Substantive Due Process

What is Substantive Due Process?

United States Supreme Court - 1973

United States Supreme Court – 1973

Substantive Due Process is a judicial doctrine that looks beyond procedural due process and allows federal courts to review the substance and reasonableness of federal and state legislation. From a practical standpoint, Substantive Due Process is used almost exclusively against the state governments. As such, the Substantive Due Process doctrine grants federal courts an arbitrary and unlimited power to review and strike down state legislation not to the liking of federal judges.

Substantive Due Process expands the power of the federal courts in two primary ways:

First, Substantive Due Process allows the federal courts to determine, in its own judgment, what “substantive rights” are protected and how comprehensive that protection should be.

Second, once the federal courts have determined what “substantive rights” are worthy of protection, Substantive Due Process allows the federal courts to use Judicial Review to sit in judgment on the wisdom and reasonableness of all state laws that may interfere with these protected, “substantive rights.”

The magnitude of the Substantive Due Process doctrine cannot be understated. Substantive Due Process (along with the Incorporation Doctrine) serves as the boldest act of judicial usurpation in American history.

What provision of the Constitution provides for Substantive Due Process?

Federal courts have used the Fourteenth Amendment’s Due Process Clause as the textual justification for reviewing and striking down state laws that interfere with protected “substantive rights.” Both the Fifth Amendment and the Fourteenth Amendment contain “Due Process” clauses. The Fifth Amendment applies against the federal government and the Fourteenth Amendment applies against the state governments. The Due Process Clause of the Fourteenth Amendment says, “nor shall any State deprive any person of life, liberty, or property, without due process of law”.

Meaning of Fourteenth Amendment’s Due Process Clause

Due Process” traces back to chapter thirty-nine of the Magna Carta and pertains to “process” or “procedure.” Due Process is the procedure by which government must adhere before government can deprive an individual of life, liberty, or property. There is no specific definition as to what legal procedures are required, but it’s understood to center around the right of an individual to be heard as part of a judicial proceeding before the individual may be deprived of his life, liberty or property.

For our purposes, it’s less important to nail down a precise meaning of Due Process than it is to say what Due Process is not. The meaning of Due Process does not, and never has, conceived of a judicial power to strike down state legislation based on substantive grounds or on policy grounds.

Alexander Hamilton – Due Process Only Applies to Process and Proceedings in Courts

Alexander Hamilton made it clear in the New York Assembly shortly before the Constitutional Convention that Due Process merely referred to procedure, and not to the substance of a law. According to Hamilton, “no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.”

The Due Process Clause does not authorize federal courts to review the substance of state legislation and to strike down those laws which do not suit the personal policy preferences of the judges. Aside from this being insane and a tyrannical power grab, no support for this Substantive Due Process position can be found from debates during the Constitutional Convention in Philadelphia, in the state ratifying conventions, by the First Congress, or by those who drafted and passed the Fourteenth Amendment in Congress in 1866.

Judicial Use of Substantive Due Process

Lochner Era and Protection of Economic Liberties

Substantive Due Process arrived on the judicial scene around the beginning of the twentieth century in a series of cases where the Supreme Court struck down state health and safety laws to protect economic liberties. This era became known as the Lochner Era, named after the landmark case, Lochner v. New York, 1905.

Lochner v. New York, 1905.

New York state law said a baker could not work more than ten hours per day, and not more than sixty hours per week. A bakery owner violated this law, was fined, and subsequently challenged the law all the way to the Supreme Court. New York argued the law was a legitimate exercise of the state’s reserved powers to protect the health and welfare of the people of New York. However, the Supreme Court struck down New York’s law, citing abridgment of the employer and employee’s fundamental “right of free contract.”

Whether freedom of contract is an important right that should be protected is another matter. In effect, the Supreme Court created a right out of thin air (freedom of contract) and used it to strike down a perfectly legitimate, constitutional law passed by New York’s legislature pursuant to its reserved powers. Cutting through the legalese, the Supreme Court merely imposed its judgment over that of the state’s legislature.

Post-New Deal – Incorporation Doctrine – Protection of Personal Liberties

By 1937, the Supreme Court had capitulated to President Franklin Delano Roosevelt’s New Deal and got out of the business of arbitrarily protecting economic liberties the judges thought were important, or “fundamental.” From this point on, the Supreme Court shifted its focus toward arbitrarily protecting personal liberties the judges thought were important. Landmark cases, such as Griswold v. Connecticut, 1965, and Roe v. Wade, 1973, were decided based on this new twist on Substantive Due Process.

Griswold v. Connecticut, 1965.

