How I Learned to Stop Worrying and Love Substantive Due Process – Sort of

Robert H. Bork

Robert H. Bork

It is something of a rite of passage for the libertarian-minded to go through a flirtation with Ayn Rand. Her work is popular and accessible enough to lure students in at a young age and provide their first introduction to ideas on liberty. I went through a similar flirtation with Robert Bork.

I no longer recall what works of constitutional theory I first read, but some of Bork’s writings certainly made themselves felt on my impressionable young mind. Like many, I came naturally to accept the Borkian dogma (and Bork was hardly alone in promoting this view) that “substantive due process” was bunk. The doctrine was, he said, “wholly without limits, as well as without legitimacy,” and approvingly cited John Hart Ely’s felicitous line that substantive due process is “a contradiction in terms – sort of like ‘green pastel redness.’”

Sounded good to me, and the condemnation of substantive due process became something of an article of faith that was not deeply considered, even when I began to read constitutional theory more seriously. Substantive due process – a term invented by New Deal critics of the conservative constitutional jurisprudence of the early twentieth century and ironically embraced with fervor by conservative critics of the liberal jurisprudence of the mid-twentieth century – was coined precisely because it was an oxymoron, tarring constitutional law through the process of labeling it, a venerable rhetorical strategy.

The Fifth and Fourteenth Amendments to the U.S. Constitution include the provision that the government shall deprive no person of “life, liberty, or property, without due process of law.” The constitutional clause played an important role in the early twentieth-century line of cases associated with Lochner v. New York (1905), which struck down economic regulations for impairing a liberty of contract, and in Roe v. Wade (1973), which struck down abortion regulations for impairing a right to privacy. The doctrine suggested that there were substantive limits to how government officials could restrict individual liberty, and not just a set of procedures that needed to be followed when those officials wanted to do so. Or, as Bork complained, the transformation of the clause “from a procedural to a substantive requirement” was an “obvious sham” that allowed judges “to write their personal beliefs” into constitutional law.

The scales first fell from my eyes when I started to read the literature in Lochner revisionism, and my earlier article of faith did not hold up to my (some might say, obsessive) reading of the historical sources. For over two decades now, scholars in law, history and political science have questioned the standard Progressive narrative (carried forward by late-twentieth century conservatives) of a conservative Court that invented doctrine to serve corporate interests. The jurisprudence of the late nineteenth and early twentieth century has been shown to be more deeply rooted and more complex than its critics were willing to admit, and courts were often much more deferential to legislative judgment than Progressive heroes like Justice Oliver Wendell Holmes had let on.

Thomas M. Cooley

Thomas M. Cooley

Recovering the language of constitutional law helps. Howard Gillman correctly pointed out the long tradition of “police powers jurisprudence” that culminated in the politicized debates of the Progressive and New Deal era. While the neologism of “substantive due process” was useful to making that tradition seem ridiculous, it obscured what the legal arguments of people like Michigan’s Thomas M. Cooley were actually about. When government regulated private behavior, it was invoking its “police powers,” the power to make rules to protect the health, safety, welfare and morals of the community. Lawyers, judges, and constitutional drafters understood that legislatures could make rules for the common good, but they also appreciated that politicians could abuse the lawmaking power by making rules that did not serve legitimate public interests and that only served to advance the private interests of the friends and allies of those with political power.

The generalized test for evaluating the legislative authority for imposing any particular restriction on individual liberty was whether the purposes of the law pursued a legitimate public interest and whether the particular regulation in question was credibly designed to advance that legitimate public purpose. If yes, then statutes should be regarded as constitutionally valid, even if misguided. If no, then the statute should be understood as an unauthorized abuse of the legislative power and beyond the constitutional authority with which legislators were empowered to act. There was relatively little difference between how judges analyzed specific constitutional rights provisions and how they thought about the scope of the police powers generally. What was a violation of the freedom of speech? A regulation that served no legitimate public interest.

