Buried in the furor over the Supreme Court’s abortion decision, Dobbs v. Jackson Women’s Health, is a deeper dispute, one with far broader consequences than even the abortion debate itself. It concerns the oldest and most fundamental of all constitutional guarantees—one that has been attacked for decades by legal thinkers on both the left and right, and that is widely misunderstood today, even by the justices on the nation’s highest court. It’s called “substantive due process,” and since the days of the Magna Carta, it’s served as a basic shield against arbitrary government.

But many judges, most notably Justice Clarence Thomas, are now targeting it for destruction. “‘Substantive due process’ is an oxymoron that ‘lacks any basis in the Constitution,’” Thomas wrote in his separate opinion in Dobbs. “We should eliminate it from our jurisprudence at the earliest opportunity,” and “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”—cases that established rights to use birth control, engage in private consensual sex acts, and enter into same-sex marriages.

This last statement understandably caused alarm when Dobbs was issued; most Americans now take these rights for granted. But even more broadly, eliminating substantive due process from American jurisprudence would contradict some of our most essential constitutional principles.

What ‘Substantive Due Process’ Is

The reason “substantive due process” is often called an oxymoron is its odd name. “Process,” or procedure, seems like the opposite of “substance”—so the Constitution’s “due process” clause would seem to require only that the government give people “procedural” rights, such as hearings or trials. Yet courts have interpreted the clause as forbidding certain types of laws entirely, even if they do entitle people to trials or hearings. Isn’t that self-contradictory?

But the alleged “oxymoron” is an anachronism. The phrase “substantive due process” was coined in the 1930s as a pejorative by progressive legal theorists who sought to ridicule the centuries of legal precedent that interpreted the due process clause as protecting substantive, as well as procedural rights. Before then, judges who practiced “substantive due process” just called it “due process of law,” the phrase that appears in the Fifth and 14th Amendments. Those clauses say government cannot take away a person’s life, liberty or property except by due process of law—and those last two words are the most significant. The Constitution pledges not just any process, but a lawful process. It promises we won’t be deprived of our rights unless the government is acting lawfully.

To some people, it seems odd to say that government cannot take rights away except by lawful means: If the legislature passes something, that seems to be a law by definition, and if it takes away someone’s rights, then that person’s rights have presumably been taken through due process “of law”—i.e., through the statute that the legislature passed. But this type of thinking assumes that anything the government does is “law,” and that was precisely the idea the Constitution’s authors rejected. They believed that some things government does are not “law,” but mere force—and someone whose rights are taken away by mere force has been deprived of liberty without due process of law.

What, then, is law? What differentiates a lawful process from some other kind of process? Philosophers have debated such questions for centuries, but they long ago reached consensus on certain basics. For one thing, law aims at accomplishing a public good, rather than obtaining private benefits for the ruler. Also, law is general—it applies to everyone who fits within its terms—as opposed to a mere command, which applies to a specific individual. Law is logically comprehensible, too; as legal philosopher Lon Fuller observed in his classic book The Morality of Law, if legislators were to approve a bill that requires and prohibits the same act, or that is composed entirely of gibberish symbols, neither would qualify as a law.

Law Versus ‘Because I Say So’

What this adds up to is that law is the opposite of arbitrariness. The Constitution’s promise that government will deprive people of life, liberty, or property only in a manner consistent with law means that officials must act within general principles that serve the public welfare in a rational way, as opposed to mere “ipse dixit,” a Latin phrase meaning “because I say so.”

The Supreme Court explained this succinctly in an 1884 decision that observed, “Law is something more than mere will exerted as an act of power. … Arbitrary power … is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.” Consequently, “Not every act legislative in form … is law.” This means that whether a government action qualifies as law depends not just on formal or procedural considerations, such as whether Congress approved the action and it was signed by the president, but also on whether its substance is consistent with such basic principles as generality, comprehensibility, public purpose, etc.—hence the name “substantive due process.”

When a city passes an ordinance requiring cars to come to a stop at a busy intersection, that’s a “law” because it serves a public purpose (saving lives), it applies to all drivers, and it can be comprehended and obeyed by the general public. But the arbitrary, self-interested regimes of, say, Shakespeare’s Richard III, or Mel Brooks’ King Louis—who take whatever they want because “it’s good to be the king”—are not lawful governments.

Banning ipse dixit government actions was a radical idea when the Magna Carta was written. It pledged that the king would not imprison people or seize their property “except by … the law of the land,” a phrase lawyers have recognized for centuries as synonymous with “due process of law.” The “law of the land” or “due process” clauses were important innovations because they meant that not everything government officials do qualifies as “law.” If they cross certain lines, their actions aren’t the law of the land, but are (to borrow a phrase from Alexander Hamilton), “merely acts of usurpation, [which] deserve to be treated as such”—i.e., null and void.

