Wherefore Substantive Due Process?
I noted in my last post that federal courts have generally avoided the Ninth Amendment as a source of unenumerated rights and have instead developed a counterintuitive, not to say oxymoronic, alternative doctrine dubbed substantive due process.
Where did this doctrine come from? Some argue that the first appearance of substantive due process was in the infamous Dred Scott case, wherein the Supreme Court endorsed something like the idea that depriving Sanford of his slave was a violation of fundamental rights so beyond the power of Congress that ran afoul of the Fifth Amendment’s Due Process clause.
You will generally hear this argued by those on the political right, who want to equate Dred Scott with Roe and Casey, modern substantive due process cases. In this vision, abortion is the modern equivalent of slavery, a blatantly grotesque moral abomination that is somehow nonetheless endorsed by society at large and firmly entrenched in the legal system.
Fetuses equal slaves in this story, and antiabortion activists are like the abolitionists. Enter the Supreme Court, which holds in Roe, without any basis in the constitution’s text, that the unborn have no rights that women are bound to respect.
In Casey, on the other hand, Justice O’Connor traced the advent of substantive due process to Mugler v. Kansas, an 1887 case in which the Court decided it could review the reasonableness of economic regulations under the Fourteenth Amendment’s Due Process clause.1
It may be almost as anachronous to ascribe modern substantive due process doctrine to Mugler as it is to apply it to Dredd Scott, but Mugler arguably did open the door to the later development of economic substantive due process in the 20th Century during the so-called Lochner era.
Lochner v. New York, in which the Court in 1905 invalidated a New York law limiting hours that bakers could work, kicked off a line of cases wherein the Court struck down state and federal laws regulating economic activity, on the theory that such laws invalidated an unenumerated “liberty to contract” supposedly protected by the constitution’s due process clauses.
The Court’s decisions were inspired by a naive 19th century conception of laissez faire economics that was increasingly out of step with industrializing 20th century America and a progressive movement that saw the necessity of a greater role for government regulation of economic affairs.
The Lochner era came to an unceremonious end in 1937 with West Coast Hotel Co. v. Parrish, thanks to the switch in time that saved nine, after Roosevelt threatened to pack the court that was torpedoing his New Deal legislation with progressive justices.
But while Parrish sounded the death knell of the Court’s economic activism, substantive due process got its foot back in the door with Griswold v. Connecticut, in which the Court held in 1965 that an unenumerated right to privacy emanating from the penumbras of the bills of rights protects a woman’s right to obtain and use contraception.
The Court quickly abandoned the patently silly “penumbras” rationale, centering on due process as the constitutional anchor for unenumerated rights. In Roe, the Court left behind both penumbras and the Ninth Amendment, rooting the right to privacy in the Fourteenth Amendment’s Due Process clause:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
On that basis, the Court articulated a wide ranging substantive due process jurisprudence of individual unenumerated rights, to the increasing consternation of the Court’s conservative-leaning justices.
Obergefeld, the gay marriage decision, it’s now obvious, constituted the high water mark of that trend. Thanks to scorched earth Republican tactics, the Court is now dominated by a new conservative super majority, whose decision in Dobbs decisively repudiated the free-wheeling approach to unenumerated rights endorsed by the Kennedy Court.
The future of substantive due process, and of the unenumerated rights it enunciated, is uncertain today. The Court has not repudiated substantive due process outright, at least not yet, but the conservative super majority claims it’s new focus on history and tradition is necessary to rein in the undisciplined judicial activism on display in previous cases like Lawrence v. Texas.
But is the Court’s new approach more retrained, or is it merely activism from the other direction?
In Mugler, the Court considered the defendant’s conviction for violating a Kansas law prohibiting the manufacture of alcohol. Unlike later Lochner era cases, the Court upheld the state law infringing economic liberty, but in doing so, said:
If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.