There is much to admire about the idea of the police powers and how that jurisprudence understood the limits of political power in a constitutional republic (as David Bernstein has recently detailed). And recognizing the scope and depth of the police powers jurisprudence makes clear that the “obvious sham” was perpetuated by the critics rather than by the judges. The Progressives simply discarded what had been a deep feature of the American constitutional limitation on legislative power. A great deal of modern constitutional doctrine has been invented since the New Deal in order to provide a (somewhat ramshackle) substitute for what had been lost. The dismissal of the bona fides of the so-called “substantive due process” doctrines had less to do with the intellectual requirements of originalism than the intellectual legacy of the Progressives.

But that is not to say that the police powers jurisprudence was without its problems. Gillman argued that the world of police powers constitutionalism has been irrevocably lost under the pressures of industrialization and ideological change. We have no choice but to feel our way forward with second-best alternatives given our modern disagreements over how political power can appropriately be used. What nineteenth-century jurists would have regarded as the outrageous prostitution of political power to private interests and governmental meddling with the details of everyday life, twentieth-century jurists recognize as the bread-and-butter of modern liberalism (in the non-partisan sense). Police powers jurisprudence did put some trust in the judgment of courts to monitor what legislators did and to question the rationales that were offered to justify impinging on the free action of private individuals. How that judgment is exercised can always be challenged, and the thrust of Progressive ideals was to put more faith in the discretion of legislators than of judges.

All that suggests that if we have doubts about substantive due process, we should do better than to dismiss the notion as a ruse and an internal contradiction. We should instead think seriously about how we should balance legislative and judicial discretion so as to best protect liberty while advancing the public good, and we should focus our attention on the substantive content of the law. If there have been difficulties with how judges have deployed police powers jurisprudence, they have had less to do with make-believe rights or judicial efforts to legislate their policy preferences than with fundamental societal disagreements over what the legitimate uses of political power are and what kinds of private actions should be shielded from governmental intrusion. It would be most useful to focus our attention on what the reasonable justifications for the exercise of government power might be, and whether we are willing to allow judges to enforce limits on legislative discretion in the absence of political consensus about how governmental power should be used.

Reader Discussion

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on April 04, 2014 at 20:10:08 pm

a) "How that judgment is exercised can always be challenged", b) and the thrust of Progressive ideals was to put more faith in the discretion of legislators than of judges."

While #a was and is true today, can we still say that #b is true?
Or better still, that the Judges themselves actually accepted such a limitation on their role.
Reading Michael Greve,s "Upside Down constitution" he makes a credible case that, at least, in some instances the Judges embarked on their own to "reconstitute" Federalism after the passage of the 17th amendment. An argument may be made that they proceeded to do the same in other areas.

Would you say that the Progressives no longer look first to the Legislatures but rather to the courts for their agenda's implementation - or at least that they view the Judiciary as the instrumentality through which their legislative agenda is codified before the people.

Geez, I did not want to seem too critical - I did like the essay and the perspective offered of the early courts. Had not thought of it quite that way - makes sense.

BTW: Your book on Judicial supremacy - is this a historical take on the matter or are you attempting to justify it? It is an intriguing title - if i knew more I would consider buying it.

take care

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on April 05, 2014 at 01:58:40 am

I tend to think the Progressive moment of favoring greater legislative discretion was transitory, and I discuss that a bit the judicial supremacy book. The book is a historical, political analysis of tensions between courts and elected officials, and why politicians tend to like letting the courts do some of the dirty work.

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Keith Whittington
on April 06, 2014 at 14:54:31 pm

"It would be most useful to focus our attention on what the reasonable justifications for the exercise of government power might be, and whether we are willing to allow judges to enforce limits on legislative discretion in the absence of political consensus about how governmental power should be used."

Would it also be useful to focus a little attention on the question whether a referee appointed by the team with the most winning record would be a contributor to fairness the game of politics, or a hinderance? Or if one team always gets the exclusive right to appoint the referees? Or if only the extremists in political society get the appoint the referees?

Which teams am I asking about? The Democratic and Republican parties in the first case. The government vs the sovereign citizens in the second. The progressive and conservative extremes in the third.

Is it possible for a system so obviously biased to be just?

