The Volokh Conspiracy
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What Is A "Liberty Interest" And Why Does The Due Process Clause Protect It?
Once again, Justice Thomas raises questions the other Justices simply do not wish to answer.
I continue to make my way through the final decisions of the term. Next up is Gutierrez v. Saenz. At first blush, this is the sort of case you might skip over. Can a convicted murderer sue the District Attorney under Section 1983 to force him to test potentially exonerating DNA evidence? This dispute turns, in part, on whether the District Attorney's refusal to test the DNA deprives the defendant of life, liberty, or property, without due process of law. To be clear, the Defendant was afforded more than the process he was due at the criminal trial, through the appellate process, and through collateral review. The constitutional question presented here is whether the refusal to test the DNA violates the Due Process Clause.
The Fifth Circuit panel did not reach the merits. Rather, the panel found that the Defendant lacked standing to bring the Section 1983 claim. The Supreme Court, by a vote of 6-3, reversed the lower court. Justice Sotomayor's majority opinion found that the Defendant had standing to bring the claim.
Justice Barrett concurred in judgment. She thinks the lower court misapplied Reed v. Goertz, but wrote that the Court's analysis "muddies the waters of standing doctrine." I wish the Process Formalist would have written more than a paragraph to explain why. But this is all we got.
Justice Alito dissented, joined by Justices Thomas and Gorsuch. Justice Thomas wrote a solo dissent that was enlightening and thought provoking: what do "life, liberty, or property" mean in the Due Process Clause? In particular, he addresses a question I've long wondered: what exactly is a "liberty interest?" This opinion raises similar issues as Thomas's Medina concurrence, which challenges the breadth of Section 1983.
First, Thomas returns to the themes of his Obergefell dissent with the meaning of "liberty." At common law, "liberty" referred to a freedom from physical restraint. Thomas cites Magna Carta, Coke, Blackstone, and other foundational sources.
This conception of liberty, however, was expanded during the Lochner era:
The original meaning of "liberty" in the Fourteenth Amendment was likely far narrower than our precedents currently hold. The term originally appears to have referred only to freedom from physical restraint. But, in the Lochner era, the Court began to hold that "liberty" includes fundamental rights generally. See Lochner v. New York, 198 U. S. 45 (1905). This Court has since adhered to that broader meaning.
Does Justice Thomas think the Lochner-era precedents concerning "fundamental" rights are consistent with the original meaning of the Fourteenth Amendment? Thomas does not say so expressly. He does say that the meaning of "liberty" in the Fifth and Fourteenth Amendment were the same. And he criticizes the notion of substantive due process. But he doesn't mention the Privileges or Immunities Clause here. Then again Thomas also seems to accept the list or "pre-political" rights from Meyer v. Nebraska, at least as a matter of precedent.
This Court eventually repudiated Lochner's muscular version of substantive due process—at least for economic rights. See Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). But, the Court continues to treat Meyer's definition of "liberty"as authoritative. E.g., Roth, 408 U. S., at 572. . . .
The understanding of liberty as a natural right persisted until well after the enactment of the Fourteenth Amendment. Even as this Court expanded the notion of "liberty" in the Lochner era, it remained faithful to the idea of liberty as "individual freedom from governmental action, not as a right to a particular governmental entitlement." Obergefell, 576 U. S., at 726 (THOMAS, J., dissenting). None of the liberties enumerated in Meyer, for instance, could be characterized as state-created benefits.
I am not sure that Thomas has clearly settled this issue. He is a bit cagey, which is unusual.
Second, Thomas is quite clear that the Supreme Court's Due Process precedents from the 1970s were entirely wrong:
Some decisions of this Court, while recognizing the general principle that the Fifth and Fourteenth Amendments' Due Process Clauses should be read together, have left open the possibility "that questions may arise in which different constructions and applications of [the Clauses] may be proper." French v. Barber Asphalt Paving Co., 181 U. S. 324, 328 (1901). Even assuming that caveat is correct, however, reading "liberty" in the Fourteenth Amendment to mean fundamental rights generally, see infra this page and 8, would appear to render the Fourteenth Amendment so broad that it would destroy the general rule that the Fifth and Fourteenth Amendments should be read coextensively. And, even if "liberty" in the Fourteenth Amendment were entirely decoupled from its meaning in the Fifth Amendment, I am aware of nothing showing that the term was understood to encompass government entitlements before the 1970s.
