My talks on "The Myth of Substantive Due Process" [UPDATED]

Why both progressives and conservatives are wrong about "the due process of law."

|The Volokh Conspiracy |

The modern doctrine of substantive due process is problematic in many ways. For one thing, it allows judges to pick and choose among the "rights . . . retained by the people" to identify those "fundamental rights" that will get super-duper scrutiny, and those "liberty interests" that can be restricted by legislatures with impunity. But problematic as well is the very common critique of substantive due process made by some modern conservatives. According to that critique "the due process of law" is satisfied when a statute is duly enacted and signed into law. At that point, "the due process of law" only ensures a fair judicial procedure to ascertain guilt or innocence of an accused for violating that law. The substance of the law is supposed to be immune from judicial scrutiny.

In my talk, The Myth of Substantive Due Process, I explain both why modern substantive due process is objectionable and why the conservative critique is inconsistent with the original meaning of "the due process of law." I will be giving this talk on

  • Wednesday, January 30th at noon at Harvard Law School in Room WCC 1015 (1585 Massachusetts Ave);
  • Wednesday, January 30th at 7:00pm at Yale Law School, Room 127; and
  • Thursday, January 31st at noon at Penn Law in Gittis 213.
  • Thursday, February 14th at noon at the University of Chicago Law School
  • Friday, February 15th at noon at Northwesterrn Law
  • Friday, March 29th at noon at St. Thomas Law in Miami.

Food will be served at all the events and the public is welcome to attend.

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  1. Will you updates this post with links to a video of the talks, if they are being taped?

    1. Or a transcript?

      1. Add me to mad_kalak’s and MatthewSlyfield’s requests!

  2. “At that point, “the due process of law” only ensures a fair judicial procedure to ascertain guilt or innocence of an accused for violating that law. The substance of the law is supposed to be immune from judicial scrutiny.”

    There seems to be a basic problem with this argument: It assumes that due process is the only available basis for judicial scrutiny. Why couldn’t you scrutinize the substance of the law based on P&I?

    1. Because Slaughterhouse?

      1. SCOTUS could reverse Slaughterhouse if they wanted to.

        1. Far as I know, only Thomas and Gorsuch want that.

          But aside from that, I meant Slaughterhouse was the only reason no one uses P&I.

        2. Except the legislative history of the 14A firmly supports Slaughterhouse, you know, having nothing to do with resident citizens within their own state limits and laws.

          1. Yeah, what happened is that the very earliest 14A legislative history demonstrates Slaughterhouse was a farce. But in 1877 (9 years after the 14th amendment was ratified.) Hayes and the Republicans entered into a corrupt bargain with the Democrats to end Reconstruction in return for not contesting Hayes’ election.

            The legislative history that supports Slaughterhouse dates from after that betrayal.

            1. “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.” AND, “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

              Sounds all pro-slaughterhouse to me.

    2. You could also use the Ninth Amendment as well.

      Look, any way you look at it, the Constitution protects unenumerated rights. The problem is that just about everyone who agrees with this feels that whatever their political preferences are supply those rights. So liberals think that abortion and contraception and same-sex sexual relationships and assisted suicide are among those rights, and conservatives / libertarians think in terms of the right not to have to pay the minimum wage, the right of the fetus to not be killed, rights to free of business regulations, etc.

      What I wish would happen, but won’t, is to have more advocates admit this problem, rather than assuming that the Constitution just obviously enacts their political preferences.

      And no, originalism doesn’t solve this problem, basically for the reasons that Scalia pointed out in Michael H. v. Gerald D (or what Professor Scott Lemieux calls “originalism’s ladder”). You can justify any right you want to by just picking the right level of generality.

      1. And no, originalism doesn’t solve this problem, basically for the reasons that Scalia pointed out in Michael H. v. Gerald D (or what Professor Scott Lemieux calls “originalism’s ladder”). You can justify any right you want to by just picking the right level of generality.

        But Scalia doesn’t suggest that the level of generality will always be available in order to tweak the result in the right direction. He proposes a formula for choosing the correct level of generality.

        Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.

        1. He was wrong though. Indeed he didn’t follow it himself (e.g., affirmative action cases).

          You can’t select the most narrow level of generality consistently because we need to apply the Constitution to new situations and that sometimes requires broader conceptions of rights.

      2. and conservatives / libertarians think in terms of the right not to have to pay the minimum wage, the right of the fetus to not be killed, rights to free of business regulations, etc.,

        I don’t think that most conservatives/libertarians are urging that the right to work for whatever pay one chooses or the right to be free of business regulations should be recognized as unenumerated rights. Rather, most of them say that recognizing these as rights would not be less legitimate that recognizing the right to abortion. As for the right of the fetus not to be killed, that right is as enumerated as your or my right not to be killed at the whim of somebody else (especially with government funding).

        As for the 9th amendment, it was intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it by the Bill of Rights. The Bill of Rights was intended to limit the power of the federal government, not to enlarge it by giving the Supreme Court the authority to limit the power of the States to legislate in whatever areas it chooses.

        1. You have the 9th Amendment and the 10th Amendment confused.

          1. The ninth amendment is intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it by the Bill of Rights. The tenth amendment affirmatively says that unless the federal government was given a power to legislate in a certain area, that power belongs to the states of the people. The 9th just makes clear that specifying one right does not constitute a delegation of power to legislate in areas not prohibited to it.

