what exactly is it?
The law generally distinguishes between substantive rules governing the rights and obligations of individuals and procedural rules that determine how those substantive laws are applied in a given case.
The constitution’s enumerated rights generally reflect this distinction. The first three amendments of the bill of rights, for example, spell out substantive rights, like freedom of speech. The Fifth and Sixth Amendments, on the other hand, are essentially lists of procedural rights, like the right to counsel in criminal cases.2
And indeed, we find the due process guarantee, a sort of omnibus procedural right to fair process in general, in the Fifth Amendment. How does due process, the quintessential procedural right, come to be interpreted as a guarantee of unenumerated substantive rights?
The logic goes something like this: a substantive law could be so egregiously unjust or beyond legitimate governmental authority that no process, no matter how fair, could make up for it, in which case due process would be violated. And, the courts reason, the violation of an unenumerated substantive constitutional right could constitute just such a breach of due process.
Building on this logic, courts distinguish between what they call “procedural” due process, essentially just normal due process, and “substantive” due process, which comprises those unenumerated rights, the violation of which is so atrocious that it offends the right to fair procedure.
Thus, the due process clause, the text of which says that the government may infringe your liberty only if provides due process, is interpreted to mean something different, not to say opposite: that some abridgments of liberty are unconstitutional, no matter what process is provided.
Justices Sotomayor and Kagan, for example, discuss on page 8 of their dissent in Dobbs how the “liberty clause protects the decision of a woman confronting an unplanned pregnancy.”
The Fourth Amendment actually has both. It starts with a substantive guarantee of the right to be secure in one’s person, papers, house, and effects, then proceeds to a discussion of procedural hurdles the government must meet to overcome that right, like the requirement to obtain a warrant.