Third, Thomas provides a useful summary of the meaning of "property" in the Due Process Clause.
Scholars generally agree that the term "property" in theDue Process Clauses originally referred only to those interests traditionally recognized as property at common law. Property at common law did not include entitlements to government benefits. See 2 Blackstone 16–19, 384–399; J. Kent, Commentaries on American Law 324–330, 613–614 (W. Browneed. 1894) (Kent). And, consistent with their general view of civil liberties, Americans at the founding and in the early Republic viewed property—like liberty—as a natural, prepolitical right. See, e.g., Virginia Declaration of Rights, §I,in Finkelman 154; Calder v. Bull, 3 Dall. 386, 388–389 (1798) (opinion of Chase, J.); H. Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States 136 (1837); Kent 203.
But the modern Supreme Court has deviated from this meaning in modern times. And Justice Thomas blames Charles Reich--who was Justice Alito's Constitutional Law professor.
In the 1960s, Professor Charles Reich of the Yale Law School published two articles proposing a radical reinterpretation of the concept of property. See Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245 (1965) (Individual Rights); The New Property, 73 Yale L. J. 733 (1964) (The New Property). Taking direct aim at the Framers' understanding, Reich argued that "[p]roperty is not a natural right but a deliberate construction by society" that could be redefined to meet contemporary social needs.
And Justice Thomas explains how the Supreme Court followed Reich in Goldberg v. Kelly, a decision that had no grounding in the text or history of the Constitution.
This Court embraced Reich's vision in 1970, holding that "welfare benefits" are property under the Fourteenth Amendment's Due Process Clause because they "are a matter of statutory entitlement for persons qualified to receive them." Goldberg, 397 U. S., at 261–262. The Court dismissed any distinction between "a 'privilege' and . . . a 'right,'" and did not attempt to ground its conclusion in thetext or history of the Due Process Clause. Id
Fourth, Thomas turns to the origin of the term "liberty interest."
As with property, the Court's redefinition of "liberty" was a conscious break with the past. The Court rejected the inquiry of "whether [a] parolee's liberty is a 'right' or a 'privilege'" as "hardly useful any longer." Morrissey v. Brewer, 408 U. S. 471, 482 (1972) (emphasis added). It expressly repudiated its earlier case law holding that probation, as "an 'act of grace,'" triggers no due process protections. See Gagnon v. Scarpelli, 411 U. S. 778, 782, n. 4 (1973) (quoting Escoe, 295 U. S., at 492). And, seemingly to obfuscate the awkwardness of referring to a government-created entitlement as "liberty," the Court began to speak instead of "liberty interests." Kenosha v. Bruno, 412 U. S. 507, 515 (1973) (internal quotation marks omitted). Although it is now standard terminology in due process litigation, the phrase did not appear in the United States Reports before Goldberg.
It seems "liberty interest" is some sort of constitutional chimera between liberty and property. Go figure.
Fifth, Justice Thomas returns to the case at hand. The defendant has invoked Osborne to justify his Section 1983 suit. But Section 1983 can only be invoked if there is an actual violation of a constitutional right. And if the defendant's claim turns on Goldberg v. Kelly, the claim must fail:
Osborne thus cannot support Gutierrez's asserted "liberty interest." We may, consistent with the judicial power, defer to earlier decisions that "apply traditional tools of construction and arrive at different," but reasonable, "interpretations of legal texts." Gamble, 587 U. S., at 721 (THOMAS, J., concurring). But, Osborne rests on nothing more than Goldberg's abandonment of the Due Process Clause's original meaning.
I don't think people value how much Justice Thomas does. No one else on the Court can do these sorts of deep dives into doctrines that make little sense. I hope the Court thinks twice before it expands any precedent based in Goldberg v. Kelly.
