Senator Josh Hawley and I Debate "Substantive Due Process"

|The Volokh Conspiracy |

On Wednesday, my friend and Scalia Law School colleague and office-neighbor Neomi Rao was confirmed by the Senate to a seat on the D.C. Circuit Court of Appeals. (Yay!)

Rao's nomination had hit a bump in the road when Senator Josh Hawley of Missouri publicly suggested that he was weighing whether to vote in her favor. Hawley questioned whether Rao was "pro-life," and also whether she believed in the doctrine of "substantive due process," the use of the Constitution's Fifth and Fourteenth Amendment's Due Process clauses to protect substantive liberty rights.

As various commentators noted, Hawley's raising of the substantive due process issue was odd. First, Hawley could have, but did not, ask Rao about this issue during her confirmation hearing. Second, there was nothing in Rao's writings suggesting that she had anything but the usual conservative skepticism about "inventing rights" via substantive due process. And third, Hawley's remarks suggests that he was entirely opposed to using the Due Process Clauses for substantive purposes, but every modern conservative Justice except for Justice Thomas has accepted substantive due process as the mechanism to "incorporate" the Bill of Rights into the Fourteenth Amendment, and even Justice Scalia accepted a role for due process in protecting a very narrow category of unenumerated substantive rights. And as a lower-court judge, Rao would be obligated to follow Supreme Court precdent on the matter in any event.

In any event, Hawley's concerns were eventually satisfied, and he joined his unanimous Republican colleagues in voting for Rao.

I took a special interest in this saga, not only because it involved my friend and colleage, but because Hawley and I had an exchange about the intellectual origins of substantive due process in the Texas Law Review originating in an article he wrote as a law professor at the University of Missouri. Hawley's article offered, in his words, "a thoroughly revised account of the modern doctrine's beginnings, development, and meaning. The core of the story is this: modern substantive due process depends on a coherent and thoroughly modern notion of liberty, grounded in the ideas- of personal authenticity and self-development."

I responded that Hawley provided "an incomplete account of the development and abandonment of pre-New Deal due process jurisprudence, and a somewhat idiosyncratic or perhaps tendentious account of the development of modern due process jurisprudence that almost certainly overemphasizes the role of philosophers in inspiring modern due process jurisprudence."

You can read each article at the links above, and decide for yourself whose take is more persuasive.

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29 responses to “Senator Josh Hawley and I Debate "Substantive Due Process"

  1. “. And third, Hawley’s remarks suggests that he was entirely opposed to using the Due Process Clauses for substantive purposes, but every modern conservative Justice except for Justice Thomas has accepted substantive due process as the mechanism to “incorporate” the Bill of Rights into the Fourteenth Amendment,”

    You have to start changing that at SOME point, or else it never changes.

    1. If so, it’s not going to happen because a lower-court judge says so.

      1. Well, she’s assuming a place on a court where a lot of folks sit for a while before taking the next step to the Supreme Court. Her name, at least, will be in the mix for many years to come. As such, her jurisprudence on substantive due process does actually matter.

      2. But the Supreme court is never getting there if the lower courts are full of people who are comfortable with substantive due process, because they’re the farm team for the Supreme court.

        1. The lower courts are full of those people because the bar and law schools are full of such people.

          And since the bar and legal scholars comprise the people with actual expertise on the subject of law and legal theory and jurisprudence, the chances of them all being wrong while Brett Bellmore is right are close to zero.

          1. “And since the bar and legal scholars comprise the people with actual expertise on the subject of law and legal theory and jurisprudence, the chances of them all being wrong while Brett Bellmore is right are close to zero.”

            I would note that when Einstein published his theory of special relativity in 1905, a substantial majority of physicists, the “people with actual expertise on the subject”, thought Einstein was wrong. And, unlike academic legal scholars, those physicists weren’t influenced by political leanings that caused them to prefer one side or the other in the debate.

            1. DJ, a couple of problems with that argument:

              1. It’s a black swan. Most of the time, experts are right.

              2. Brett is no Einstein. Part of my problem with wanna-be legal theorist Internet commenters is precisely that they have no idea, for instance, what HLA Hart wrote about positivism, or why law schools moved away from Christopher Columbus Langdell’s jurisprudential theories, or how the Constitution imported the common law system of precedent or what the theoretical underpinnings for such a system are.

              Rather, they think if they read a few constitutional provisions and a handful of Supreme Court cases, that’s enough. They are experts! They know!

              I spent a fair amount of money and several years of my life learning this stuff. It is not easy. It is not something anyone can do. And there are reasons for a lot of the things that Internet commenters routinely decry, including SDP.

              And when someone looks at a particular intellectual playing field and says “all the experts are wrong and I, an untrained autodidact, have discovered the truth that eluded them”, that’s generally an incorrect perception.

            2. And I would note that Einstein actually had a doctorate in physics.

              I would also echo Dilan’s comment that Brett is no Einstein.

              (Not intending to insult Brett. There have been damn few Einsteins.)

              1. One might argue that Einstein was no Einstein, post-GR.

      3. Isn’t the reason the Democrats were so worked up about this nomination because she is presumed to be a short-lister for the Supreme Court ? la Miguel Estrada? Makes sense to me for Republicans to be doing due diligence as well–would be hard for Hawley to vote against or otherwise oppose the Supreme Court nom if he didn’t say something now.

