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Substantive Due Process Is Ready for Takeoff

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the  right to assisted suicide could be found in the Constitution.  The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter,  because laws against the practice had long existed.

But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either.  In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had  itself not met the Glucksberg test. But the right of  abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process. Even more troubling, however, Kennedy did not even reaffirm Glucksberg outside the context of rights of sexual autonomy.  He said Glucksberg “may” offer the correct test there,  which suggests he probably thinks it does not.

But whatever Kennedy personally thinks, Clinton’s filling of the Scalia vacancy means the death of legal restraints on a doctrine that Nelson Lund and I have argued has the potential to become “the  most anticonstitutional doctrine” in all of constitutional law. Without rooting the choice of fundamental rights in tradition or, even better, in the text of the Constitution itself, justices will look to their own preferences.

That subjectivity does not imply that a majority of Supreme Court will immediately create their own ideal set of rights. Modern justices may well be concerned to avoid strong political backlashes. But the result will not be law-abiding justices, just cannier and in some ways more dangerous ones.  Indeed, the most effective way for the left to replace traditional moral principles is to “boil the frog.” Year by year, decade by decade, new constitutional rights can chip away at traditional moral principles, preventing the possibility of any comeback.

And I have a sad prediction for my libertarian friends who welcome the expansion of substantive due process:  the new Court Clinton creates will be far more likely to give constitutional protection to positive economic rights to help from government than to economic liberties against the state.

Reader Discussion

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on October 09, 2016 at 16:22:21 pm

Look, we all know the junk that some of the left-wing justices which are result oriented. But that does not excuse trying to ignore clause for originalists. The clause is quite clear that a persons liberty cannot be taken without due process of law. How do you suggest a originalist define the term liberty? It seems almost impossible that the Founders believed that only meant prison, liberty included all those acts which do not harm other people (a specific example given by the Founders was the right to wear a hat). Secondly, what is due process of law? I think it's clear that meant you had to have presentment of being accused of a crime before a neutral judge and the option of a jury of your peers. When a legislature by mere fiat declares your acts of liberty to be illegal that takes your Liberty. If the legislature were to make it illegal to wear a hat, would that not limit your liberty? Just because some left-wing justices would do bad things doesn't justify originalists from ignoring the constitution too.

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Devin Watkins
on October 09, 2016 at 18:28:00 pm

No, the issue of a hat, quite trivial AND counter to practices that were "“deeply rooted in this Nation’s history and tradition.” is of an entirely different order than same-sex marriage, transgender rights, the right to have the State pay for gender reassignment surgery, etc, etc.

The use of the "hat" issue is again an indication of the "canniness" (McGinnis' term) and *cleverness* (my preferred term) which has so distorted not just the meaning of the text in the constitutional but the very "epistemology" of the citizenry's understanding of rights, constitutional or otherwise.

What is to prevent an ambitious (ideologically / personally?) libertarian "engager" from divining new rights under the Due Process Clause? Based on some writings from some of the leading libertarian members of the bar / academy, I think it quite probable that they would, in fact, actively "engage" with the Constitution AND their own personal beliefs. Can you not imagine these same libertarians, who believe that there is a universal right to cross any border, to make a home in any nation that you so choose, deciding that the Congress (or even the Executive) can not limit the *rights* of foreigners to take up domicile here, or even to submit to a requirement, that once here, they must undergo certain tests or actions in order to procure citizenship.
Silly - I have heard this very thing from some libertarians. Heck, just look at "tranny" bathroom rights, in some ways an inconsequential matter, yet significant in the fact that it is CLEARLY not "deeply rooted in this Nation’s history and tradition.”

The *clever / canny* Black Robes are apparently, at will, to create / negate any rights / obligations that fit their fancy and without so much as "a by your leave, Sir."

Look at the expansion of the "rights" created under the P&I Clause. In some instances, these new rights were clearly not allowed or even envisioned by the Drafters of the two Clauses. Yet, we now find ourselves being told that our traditions, indeed our laws / constitution are not to be considered. what is paramount is whatever fulfills the ideological ambitions of the Black Robes.

