The Volokh Conspiracy

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Senator Josh Hawley and I Debate "Substantive Due Process"


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.