The Fourteenth Amendment Due Process Clause

Substantive Due Process

The most controversial due process doctrine is “substantive due process.” The doctrine has little support in the text and history of the Constitution, and it has long ignited political debate. For good reason: substantive due process replaces popular sovereignty with the views of unelected Supreme Court justices.

The Constitution itself is ordinarily the source of constitutional rights. Its provisions are the fruit of political debate and compromise, the clearest evidence of the People’s will. Not all constitutional provisions, of course, are perfectly clear. To understand vague terms, courts usually examine prior history, other constitutional provisions, and subsequent practice. None of these offer strong support for the rights protected by substantive due process.

First, those rights find little support in the constitutional text. The Due Process Clause guarantees “due process of law” before the government may deprive someone of “life, liberty, or property.” In other words, the Clause does not prohibit the government from depriving someone of “substantive” rights such as life, liberty, or property; it simply requires that the government follow the law. One scholar has therefore described “substantive due process” as an oxymoron, akin to “green pastel redness.”

Nor does the Bill of Rights, incorporated into the Fourteenth Amendment Due Process Clause, provide textual support for substantive due process. The most that can be said is that the doctrine arises from the “penumbras” or “emanations” of the “specific guarantees in the Bill of Rights” – not from those “specific guarantees” themselves. Griswold v. Connecticut (1965).

One might try to solve this textual deficit by locating substantive due process rights in another provision of the Fourteenth Amendment, such as the Privilege or Immunities Clause or the Equal Protection Clause. But this would raise another set of textual and historical difficulties.

Second, history provides little support for substantive due process. Until the late nineteenth century, no court held that due process protected substantive rights. The first Supreme Court opinion to even suggest this was The Dred Scott Case (1857). Scott, a slave, argued that he was free because his owner had taken him to territory where slavery was banned. Chief Justice Taney notoriously replied that declaring Scott to be free would deprive his owner of property without due process of law. The Republicans who enacted the Fourteenth Amendment meant to repudiate that notion, not to apply it against the states. Aside from The Dred Scott Case, there is little historical evidence that courts or Congress thought due process limited the substance of legislation.

Third, substantive due process has consistently generated political controversy. The Court first applied the doctrine at the turn of the twentieth century to invalidate state labor and wage regulations in the name of “freedom of contract,” a notion mentioned nowhere in the Constitution. Those who opposed the labor union movement supported the doctrine. But it became increasingly unpopular with progressives and mainstream Americans during the Depression, when the Court used it to thwart New Deal regulations.

The national dispute ended in a showdown. President Franklin Roosevelt pressured the Supreme Court to abandon substantive due process. In response, a pivotal justice changed sides, and the Court ultimately repudiated the doctrine. This episode illustrates how hard it is to change the Court’s constitutional jurisprudence – even when it flies in the face of the text approved by the People.

The contemporary version of substantive due process has likewise upended democratic politics. The most obvious example is abortion. By putting the issue beyond the reach of ordinary politics, in Roe v. Wade (1973), the Court precipitated the culture war, the re-alignment of the political parties, and the politicization of Supreme Court appointments.

Some defend substantive due process on the ground that it protects fundamental rights. But Americans disagree about what should count as a fundamental right, and many think the fairest way to resolve that disagreement is through political debate. Such debates are not futile; they have resulted in a number of amendments that do expressly protect fundamental rights, such as the freedoms of speech, assembly, and religion, and the right to vote.

Perhaps the best argument for maintaining substantive due process is that the Court has a duty to follow precedent. On one hand, sometimes people rely on past decisions; enforcing those decisions allows people to plan their lives and move on. On the other hand, the Court’s chief duty is to enforce the law enacted by the People, not to perpetuate doctrines of its own making.

Given substantive due process’s sordid history, it is unsurprising that justices continue to disagree about it. Some current justices would extend it; some would scale it back; and others would drop it entirely. Regardless of the Court’s future approach, one thing seems certain: substantive due process will continue to foment political controversy.

Incorporation of the Bill of Rights

By contrast, the incorporation of the Bill of Rights against the states—applying some of its provision to state governments as well as the federal government—is far less controversial. Although the text and history of the Due Process Clause may not support the incorporation of every provision of the Bill of Rights, between the Due Process Clause and the other clauses of the Fourteenth Amendment, incorporation is on solid ground.

Some continue to urge the Court to apply all of the provisions of the Bill of Rights against the states. Conversely, others argue that applying some provisions to the states was a mistake.

In particular, some scholars and judges argue that it makes little sense to apply the Establishment Clause of the First Amendment to the states. The Establishment Clause originally prohibited Congress not only from establishing a federal religion, but also from interfering in a state establishment. In part, then, the Clause protected state establishments; it didn’t prohibit them.

