Substantive Due Process

I’ve been reading court cases for a couple years now, doing a bit of research here and there, and one thing that I really can’t get behind is the idea of substantial due process. I mean, I certainly support the judiciary’s function as a trier of law. If the court finds that a law is invalid, by all means it follows that a person may not be deprived of life, liberty, or property by the invalid law. I take issue in the part where the Supreme Court decides that certain unenumerated rights are too fundamental to be restricted by law, and on that basis invalidates the law.

The way I see it, “due process of law” is a term of art that mirrors “law of the land” as it appeared in the Magna Carta; basically, requiring due process of law means it has to be by law and not just some arbitrary decision by government. In as much as the phrase protects fundamental rights, those rights must be fundamental to the process of law itself, and inalienable to the citizen of a free government. For example, I would say a law which subjects the state’s citizens to the whims of the Pope counts as a violation of the due process clause; a law which copies the specific language or recommendation of a Papal Bull probably does not, at least not by virtue of sharing language with that document.

I hope dopers can correct my course, because the more thinking I do on this subject, the more I disagree with it. And substantive due process is the legal basis for a lot of landmark cases like Gitlow v. New York, West Virginia State Board of Education v. Barnette, NAACP v. Patterson, Griswold v. Connecticut, Loving v. Virginia, Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges, just to name a few.


Here are some select primary sources.

U.S. Const. art. IV, §2, cl. 1

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

U.S. Const. amend. V (emphasis on the due process clause)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

U.S. Const. amend. X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Const. amend. XIV (emphasis on the due process clause)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Also a previous thread a decade ago on the same topic.

Just some insight into my opinions on case law, starting with my understanding, or perhaps misunderstanding, of Mugler v. Kansas.

Justice Harlan wrote...

“The argument made […], briefly stated, is, that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere; that among these rights is that of manufacturing for one’s use either food or drink […]
[…] If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. […] It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.
It does not at all follow that every statute enacted ostensibly for the promotion of these ends, is to be accepted as a legitimate exertion of the police powers of the State. […] The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty - indeed, are under a solemn duty - to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. 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.”

And in the following pages, the Court found that the restriction against manufacture and sale of beer did not violate the Fourteenth Amendment because that particular act was a legitimate exercise of police powers. Here is the problem I have: if an act restricts personal liberty without being a legitimate exercise of police powers, why would that act be invalid under the Constitution? States are assumed to have all the powers not restricted of them by the Constitution. The State does not need to prove to the satisfaction of federal courts that they are exercising a “legitimate” power, only that they have actually passed and enforced the law under normal process, that the law protects all people equally, that they do not abridge the privileges and immunities of citizens in the United States, that it is not an ex post facto law, that it does not impair the obligation of contracts, etc.

Next is Lochner v. New York.

Justice Peckham wrote...

“Under [the Fourteenth Amendment], no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right.”

That all sounds fine to me. He goes on to argue that the State inadequately justified its law regulating the right to purchase or sell labor. Therefore, the law is invalid. What?

Whoever said a state law has to be justified to trample on unenumerated rights? Isn’t it the job of the state legislature to determine whether the law is justified, when they decide whether to enact it? After all, the legislative power to change the common law is reserved to the states. But the Lochner case has, you know, been sort of overruled. It’s one of those black spots in constitutional jurisprudence.

I’ll jump to Meyer v. Nebraska, which is like eighteen years later. In that case, the state of Nebraska outlawed the teaching of foreign languages until after the pupil had been certified as having passed the eighth grade. Mr. Robert Meyer was tried and convicted of teaching German language to a ten year old.

Justice McReynolds wrote...

“[t]he established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.”

The Court then cited a bunch of cases as if they would show how this question was already settled, before ruling that no, the state cannot outlaw the teaching of foreign languages since that violates the due process clause of the Fourteenth Amendment. Going at it backwards as I am, this is a great way for me to try and figure out how to get from point A (a law interferes with liberty and the court deems it without reasonable relation to some valid purpose) to B (the law is invalid).

The court cited the Slaughter-House Cases, but to what effect? I see in that opinion a sound rejection of the applicability of the due process clause towards unenumerated rights. And the followup case, so far as I can tell, only affirms that a State may not permanently hamstring its police powers with corporate charters.

Yick Wo v. Hopkins, so far as I can tell, only affirms that the rights of aliens are protected under the Fourteenth Amendment’s due process and equal protection clauses. The Court says “fundamental rights” of one man cannot be held or violated according to the mere will of another, but must be subject to law. OK. Therefore, when Yick Wo had complied with all requirements of applicable law, it is unlawful for the city of San Francisco’s board of supervisors to arbitrarily decide to shut down his and eighty other wooden laundromats operated by Chinese nationals. It would be “a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution”. Makes sense to me. It is noted that municipal laws must be subject to the common law rights of individuals, and that State courts have often struck down municipal laws which infringe on these common law rights. That’s fine by me, too. But how do you get from this to Meyer?

Then to the Twining v. New Jersey case, which I think offers an excellent exposition on due process. That case refused to incorporate the Fifth amendment right against self-incrimination upon the states (it has since been overturned). I fail to see why the Meyer court cited this case, either.

The Court in Chicago Burlington Quincy Railroad Company v. McGuire, so far as I can tell, takes it for granted that the States may exercise police powers, citing Mugler and also Atkin v. Kansas. I have to assume that it is implied that States may only regulate the liberty of contracts when exercising police powers that federal courts deem justified. This latter case, Atkin, only tells me that a state law regulating work hours for municipal governments does not violate any Fourteenth Amendment right to work (if such a right exists) because it only applies to the state’s contracts with its own employees. Neither of these cases offer any insight.

Truax v. Raich, so far as I can tell, has nothing at all to do with the due process clause.

In Adams v. Tamer, I encounter again that strange assumption that the Supreme Court can invalidate a state law under the due process clause if it finds that the police powers exercised are unreasonable or unjustified. The actual arguments are kicked back to Allgeyer v. Louisiana, Booth v. Illinois, McLean v. Arkansas, and Murphy v. California.

In Allgeyer, so far as I can tell, the Court ruled that a state statute as constructed by the supreme court of Louisiana could not become due process of law because it had the effect of interfering with contracts made in another state and therefore exceeded Louisiana’s sovereign authority - it was “inconsistent with the provisions of the constitution of the Union”. It also says that liberty includes the liberty to make contracts and not just freedom from physical restraint. That’s all fine by me. Booth principally cites Allgeyer’s reading of the term ‘liberty’, and then on Mugler for the basic assumption that the Court can judge a state legislature’s act and strike it down if it violates unenumerated rights absent sufficient justification. McLean likewise piggybacks on Allgeyer and Adair v. United States; this latter case relies on Lochner and Allgeyer and Mugler to make the critical arguments. Murphy relies entirely on Booth.

I take exception especially to the language used in Adair:

“The right to purchase or to sell labor is part of the liberty protected by [the Fourteenth Amendment’s due process clause], unless there are circumstances which exclude the right.”

This is precisely what I don’t get. Is the Fourteenth Amendment’s due process clause a direct repeal of the Ninth and Tenth Amendments? Are unenumerated rights that fall under “life, liberty, and property” now assumed to be protected by the federal government and judiciary by default? Do the words “due process of law” imply that individual states give up their inherent sovereignty, and now depend upon the approval of the federal government for decisions of public morality, public health, and public welfare?

And does this all rely on Mugler?