Your discussion is the story of your personal awakening to the truth that a constitution cannot reasonably be expected to define all of the rules governing political behavior, and that some personal human judgment is necessary, which means that the American form of government is heavily dependent on the virtue of the citizens. But how much of the problems of government are not caused by lack of civilian virtue, but by structural flaws in the design of government, and what can be done to address those?

I suggest that structural flaws are a much more serious problem than civil virtue. People are what people are. A system that fails to accommodate the realities of human weakness is a system that eventually fails to work at all.

The conservative approach to problems of government, I am learning, is to ignore flaws in the design of government, and to blame those problems on the public for lacking civil virtue. I think that tendency is highly problematic. That behavior is offensive in general and counterproductive as well. It contributes to factionalism. I don't mean to be rude, but I do need to be honest. Unless I am misreading your commentary, that seems to be what you are getting at when you refer to at least some of the origins of political problems as being rooted in "fundamental societal disagreements" and "absence of political consensus."

If the disagreements and the absence of consensus have to do with a lack of public direction in acting to repair deep structural flaws in the core design of government, I might agree. Democracy is cursed by poorly distributed and inaccurate information. Factionalists exacerbate and take full advantage of that weakness, which is a problem by itself, and redirects otherwise productive resources to playing finger pointing games. Public leaders get trapped in the gamesmanship of factionalism instead of working towards a more just society. Claiming that there is a failure of civil virtue just gives the factionalists another rationale for promoting their particular brand of factionalism.

Would it not be more rational and productive for constitutional specialists to first diagnose specifically and accurately what the structural flaws are and what needs to be repaired, and then address how to distribute that information accurately and fully to the whole of the decision making public?

For example, in the case of a biased Court, I wonder if there are constitutional governments that have a method of appointment that produces an objective and capable court. Could those constructs be applied to the American Constitution? If they could, how could a proposal for correction be submitted to the general public in such a way that the public and the public leaders would respond to it positively?

Meanwhile, I am glad to see you contributing to this forum, Keith. Like a lot of folks in the lay audience, I enjoy reading the many interesting ideas from yourself and other constitutional scholars. Thank you for taking the time to share your thoughts, and I look forward to hearing more from you.

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Scott Amorian
on April 08, 2014 at 17:17:51 pm

Bork was correct about the obvious, the due PROCESS clauses are, by definition, about PROCEDURE, not substantive rights. It is self-evident to anyone who isn't trying to force their own policy preferences into the const, like abortion, laissez faire economics, etc.

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on August 15, 2017 at 20:36:29 pm

This is a very thoughtful article, and I appreciate the explanation of the concept of "police powers" and their limited nature.

However, there's a difference between recognizing, as a principle of justice, that police powers are limited and pretending that the 14th Amendment says as much. Even if we agree that New York's labor laws were an unjust restriction on the right of private persons to make contracts that they see as mutually beneficial, and even if these laws don't advance any legitimate public purpose, we have not yet shown that the U.S. Constitution has anything to say on the matter. The U.S. Supreme Court is not supposed to reason based on abstract principles of justice like the ones you (very convincingly) lay out here. Rather, the Supreme Court is supposed to interpret the text of the law, and the law in question is about procedure, not process. That's why, even if the philosophy behind "substantive due process" is sound, any jurisprudence that claims to find such a doctrine in the 14th amendment is laughable.

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on February 16, 2018 at 01:45:48 am

The very phrasing “DUE process” of Law implies something more restrictive than “mere” process of the rules as contemporaneously prescribed. Few would sacrifice perceived moral entitlements such as life or liberty simply because extant “LAW” dictates such surrender in accordance with the instant fact pattern as interpreted by reasonable people apprised of all available evidence. It is precisely because very little, if anything, is “self evident” that interpreting courts exist at all. Let us not handcuff a power checking branch with populist, or democratic, legislative logic.

That said, I remain dubious of the substantive ideal. Nevertheless... one (1) of OPPOSING positions can scarcely be deemed self evident, regardless of the stature or hubris posssed by the proclaimant.

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Fitz Grisly

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