To accept such a form of both political and cultural governance is to deny to the citizenry a reasonable participation in "politics" classically understood. Substantive Due Process is the petri dish of rights, start with some questionable facts, statistics, anecdotes, throw in a bit of clever legal logic / legerdemain, and Voila, the growth of rights is on par with the rapid multiplication of some yeast strains.

Yeast, at least, may be used to ferment good alcohol; what will this yeast yield. Based upon results so far, it is neither as tasty nor as comforting as a damn good bourbon!
Heck, all it yields is a constant hangover without the benefit of a good buzz!!!

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gabe
on October 10, 2016 at 01:33:37 am

The issue of the hat might seem quite trivial to you, but it is not to a Quaker. The explicit legal recognition of such a right to wear a hat is not “deeply rooted in this Nation’s history and tradition” and yet it was understood at the founding to be a right that was protected. But you are right that it is VERY different kind of right than a “right” to “same-sex marriage, transgender rights, the right to have the State pay for gender reassignment surgery, etc.” The right to wear a hat is a natural right (which has no demand on the government because it pre-exists government), while the rest of these demand the government recognize a marriage, provide money and by transgender rights I assume you mean to use the bathroom of their choice even against the wishes of the owner which violate property rights. None of these are natural rights of the kind I speak of.

When the Bill of Rights was being considered by congress Mr. Sedgwick of Massachusetts said: “If people freely converse together they must assemble for that purpose; it is a selfevident, unalienable right which the people possess; it is certainly a thing that never would be called in question.” 1 Annals of Cong. 759. He said they “might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” Id. John Page of Virginia responded:

“[L]et me observe to him that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority.” This was a reference to the trial William Penn (who founded the state of Pennsylvania which is to this day named after him), who refused to remove his hat in the trial of him and William Mead. The jury refused to find him guilty and the judge found the jury in contempt of court for failing to find Penn guilty.

Why do I keep mentioning it besides the fact that it was the exact example used by the founders? It provides a great example of a natural right, one that pre-exists government and one in which the wearing of a hat does no harm and yet a government official in the past has tried to prohibit it. The other examples given by Mr. Segwick would work as well. What if the legislature of a state were to pass a law that required everyone go to bed by 11 p.m. unless they had approval of the government. Such a mandatory bedtime would violate everyone’s natural rights because the time that you go to bed does not harm other people.

As to your question: “What is to prevent an ambitious (ideologically / personally?) libertarian “engager” from divining new rights under the Due Process Clause?” Nothing, I fact I hope they do find new rights under the Due Process Clause, as long as they properly limit those rights by the category of rights that the Due Process Clause enumerates—those of life, liberty and property (which together encompass all the natural rights). A liberty to go to bed at any time you choose is a right fully protected by the Due Process Clause, it may not be enumerated but that doesn’t mean it isn’t protected.

A person who is not a citizen of this nation has no right to enter it (although citizens do have such a right, and the right to move freely within it). Congress is explicitly given the power over naturalization to decide what a person must do to become a citizen (or to decide someone cannot become a citizen). Again this, because of its interactions with government, can never be a natural right which must pre-exist government.

The phrase: “deeply rooted in this Nation’s history and tradition.” Is junk and has nothing to do with the original understanding of the due process clause. The nation didn’t even exist when the due process clause was written and as such it could not have possibly referred to this at the time of the founding. Such a phrase is a modern one, created by non-originalists to explain why they supported some due process rights but not other economic due process rights.

I don’t know what your problem with the Privileges and Immunities Clause is. There isn’t really any specific rights beyond the right to travel that the Court has recognized in that clause, it only prevents discrimination against out-of-state people. If you’re talking about the Privileges OR Immunities Clause that is currently considered by the Court almost meaningless protecting only things like the right to protection in the high seas.

What is the problem with more natural rights? Natural rights limit the powers of the government, they prevent the government from doing bad things. You just mistakenly think that just because I do support a substantive due process clause that means ANY right can be properly invoked under that. That is wrong. The clause limits the rights which are to be protected (life, liberty and property), going beyond that is to violate the constitution as surely as it is to ignore the clause.