  2. tldr; … will read background this weekend

    every modern conservative Justice except for Justice Thomas has accepted substantive due process

    Accepted or swallowed? And so what? Substantive Due Process is a bullshit concept used to end-around Slaughterhouse. If someone comes out and says so, but then also says P or I is the legit basis for found rights, then net net we’re still where we need to be. But P or I proponents would argue that we’re on even firmer ground.

    So what’s Hawley’s real beef?

    1. “So what’s Hawley’s real beef?”

      He wants Amy Berman Jackson to get the next female GOP appointment, not Reo.

      1. Ooopps, wrong 3 name Amy.

        He wants Amy Coney Barrett.

        1. I’d take Amy Berman Jackson.

  3. How can “process” be “substantive”?

    Due process is a procedural concept.

    1. Yes, that’s the problem: “Substantive” due process is an oxymoron.

      But the Slaughterhouse cases gutted the P&I clause of the 14th amendment, and the Court wasn’t prepared to reverse those cases outright. So they invented “substantive” due process to bring some, but only some, of those rights back via the due process clause.

      The problem is that the 14th amendment is clear about P&I rights belonging only to citizens, while everybody in the country, even illegally, is entitled to at least due process. So this work-around transferred a lot of the rights of citizenship to non-citizens.

      And to avoid that they came up with goofy excuses for restricting those rights, which also got applied to citizens.

    2. “Substantive due process” is a phrase made up in the 30s that got traction b/c it made the idea look stupid, which is what New Deal Era progressives thought about it. For the 70 years before that, with courts protecting substantive rights through the due process clause, no one called it “SDP.” Instead, the courts’ position was that “due process of law” required that liberty not be taken away on an arbitrary basis. That basis could be a lack of proper procedures, or it could be because the law exceeded the legitimate “police powers” of the government. This was basically a universally held position across the judicial ideological spectrum from the 1870s until Holmes’s early 20th century dissents.

      1. “it could be because the law exceeded the legitimate “police powers” of the government”

        That is a complete free form license to overturn any law on the basis of whim. Its not grounded in the text “due process” at all.

        We were right to abandon it, its just a version of Living Constitutionalism.

        1. The vast majority of laws challenged under this doctrine were upheld, so in practice, whim didn’t win.

          1. Depending on the good sense of any group is dangerous.

            During the era you describe, government was tiny and restrained. Now it is big and far ranging, ready for activist judges to impose their own policy preferences.

            Better to stick to the text and not give judges this unconstitutional power.

            1. Better to stick to the text and not give judges this unconstitutional power.

              Are you claiming that P or I gives them less “power”.

              Personally, I’m not concerned about the power to invalidate laws.

              The problem has always been that “exceeded the legitimate ‘police powers'” and “due process” have no logical relationship. They were forced together by justices who felt overly bound to stare decisis but still wanted a way out of Slaughterhouse.

              The 10th plus P or I is a pretty firm foundation to build a doctrine of “exceeded the legitimate ‘police powers'” on.

            2. “Better to stick to the text and not give judges this unconstitutional power.”

              But “due process of law” is the text of both the Fifth and Fourteenth Amendments. And there is support for reading that substantively all the way back to merry old England.

    3. “How can ‘process’ be ‘substantive’?

      Due process is a procedural concept.”

      If a legislature purports to do something outside of the scope of its powers, then the act of the legislature is not law, and any process concerning the act is not “due process of law”.

      As Samuel Chase wrote, “An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.”

    4. Bob:

      I can’t say I’m a huge cheerleader of the concept (I tend to think a lot fewer things are protected by SDP than many folks), but the basic principle is as follows:

      We all agree on procedural due process, the idea that for any governmental action X, there’s some set of procedures that must be followed to make the action fair, right? So, for instance, before the government can fine you, the government has to go through some procedure. Before the government can shut down your business for health violations, same. Before it can impose a tax, same. Right? With me so far?

      Further, the AMOUNT of due process varies with the scope of the governmental intrusion. So if you get a parking ticket, the government just has to give you some way to contest it. On the other hand, if the government wishes to imprison you for 40 years, they have to have a fair charging procedure, a jury of your peers, various rules of evidence, a unanimous verdict, right to counsel, and a formal appellate mechanism to an unbiased tribunal, among other things. With me still?

      Well, there are some things that are so unfair that there is no amount of procedure that could comport them with fundamental fairness. THAT is substantive due process. So, if the government wants to crush your testicles, that violates SDP. No amount of notice and hearings and appeals and counsel would make that fair.

      1. This is an interesting comment, Dilan.

        I had not thought about it that way before.

  4. “And as a lower-court judge, Rao would be obligated to follow Supreme Court precdent on the matter in any event.”

    Usually that’s how it happens….. but I’ve not seen it with several high profile cases lately, notably Heller/McDonald. Granted, the Court should have just come out and been way more specific though.

    1. Gun cases are subject to the “but, guns!” exception to the normal rules.

  5. Anyone who doesn’t want the courts “inventing rights” ought to at least address why the Tenth Amendment, which on its face is an express license for them to do exactly that, should be disregarded or overturned.

    1. Maybe you mean the NINTH amendment.
      The tenth amendment on its face, and as applied until the 1930s, let’s the states do a hell of a lot.

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