Why don't people like substantive due process? [Archive]

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Bill The Cat

11-17-2005, 01:36 PM

DSYoungEsq

11-17-2005, 07:02 PM

So, as I see it:

(1) Everyone (proponents and opponents) agrees that the Constitution explicitly gives certain rights.

(2) Everyone agrees that of the rights explicitly listed, they can be infringed given a good reason (e.g. freedom of the press could be suspended during wartime).

(3) People seem to disagree on whether the Constitution implies certain other rights (e.g. right to privacy). Constructionists would say no, originalists would say some, and others say yes (via the Ninth Amendment).

(4) Those who believe in substantive due process believe that the implied rights in the Constitution should only be infringed in the same cases as the explicit rights. Those who don't believe in substantive due process believe that the implied rights can be infringed with a lower standard.

Have I got the two sides of this argument down, or am I missing something?

From my perspective, it seems like just about everyone agrees on #4 -- if we have rights, they should not be infringed without reason -- but that the major disagreement is actually in #3 -- whether the Constitution implies we have those rights or not.

Am I missing a significant argument about substantive due process?

(I'm not a lawyer, so go easy on me)
Let's start by understanding what "due process" is. It has two meanings as used in the Constitution in Amendment V and Amendment XIV. At its most basic level, it means the process you are entitled to before you lose life, liberty or pursuit of happiness. Thus, did you get a fair hearing before a neutral arbiter? Did you get to call witnesses? Did you have a chance to appeal the ruling? We are always entitled to this "due process" regardless of what particular aspect of life, liberty or property is being taken away from us. Obviously, the amount of process to which you are due varies depending upon the severity of the deprivation intended by the government. Thus, you don't get an automatic appeal to the highest court of your state on your claim that the police officer shouldn't have ticketed you for going 35 in the 30 zone, but you might if you've been adjudged guilty of a capital crime and sentenced to death. You will only wish you could die when the points hit your license and the spousal unit sees the new insurance bill. :p

We call that aspect, redundantly, "procedural due process."

Pretty much from the beginning of the nation, there has been a sense in the juridical system that it has the duty and right to protect the people from attempts by the legislature to infringe upon the "natural rights" of man. Political thought in the 1600's and 1700's often held that these natural rights were inherent and couldn't be taken away or given away (see the statement reflecting this thought in the Declaration of Independence: "they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.") This concept lead naturally to an assertion that the courts were the guardians of these natural rights. The concept was put forth as early as 1798 (see Calder v. Bull (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=3&page=386), 3 U.S. (3 Dall.) 386 (1798)). Justice Chase asserted that Natural Law, as well as the specified limits in the Constitution, restricted governmental power. Justice Iredell asserted in opposition that the Constitution's limits prevented the Court from using Natural Law to overturn legislation. Thus was born the same debate still engaged in by the justices today.

We won't go into a long, boring review of early 19th Century development of the concept of substantive limits on legislative power; a somnolent audience isn't a positive goal. Suffice it to say that the concept gained some attention in 1857 when it was part of the basis for the decision in the Dred Scott (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=60&page=393) case (60 U.S. (19 How.) 393 (1857)). Among the reasons in support of the decision was an assertion by Chief Justice Taney that Congress had no power to interfere with the vested "rights" of the owner of a slave; doing so deprived the owner of his "property" without "due process." In short, there is no process by which the property right could be taken away because it wasn't given to Congress in the Constitution. After the Civil War, this concept gained steam because of the passage of the Fourteenth Amendment, which incorporated the same "due process" language of the Fifth Amendment, but which did so with what some felt to be an implied broader meaning, given its context.

At the turn of the century, this philosophy was expounded in what became known as "substantive due process." With the decisions of the Court in Allgeyer v. Louisiana (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=165&page=578), 165 U.S. 578 (1897) and Lochner v. New York (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=198&page=45), 198 U. S. 45 (1905), state statutes were struck down as unconstitutional because the majority of justices, in their opinions, found that they had no legitimate governmental purpose. To reach this conclusion, the following logic is used:

1. "Liberty" means more than just freedom to move around; it means the ability to engage in day to day activities without fetters.

2. "Liberty" therefore includes the ability to contract freely with another person in whatever manner one chooses.

3. The state has no ability to restrict this "liberty to enter into contracts;" it could not enact laws that did not bear a reasonable relationship to a legitimate governmental purpose.