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Devin Watkins
on October 10, 2016 at 08:42:13 am

Rights are complementary to delegated powers. We have a federal right to do anything Congress does not have the delegated power to restrict. Thus, a federal right to abortion because Congress does not have the delegated power to restrict medical procedures. What about rights with respect to state delegated powers? States have the police power to legislate for the health, safety, morals, and welfare of their inhabitants. That would seem to be more restrictive of rights. But we have a problem if we interpret that police power too broadly. The Fourteenth Amendment extended the jurisdiction of federal courts to all rights between a state and its inhabitants. All rights, including the Ninth Amendment, although the federal courts have erroneously failed to "incorporate" all of them.

"Procedural due process" is about how much of a due process right we have. Procedural due process is about what kind of due process. This we have a procedural due process right to a trial by jury, but a substantive due process right that the jury be of twelve.

Don't confuse a license to marry with sexual behavior. Texas v. Lawrence decided a state does not have the authority to punish same-gender sexual behavior. If it licenses marriage then it follows it must license same-gender marriage, or not license any kind of marriage. Marital behavior is no longer forbidden if it is not licensed.

Roe v. Wade essentially found that am unborn fetus does not have the right not to be killed because it is not a "person" with rights it can assert in a court. That goes back to the common law as set forth by Edward Coke in his Institutes in the 1600s. See . http://constitutionalism.blogspot.com/2007/09/constitutional-views-on-abortion.html

The rights protected in the Ninth Amendment are mostly the common law rights. That and the Tenth Amendment provide that powers not delegated to states are reserved to the people. So the question for federal courts is, what powers are delegated to the states. That is how we get the "rational basis" test. State powers must be rational. We have a right to rational laws.

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Jon Roland
on October 10, 2016 at 11:04:04 am

For a comprehensive list or rights see http://constitution.org/reform/us/immunitates.html

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Jon Roland
on October 10, 2016 at 11:15:38 am

"The phrase: “deeply rooted in this Nation’s history and tradition.” Is junk and has nothing to do with the original understanding of the due process clause. The nation didn’t even exist when the due process clause was written and as such it could not have possibly referred to this at the time of the founding."

C'mon Devin! I enjoy and respect your comments too much to not take you to task for this comment. This is too clever of you. surely, you understand that the United States was not created ex nihilo; that it, and it's theory of governance was based upon the "long traditions" of the "Rights of Englishmen" Everything from our common Law to our cultural practices and preferences were infused with the understandings of "free" Englishmen. In his response below, Mr Toland cites Judge Coke in support of abortion (wrong justification to my mind, BTW). the founders also cited Coke and other long dead English jurists.

Simply put, there is no escaping tradition; attempts to do so would, to my mind, indicate an unwillingness to recognize the role of a community in "politics" (classically understood) BECAUSE tradition may only be perceived / understood as an operant of a community. This would appear to be a trap that the Libertarian, so enamored of the rights of the INDIVIDUAL, is prone to fall into.

I'll leave it with this: Let us be careful that we do not turn ALL natural rights into positive rights BY virtue of a "rational basis" analysis.

Simple example: Hats - if one has a natural right to wear a hat; does one not also have a natural right to not wear a hat.
Consider a government mess hall on a US Army base. Ought not the government be able to require that mess stewards wear proper headgear? Yep! Is this now a natural or positive right, one that is subject to modification or diminution given certain circumstances even when the government not a private restaurant owner is involved.

gotta go - the local golf course needs more divots!

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gabe
on October 10, 2016 at 12:11:50 pm

Yes, English the common law tradition is something the Founders did rely upon. Is the phrase “deeply rooted in this Nation’s history and tradition" really meant to only apply to some kind of English common law rights? What exactly would those be? It's possible to go that way, but seems fairly divorced from the text given the explicit textual hooks of "life, liberty, and property" in the clause. But either way, it would still be about what occurred prior to the ratification of the 5th Amendment not the American tradition after ratification.

There is no natural right to government employment, so the government is free to condition employment on giving up the normal rights to freedom of speech, etc. as long as that is within the scope of their employment. The dresscode of army personal on a military base would fall within that.

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Devin Watkins

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