      3. The Constitution does protect unenumerated rights. Just not against the States, perhaps.

        1. The Fourteenth Amendment incorporated rights against the states

          1. That’s how it’s been interpreted, yes. But it’s not clear that was the original meaning, especially as to enumerated rights.

            1. *unenumerated

          2. According to Howard and Bingham and most of the press, it only did so those rights a citizen could claim as a party in federal courts.

    3. Why couldn’t you scrutinize the substance of the law based on P&I

      Do you mean P&I (The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States) or PorI (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States)?

      Either way, do you envision the purpose being different from the purpose under substantive due process? Wouldn’t judge-invented rights be available, just as under substantive due process?

      1. The chief difference with P&I scrutiny is that the P&I clause specifically applies to citizens, not people in general. Everybody in the country is entitled to due process, but most rights under the 14th amendment are only supposed to be available to citizens.

        Sure, judge invented rights are available either way. Paper barriers don’t stop bad faith by judges.

        I was just disputing the idea that if you can’t scrutinize the substance of a law under substantive due process, you can’t scrutinize it AT ALL. That goes too far in legitimizing Slaughterhouse and the invention of substantive due process to patch over it instead of overturning it.

        1. You keep assuming there is no equal protection clause in the 14A.

          Any right extended to citizens is then easily extended to noncitizens under an equal protection theory.

          1. You’re stretching the meaning of “equal protection” way beyond what it was intended to do.

            All it’s supposed to do is keep states from declaring particular groups “outlaw”, beyond the protection of laws against assault and robbery. It was a response to blacks being attacked and the state and local authorities refusing to prosecute the crime.

          2. “Any right extended to citizens is then easily extended to noncitizens under an equal protection theory.”

            This clearly goes too far. I haven’t seen any serious arguments that noncitizens have a constitutional right to vote or serve on juries, for example. And the few people arguing that the federal government doesn’t have the power to restrict immigration, or impose restrictions on what noncitizen immigrants can do, are decidedly out of the mainstream.

  3. “original meaning of “the due process of law.”

    I doubt that “process” meant anything other than “procedure” or “course of action” even in 1789.

    According to the dictionary, the word began as the Latin “procedere” which became “processus meaning ‘progression, course’. The Founding Fathers knew Latin of course in addition to the very common legal meaning of “process” as a summons or writ, a procedural device..

    For substance you have to look at the 9th Amendment.

    1. As Raoul Berger put it in Government by Judiciary:

      Whether one can determine “precisely” what due process meant, however, is not nearly so important as the fact that one thing quite plainly it did not mean, in either 1789 or 1866; it did not comprehend judicial power to override legislation on substantive or policy grounds. There is first the unmistakable testimony of Alexander Hamilton. Speaking in the New York Assembly in 1787, almost on the eve of the Convention, he stated:

      “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 the legislature.”

      1. I am just a textual guy but that Hamilton quote sums up what process meant in 1789, 1868 and now.

        We on the right must stay anchored to the text because otherwise we are no better than the “living constitution” anarchists on the left.

        1. I’m fine with changing ideas increasing the freedom of The People, as with gay rights.

          I am not fine with changing ideas increasing the power of government into new areas sans amendment.

          A lot of people want to be free? Sounds good to me.

          A lot of people want to increase the power of government? Go through the deliberately protracted process to grant the government this power. Most should buy into it if it is a good idea, not merely a possibly transient majority hyped by a demagogue.

          1. But as the judicial imposition of SSM demonstrated, under current “civil rights” doctrine, an expansion of rights delegates to individuals the ability to deploy the power of the state against other individuals.

            Prior to the “expansion of rights”, you didn’t have to bake that cake. After it, you do.

            People who get assigned to “protected classes” are like the pigs in 1984: They’re more equal than the other animals.

            1. People who get assigned to “protected classes” are like the pigs in 1984: They’re more equal than the other animals.

              Animal Farm

    2. “I doubt that “process” meant anything other than “procedure” or “course of action” even in 1789.”

      What if “process” isn’t the key word?

  4. When asked in committee what due process was, 14A author of the words said it was the “centuries old meaning of protection against arbitrary abuse in the taking of life, confinement and confiscation.” That leaves it with nothing substantive.

    1. What if the law itself is arbitrary, not just the enforcement?

      1. The due process clause doesn’t protect you from that. To some extent the law is always going to be arbitrary, there’s no constitutional obligation to deal with problems in strict rank order of importance, for instance.

        But once the law is there, due process protects you from those enforcing it just doing whatever the heck they feel like, instead of following it. It gives you predictability.

        1. “The due process clause doesn’t protect you from that.”

          I suspect that Randy Barnett will disagree.

          “To some extent the law is always going to be arbitrary, there’s no constitutional obligation to deal with problems in strict rank order of importance, for instance.”

          That might make the enactment of the law arbitrary, but that wouldn’t make the law itself arbitrary.

      2. If the law is arbitrary then it is strictly a political question, but certainly, judges cannot act arbitrarily in administering due process.

        1. Why would that be the case? Why would the legislature be entitled to act arbitrarily but not the executive or judicial branches.

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