And since it’s judges’ job to interpret the laws, it’s incumbent on them to discern the lines between legitimate laws and invalid acts of usurpation. That’s the principle called “substantive due process,” and all other constitutional protections—from protections for free speech to rules governing criminal trials—were built upon it over the centuries. These additional constitutional protections address particular types of invalid ipse dixit acts, such as censorship or the uncompensated seizure of property, but they don’t supplant the broader prohibition against all arbitrary actions by the government.

To see how due process works, imagine that Congress and the president declare Lutheranism the official religion of the United States. The following Sunday, federal marshals begin arresting Unitarians and Catholics who refuse to attend Lutheran services. The defendants would argue—and rightly so—that they were being deprived of liberty without due process of law. If the marshals pointed to the new Lutheran Establishment Act as their “lawful” authority, the judge wouldn’t be convinced. After all, the First Amendment says Congress can “make no law” establishing a church, so the Lutheran Establishment Act can’t be a “law”; it must be something else—an ipse dixit act of arbitrary force. This, in turn, means that marshals arresting people for disobeying the act would be depriving those people of liberty without due process of law. No number of hearings, trials or other procedures or processes—no matter how fair—could remedy that unlawfulness.

‘Creating’ Rights?

One common accusation against substantive due process is that courts use it to—in Justice Thomas’ words—“divine new rights.” And it’s true that this legal theory has often led courts to recognize previously unrecognized (or “unenumerated”) rights. That’s because whenever a judge is asked to decide whether a law is arbitrary, she must consider whether it satisfies the basic standards that make a law legitimate—generality, comprehensibility, public benefit, etc. —and doing so inevitably involves questions about rights.

Imagine lawmakers declared that no marriage was valid if the groom had a pacemaker. If that were challenged in court, the judge would ask what the legislature’s purpose was. If the government could offer no persuasive justification for the statute, she would declare it arbitrary and irrational—and therefore that it deprived people of liberty without due process “of law.” Her critics would no doubt condemn her for “creating” a “new right”—the “right for people with pacemakers to get married”—which is nowhere mentioned in the Constitution. (True; it isn’t.) Yet this “creation” of rights is perfectly logical, a necessary step in applying the due process of law clause.

And that method of “creating” new rights is not just a legitimate legal principle; it’s one America’s founding fathers were comfortable with. After all, they grew up under the English Constitution, which is unwritten. All rights were “unenumerated” in their day.

These hypotheticals may sound silly, but real cases are often equally extreme. In 1870, San Francisco passed an ordinance requiring any man thrown in jail to have his head shaved. City officials said this was intended to prevent lice, but Justice Stephen Field saw through that. The ordinance’s real purpose was to persecute Chinese immigrants—the target of intense bigotry in the 19th century—who typically grew their hair long and prized their braids, called queues. “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men,” Field noted. “Had the ordinance contemplated a mere sanitary regulation,” Field observed, “it would have been … made applicable to females as well.” The “queue ordinance” was actually just another way for San Francisco to carry out its campaign of harassing the Chinese. Because such “hostile and spiteful legislation” served no true public purpose, but was a mere act of ipse dixit, arbitrary power, it could not qualify as law and consequently violated the due process of law guarantee (as well as the equal protection clause). Today’s critics of substantive due process would probably accuse Field of “creating” a right to have long hair—a right not found in the Bill of Rights—but his decision was considered an ordinary application of the due process clause at the time.

In fact, it was this reasoning that led to virtually all the constitutional protections we now enjoy against state governments. In the 1897 case of Chicago B&Q Railroad v. Chicago, the Supreme Court said—rightly—that for a state to seize property without paying for it was an arbitrary, ipse dixit act in violation of the due process of law clause. For a state’s taking of property to be lawful, it must justly compensate the owner, just as the Fifth Amendment already protects people against uncompensated seizures by the federal government. Chicago B&Q thus became the first case in which the U.S. Supreme Court said that the guarantees of the Bill of Rights apply to states through the 14th Amendment—an idea lawyers now call “incorporation.”

The court gradually required state governments to abide by other such guarantees for their actions to qualify as legitimate “law.” The most recent example was a 2019 Indiana case in which the Court “incorporated” the Eighth Amendment to the states by ruling that states’ impositions of excessive fines are just as invalid as the federal government’s, and that such fines therefore deprive people of property without due process of law. In other words, states must obey the principles of the Eighth Amendment for their actions to not be arbitrary and unlawful. In the 122 years between that case and Chicago B&Q, the principle of substantive due process—that states may not take away our rights in a manner inconsistent with generality, rationality, public purpose and the other fundamental principles that differentiate law from arbitrary government action—has been the primary vehicle for protecting our constitutional liberties against state governments.