An 1894 Connecticut law banned the use and distribution of, “any drug, medicinal article or instrument for the purpose of preventing conception.” Though the law was rarely enforced, Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, tested the law and was ultimately arrested, tried and found guilty. Griswold appealed her lower court convictions all the way to the United States Supreme Court, which overruled the Connecticut Supreme Court and struck down the Connecticut law.

In its decision, the court discovered a “right to privacy” and determined the contraceptive statute was an inappropriate use of the state’s reserved police powers. In creating protected rights and striking down Connecticut law, the Supreme Court said the, “right to privacy” came from “specific guarantees in the Bill of Rights hav[ing] penumbras, formed by emanations from those guarantees that help give them life and substance.” Cutting through the court’s smoke and mirrors, the Supreme Court was saying the First, Third, Fourth, Fifth and Ninth Amendments, all of which were erected as superfluous restraints on federal power, somehow granted married couples the “constitutional right” to make personal choices about their intimate, sexual relations.

Few people today would doubt the stupidity of Connecticut’s anti-contraceptive law. However, the Supreme Court created a right out of thin air (right of privacy) and used it to strike down a perfectly legitimate, constitutional law passed by Connecticut’s legislature pursuant to its reserved powers.

Getting past this other nonsense about “penumbras” and “emanations,” the Supreme Court merely imposed its judgment over that of the state’s legislature in the same way the Lochner court had done sixty years earlier.

Roe v. Wade, 1973.

Substantive Due Process - Roe v. Wade

Substantive Due Process – Roe v. Wade

Omitting the facts behind the case, the Supreme Court in Roe v. Wade ruled the Due Process Clause of the Fourteenth Amendment created a “right to privacy” that made a woman’s decision to have an abortion a protected, private decision between a woman and her doctor. The Supreme Court, acting as though it possessed the powers of a legislature, decided there should be a test to balance what the court said were the state’s two legitimate interests: protecting the mother’s life, and protecting prenatal health.

Whether abortion should be legal, illegal, or somewhere in between is a difficult and sensitive debate. However, what is not difficult to debate is the legitimacy of the Supreme Court’s decision. As with Lochner, Griswold, and countless other Substantive Due Process decisions, the Supreme Court merely imposed its judgment over that of the state’s legislature.

Logic of Roe v. Wade and Substantive Due Process Decisions

On what basis was abortion enshrined as a fundamental, constitutional right?

The Fourteenth Amendment, a constitutional amendment that was never legitimately ratified, that was meant to improve the condition of recently emancipated slaves and punish individuals who participated in the Confederacy, that includes a provision for due process of law (which even Alexander Hamilton acknowledged cannot be anything other than a procedural right), takes the federal Bill of Rights (which was a superfluous restraint on federal power – intended to strictly limit the powers of the federal government) and turns it inside out, and creates a new judicial doctrine granting federal courts the power to determine the wisdom of state laws in all fifty states. With this background, the Supreme Court decided 7-2 to enshrine abortion in the Constitution.

You can’t make this stuff up. There’s no hidden meaning or complexity buried in the Constitution that justifies the Supreme Court’s reasoning in Roe v. Wade, or in other Substantive Due Process cases. The Supreme Court made all this stuff up out of thin air.

The proper role of federal judges had always been to determine whether a law violated the Constitution, not whether a law was unwise or bad public policy. With Substantive Due Process, federal judges, and the nine politically connected lawyers on the Supreme Court in particular, assumed the power to strike down any state law not to their liking.

Judicial Tyranny – Plato’s Philosopher Kings

With the introduction of Substantive Due Process in the early twentieth century, federal judges turned Alexander Hamilton’s statement about the procedural meaning of Due Process on its head and began sitting in arbitrary judgment on the wisdom of state statutes. If federal judges did not like certain state statutes for whatever reason, they could strike these laws down on Substantive Due Process grounds.

The judicially created Substantive Due Process doctrine, along with the judicially created Incorporation Doctrine, mark the rise of Plato’s Philosopher King to stand guard and check the will of the people. Democracy has its vices, which is why the framers of the Constitution established a federal, constitutional republic with delegated, enumerated powers. The state governments were the more democratic institutions where legislatures could pass laws as they pleased, subject to limitations in their respective state constitutions and bills of rights. However, no authority was ever delegated to the federal courts to assume the powers they have assumed under Substantive Due Process and the Incorporation Doctrine. This authority certainly was not delegated when the Constitution was ratified, and it certainly was not delegated when the Fourteenth Amendment became law. Nine ivy league lawyers with political connections have usurped the power to determine policy in all fifty states, and step in and strike down those laws not to their arbitrary, personal liking.

United States Constitution – Fourteenth Amendment – Due Process Clause

…nor shall any State deprive any person of life, liberty, or property, without due process of law;