4. A law which infringed this "liberty to enter into contracts" violated the process due a person.

5. Therefore, the law was unconstitutional.

The Allgeyer court struck down a Louisiana statute that prohibited giving effect to a marine insurance policy that wasn't issued in compliance with state law. The Lochner court struck down a New York statute that limited the hours a baker could be forced to work (60 a week or 10 a day!). Because New York didn't specifically enact a statute that applied to a legitimate end, the law was doomed, even though it could certainly be argued that the law was intended to serve the more legitimate purpose of "public health."

Again, it isn't within the scope of the OP to go into the ins and outs of this "substantive due process" concept. Suffice it to say that the concept was used on numerous occasions between 1900 and 1937 to invalidate state and federal laws that the justices felt improperly infringed upon the "liberty" of men to engage in economic activities of one sort or another. Unless the state could document that the law in question accomplished a legitimate end (see the opinion in Muller v. Oregon (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=208&page=412), 208 U.S. 412 (1908) in which then attorney Louis D. Brandeis wrote a "brief" that contained a detailed justification of a state statute on work hours on the basis that it addressed a legitimate state interest in the health of women workers), or could show that the regulated business was one in which there was an inherent "public interest," the law would be invalidated.

Lest we automatically gain the bad taste in our untainted mouths that jaundiced law students have for this discredited concept, it should be noted that the concept was also used to invalidate social legislation at times as well. For example, an attempt by Nebraska to prohibit teaching in any language other than English was struck down as infringing the "liberty" to make educational decisions. The Court also used the concept to strike down laws that infringed upon the right to free speech (Stromberg v. California (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=283&page=359), 283 U.S. 359 (1931), e.g.). But it was the Court's reluctance to allow states to engage in economic legislation that drew the ire of opponents like Justice Oliver Wendell Holmes, who noted acidly that "[t]he 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."

We know how it all turned out. The country, facing economic crisis, turned to the Democratic Party to bail it out. Democratic legislatures and a Democratic Congress attempted to engage in wholesale economic restructuring. The Supreme Court stood in the way, striking down law after law on the basis that it infringed upon one or the other of the "liberties" of men. The President, frustrated, proposed legislation whereby the Court would grow in size substantially, allowing a solid majority of hand-picked justices to be appointed, justices which would not invalidate the laws being passed. The plan never passed, but in large part because Justice Owen Roberts began voting with the dissenters to the concept of protecting contractural rights. This was the famous "switch in time that saved nine."

Beginning with West Coast Hotel v. Parrish (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=300&page=379), 300 U.S. 379 (1937), the Court began to throw away the concept of "substantive due process." It explicitly rejected the decision previously reached in Adkins v. Children's Hospital (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=261&page=525), 261 U.S. 525 (1923), and allowed the state of Washington the power to regulate the relation of employer and employee. The concept had the last nail put in its coffin the next year when Justice Stone wrote the opinion in United States v. Carolene Products Co. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=304&page=144), 304 U.S. 144 (1938), declaring:

the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless ... it is of such a character as to preclude the assumption that it rests on some rational basis... (id. at 152)

Of course, no such well-used concept is ever totally dead. In the very same opinion, Justice Stone, in a famous footnote, kept alive the concept. In certain cases where Constitutional prohibitions, such as found in the Bill of Rights, or the need to protect discrete and insular minorities, requires "a more searching judicial inquiry." This has been fleshed out, now, to the so called "strict scrutiny" test. When legislation affects "fundamental rights," or discriminates on the basis of a "suspect classification," the legislation will not be considered constitutional unless it is necessary to accomplish a compelling governmental interest.

How is this different? Some would argue that it isn't. Indeed, from the side of a conservative approach to constitutional law, one could assert that this is "substantive due process" for the liberals, protecting individual social rights as opposed to corporate economic rights. And, given how the concept is applied, one would be hard pressed to disagree. When a classification that draws a line on the basis of race is sometimes unacceptable (no segregated buses) and sometimes acceptable (affirmative action is okay), it is pretty clear that it is the personal ideology of the justices that drives a decision into what is a "compelling state interest" and what is "necessary" to promote it.

Nevertheless, there are no real advocates of "substantive due process" any more. The concept that there are Natural Rights to which the Constitution gives protections, and that these rights are inalienable, and that the Court's duty is to protect them against the legislatures has died a natural death. Even in the debate over the Ninth Amendment, no one is trying to search through the waters to find unasserted rights and decide that these are actually natural and inalienable.