The Assault on Due Process of Law

It was only in the early 20th century that substantive due process became controversial in legal circles. That was when progressive scholars began arguing that anything the legislature passed was necessarily a law, and that any judge who said otherwise was illegitimately imposing his own personal views on the law under the guise of legal interpretation. Justice Oliver Wendell Holmes, the foremost proponent of this view, thought there was no such thing as justice and prided himself on “sneer[ing] at the natural rights of man.” Naturally, if justice and rights don’t exist, there can be no universal or pre-political baseline by which to judge government’s acts. In other words, all legislative action is ipse dixit—and there can be no sense in speaking of the government failing to accord “due process of law.”

That was the dispute that underlay Lochner v. New York (1905), in which the Court struck down a New York law prohibiting bakers from working more than 10 hours per day. The older justices found no evidence that working overtime in bakeries was bad for employees or customers, which meant the law was a “mere meddlesome interference with the rights of the individual”—specifically, the right to decide the terms of one’s own employment. That meant the statute was arbitrary and not a “law” under the due process clause. But Holmes dissented. “The word liberty in the Fourteenth Amendment,” he concluded, “is perverted when it is held to prevent the natural outcome of a dominant opinion.” If the legislature chooses to take away someone’s right to work, that’s no more or less arbitrary than anything else legislatures do—so courts have no grounds to object.

Holmes’ dissent became a manifesto for progressives, most notably Justice Felix Frankfurter, who advocated the outright repeal of the due process of law clause, and who fashioned, along with other New Deal justices, a new legal theory called “judicial restraint” to replace substantive due process. That theory held that judges should defer to Congress or the president in almost every case—meaning they should refuse to act if the government nullifies people’s freedoms.

The Supreme Court only partially embraced the judicial restraint theory. In 1934, the court adopted a form of it called “rational basis scrutiny,” under which laws restricting certain kinds of disfavored rights—including private property and economic freedom—are considered legitimate if a judge can imagine a legitimate justification for it, no matter how arbitrary or ipse dixit it might be in reality. In the 1960s, however, the court began increasing protections for certain “privacy” rights, regarding them as more constitutionally valuable, and using the old substantive due process theory to declare laws against contraception, interracial marriage and, yes, abortion unconstitutionally arbitrary because they advanced no legitimate public purposes.

Those privacy decisions worked a remarkable transformation: They led political conservatives to embrace the judicial restraint theory that for decades had been the province of progressives, and to reject the centuries-old due process concept that one would have expected them, as conservatives, to maintain. By the end of the ’60s, the two sides had flipped, and the loudest critics of substantive due process were to be found on the right, not the left. Where Holmes, Frankfurter and their contemporaries tried to erase due process of law because courts had used it to strike down arbitrary restrictions on private property and economic freedom, now conservatives like Robert Bork and Antonin Scalia sought to eliminate it because courts had invalidated unjustifiable government intrusions into privacy. Like their progressive forebears, these conservatives argued that whatever the majority chose to do was automatically “due process of law,” even if it took someone’s liberty away for no good reason.

Substituting the ‘Privileges or Immunities’ Clause?

Clarence Thomas, however, differs from these conservatives in one interesting respect. Most opponents of substantive due process—from Holmes and Frankfurter to Bork and Scalia—have based their arguments on a wholesale rejection of the idea of natural rights. As “legal positivists,” they thought individuals had only those rights the government gives them. Consequently, if lawmakers strip people of those rights using legally prescribed procedures, such actions don’t deprive anyone of “due process of law.”

Thomas, by contrast, has always endorsed the idea of natural rights, even citing the Declaration of Independence in many of his decisions. How can this be reconciled with his desire to eliminate the Constitution’s guarantee against arbitrary government action?

Thomas offered an answer in 2010 in McDonald v. Chicago, a gun rights case in which he argued that the Constitution protects natural rights not through the due process clause, but through the “privileges or immunities” clause instead. That clause, which appears just before the due process clause in the 14th Amendment, prohibits states from passing or enforcing laws that “abridge the privileges or immunities of citizens of the United States.” In McDonald, Thomas argued that the amendment’s authors intended this clause, not the due process clause, to be the primary source of constitutional protections for freedom when they wrote the amendment in 1868.

That’s true, and it’s tragic that the Supreme Court effectively erased that clause from the Constitution in 1873, when it decided the infamous Slaughter-House Cases. That decision involved a Louisiana law that cited public health concerns to force butchers around New Orleans to use—and pay rent to—a monopoly slaughterhouse facility. The butchers brought suit, arguing that the law deprived them of their “privileges or immunities” by taking away their right to run their own businesses, but the court held that the privileges or immunities protected by the Constitution are limited to a narrow list of relatively insignificant liberties, such as the right to use federally owned waterways, rather than such weighty constitutional values as economic liberty, freedom of speech, religious freedom, self-defense or private property.