Bricker

11-17-2005, 07:49 PM

Nevertheless, there are no real advocates of "substantive due process" any more. The concept that there are Natural Rights to which the Constitution gives protections, and that these rights are inalienable, and that the Court's duty is to protect them against the legislatures has died a natural death. Even in the debate over the Ninth Amendment, no one is trying to search through the waters to find unasserted rights and decide that these are actually natural and inalienable.

Remind me -- on what grounds was Lawrence v. Texas decided?

Polycarp

11-17-2005, 08:15 PM

Perhaps Mr. Justice Oliver Wendell Holmes Jr. may shed some light on the issue. Here's an excerpt from his dissent in Lochner:

I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

Hamlet

11-17-2005, 08:36 PM

We won't go into a long, boring review of early 19th Century development of the concept of substantive limits on legislative power; a somnolent audience isn't a positive goal. Suffice it to say that the concept gained some attention in 1857 when it was part of the basis for the decision in the Dred Scott (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=60&page=393) case (60 U.S. (19 How.) 393 (1857)). Among the reasons in support of the decision was an assertion by Chief Justice Taney that Congress had no power to interfere with the vested "rights" of the owner of a slave; doing so deprived the owner of his "property" without "due process." In short, there is no process by which the property right could be taken away because it wasn't given to Congress in the Constitution.Dred Scott had nothing to do with Substantive Due Process. It did not hold that "there is no process by which a property right could be taken away because it wasn't given to Congress in the Constitution. It wasn't until Bork, Scalia, and, eventually Bush, tried to disparage the idea of SDP by intimating that Dred Scott was SDP that it became an issue whatsoever.

Polycarp

11-17-2005, 09:09 PM

There's a very simple explanation. "Substantive due process" is the term applied to what those "activist judges" do when they "make law instead of interpreting law."

With the amount of obfuscation placed on the use of the term, it seems as simple an explanation as any, albeit a touch sardonic.

DSYoungEsq

11-17-2005, 09:27 PM

Dred Scott had nothing to do with Substantive Due Process. It did not hold that "there is no process by which a property right could be taken away because it wasn't given to Congress in the Constitution. It wasn't until Bork, Scalia, and, eventually Bush, tried to disparage the idea of SDP by intimating that Dred Scott was SDP that it became an issue whatsoever.
1. While the Dred Scott decision is boring reading, it is wrong to ignore in it that which is buried deep, on the theory that it isn't worth seeking out.

2. Chief Justice Taney speaks to the subject as follows: But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government [60 U.S. 393, 450] can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

[examples omitted]

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

This is substantive due process at its most basic. The Chief Justice is placing the "property" right of the owner as unable to be abrogated by the act of Congress in setting up the organization of the federal territory under the Missouri Compromise. It isn't a matter of procedural due process; the Court isn't questioning whether or not there was a fair application of a valid law; it is striking down the whole organizing statute on the basis that it exceeded the valid powers of Congress when it results in the termination of the relationship of owner-property. Can't get much more substantive than that.

3. Contrary to your assertion, the first I learned about the concept that this was one of the underpinnings of the decision came from a hornbook in 1983, and I'm willing to bet was included in the 1978 version of the book. Nor is it particularly clear to me why you think someone on the "right" end of the spectrum would find it important to manufacture the claim that the decision was based upon a discredited theory of constitutional law...

Bill The Cat

11-18-2005, 12:52 PM

there are no real advocates of "substantive due process" any more.on what grounds was Lawrence v. Texas decided?I echo Bricker's sentiment.

(note: I appreciate your long, detailed explanation, but I have honest questions about it. I'm not being belligerent, but have been told I tend to sound like I am :smack: )

I was under the impression that, at the very least, all the "dirty liberals" were big proponents of substantive due process. That is, they're striking down anti-homosexuality laws on the grounds that two people's natural right to be homosexual cannot be infringed by Congress, and they're striking down anti-contraception laws on the grounds that two people's natural right to plan families cannot be infringed.

Since I'm not a lawyer, case examples are more useful to me than jargon.

Let's look at Lawrence v. Texas (struck down anti-sodomy law). What would a SDP-proponent say, and what would an SDP-opponent say?

What about Griswold v. Connecticut (struck down anti-contraception law). What would an SDP-proponent say, and what would an SDP-opponent say?