Lawyers today almost universally agree that Slaughter-House was wrongly decided, so Thomas has proposed a kind of swap: The justices could eliminate substantive due process—which he considers unacceptably vague—while simultaneously reviving the moribund privileges or immunities clause. That would enable courts to protect unenumerated rights while avoiding what he calls the “tenuous” quality of due process.

But that argument doesn’t work. First, although it’s true that the Slaughter-House decision was wrong to neuter the privileges or immunities clause, that doesn’t mean that the due process of law clause should also be shorn of its strength. Both clauses are important. Second, Thomas’ approach to interpreting the privileges or immunities clause is dangerously flawed. Because he considers legal philosophy too vague, he believes courts should rely almost exclusively on history instead. In his view, a court asked to decide the constitutionality of a statute like the hypothetical anti-pacemaker law or the real-life Chinese queue ordinance would not ask whether it lacks generality, public purpose, rationality or the other criteria that differentiate legitimate laws from illegitimate ipse dixit acts. Instead, it would ask whether the “right to use pacemakers” or the “right to have long hair” have been historically regarded as among the privileges or immunities of U.S. citizenship.

Of course, there’s no evidence they have been, which illustrates the danger of trying to eradicate the “tenuous” quality of legal reasoning by relying exclusively on history. Doing so, in fact, contradicts the entire idea of natural rights. The point of natural rights, as opposed to traditional rights, is that such rights don’t depend on history. A natural right isn’t just a longstanding practice; it’s a principle of justice, and therefore timeless. It can never be legitimately violated, no matter how often it has been ignored in the past. If freedom of religion, for example, is a natural right, government may never justly violate it, regardless of the fact that governments have disregarded this right countless times throughout history. Freedom of religion is more than a mere tradition.

Nor is a single-minded focus on history less “tenuous” than an inquiry into the nature of individual rights. History teaches us nothing without legal philosophy to guide us. Ironically, when Justice John Paul Stevens argued against overruling the Slaughter-House Cases because he thought reviving the privileges or immunities clause would open the door to a host of unenumerated rights—arguing, in effect, that it’s too “tenuous”—Thomas answered that “tenuousness” was not a good argument for denying legal protection to unenumerated rights. “The mere fact that the Clause does not expressly list the rights it protects,” he wrote, “does not render it incapable of principled judicial application.”

But the same is true of the due process clause.

Given how few rights have been respected by governments throughout history, an overemphasis on past practice would bar courts from recognizing new types of freedom made possible by changes in technology or circumstances—say, the right to be free of intrusion by new surveillance technologies, or the right to express oneself in new forms of media. Only the kind of philosophical inquiry Thomas calls “tenuous” can accomplish that. The 14th Amendment’s authors were aware of this. The phrase “privileges or immunities of citizens of the United States” is an extraordinarily open-ended term, one they knew referred not just to traditionally recognized freedoms, but also to natural rights—including those that courts and legislatures have not yet acknowledged.

Relying on history to determine which freedoms qualify as “privileges or immunities” would transform that open-ended constitutional guarantee into a narrow list of preapproved permissions that judges think have sufficient ancestry to be extended to citizens. But the founding fathers rejected that view. The Constitution they wrote protects not just a list of specific actions that have roots in historical tradition, but “liberty”—a word that just means an infinite number of freedoms. Erasing the Constitution’s promise to protect that liberty from arbitrary action would mark a massive and dangerous transformation in our legal conception of freedom.

The Future of Substantive Due Process and American Liberty

These are not abstract concerns. Real lives are affected every day by how courts interpret constitutional phrases that are rooted in philosophical abstractions. And Thomas’ Dobbs opinion suggested how high the stakes are: He would “reconsider all of this Court’s substantive due process precedents.” Given that substantive due process has been relied on for centuries to protect not just abortion but every constitutional right from private property and interracial marriage to sexual privacy and gun rights, that is an astonishingly broad proposition. The elimination of substantive due process would pull the rug out from under these as well as other elements of the “liberty” that the Constitution promises to secure.

Whether that will happen, time alone can tell. But it’s clear that defenders of the constitutional tradition of due process of law—the oldest and most basic of all our constitutional rights—cannot resist assaults on this right without understanding and articulating this ancient guarantee of the rule of law. Since the days of Holmes and Frankfurter, judges have repeatedly sought to evade their responsibility to use the tools of legal philosophy to protect individual liberty, often viewing this duty as “undemocratic.” It’s up to the majority, legal positivists argue, to decide what rights the government will or won’t respect, and broader philosophical questions aren’t for judges to resolve.

That’s wrong—and it leads to senseless and self-contradictory constitutional law. Worse, it saps our Constitution of its power to perform its most important role: protecting “the blessings of liberty” against the tyranny of the majority. Only a firm grasp of the meaning of constitutional guarantees like “the due process of law” can maintain that protection.

Copyright © The UnPopulist, 2022.

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