Despite this history, the Court is unlikely to reverse course. Prohibiting state religious establishments has broad political support, and it reinforces the religious liberty secured against the states by the incorporation of the Free Exercise Clause.

One of the most vibrant and contentious debates relating to the Due Process Clause concerns the “substantive due process” jurisprudence. Under this area of law, the Supreme Court has protected rights not specifically listed in the Constitution. Currently, such unenumerated rights include the right to direct the education and upbringing of one’s children, the right to procreate, the right to bodily integrity, the right to use contraception, the right to marry, the right to abortion, and the right to sexual intimacy. For well over a century, the Court has grappled with how to discern such rights. This controversy continues to this day, and the Court’s 2015 decision in this area—Obergefell v. Hodges—breaks new ground in that storied debate.

The debate about whether the Court should be in the business of recognizing such rights has raised legitimate concerns on both sides. On the one hand, when the Court strikes down a state law (for example, a prohibition on same sex marriages) because it violates a right that is not specifically mentioned in the Constitution, the Court runs the risk of facing amplified charges of “judicial activism.” It is one thing when the Court strikes down a legislative enactment based on some specific right spelled out in the Constitution. It is quite another thing when it invalidates such an enactment based on a right that has no textual basis within the Constitution. The fear is that five Justices on the United States Supreme Court will make law for the entire nation based solely on their personal policy preferences, given that they have no text to guide or constrain them. As the Court itself once said, it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights (1992).

On the other hand, the idea that the Constitution only protects rights that are specifically mentioned is also deeply problematic. Even the staunchest textualist must account for the Ninth Amendment, which states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people.” As such, the Amendment provides a textual warrant for finding textually unenumerated rights in the Constitution. The ethos behind the Ninth Amendment also seems sound. No Constitution could purport to enumerate every single right that a people might deem fundamental. On natural law or other grounds, most individuals would probably bristle at the idea that they lacked a constitutional right to marry. Finally, as a purely doctrinal matter, over a century of precedent guarantees such unenumerated rights under the Fourteenth Amendment’s Due Process Clause. Few if any Justices on the current Court appear to take the position that all the rights listed above should be rolled back entirely.

The live debate, then, is not whether to recognize unenumerated rights, but how to do so. While a full discussion of the methodological debate cannot be elaborated here, we can at least contrast two major approaches.

In 1997, the Court issued a landmark decision that set forth a more restrictive methodology. The issue in Washington v. Glucksberg was whether an individual had the right to physician-assisted suicide. The Court rejected the existence of any such right. In doing so, it articulated a general two-part test for how such rights should be found. First, it observed that the right had to be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.” Second, it required a “careful description” of the liberty interest at issue. The first restriction—that a right must be “deeply rooted” in history–ensured that due process would be, as one scholar has put it, “backward-looking” in order to “safeguard[] against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.” The second restriction—a “careful description” of the liberty interest at stake—ensured that jurists would not be able to claim that a novel right was “deeply rooted” in history by describing the right at  a higher level of generality. For instance, arguing that while physician-assisted suicide had not been traditionally protected, the “right to control one’s own body” was. (As this example suggests, the level of generality at which one casts a particular right will often determine whether a tradition supports it.)

In 2015, however, Obergefell v. Hodges dramatically changed the substantive due process methodology. Obergefell will probably be best known—now and in the future—as the case that held that same-sex couples had the right to marry. However, its more overarching contribution to constitutional law may well lie in its seeming wholesale revision of the Glucksberg test. After all, under Glucksberg, it was clear that same-sex marriage was not “deeply rooted in this Nation’s traditions and history.” And if the right had to be specifically described in order to be protected, then the “right to marry” is too general to protect the “right to same-sex marriage.”  So how did Obergefell reach its result?

The answer was, as Chief Justice Roberts noted in dissent, that Obergefell “effectively overrule[d]” Glucksberg. First, it put an end to the idea that the due process methodology was backward looking. Amplifying a comment he had made in a 2003 case, Justice Kennedy’s majority opinion observed that “[t]he nature of injustice is that we may not always see it in our own times.” He elaborated: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the freedom of all persons to enjoy liberty as we learn its meaning.” Put differently, Justice Kennedy observed that the refusal of the Framers of the Fourteenth Amendment to specify which liberties were protected meant that they intended to leave the meaning of that concept to the judgment of subsequent generations. In doing so, he struck the shackles of history from the due process analysis.

Similarly, Obergefell also challenged—although less categorically—the notion that the Court had to offer a “careful description” of the right. Justice Kennedy observed that while the “careful description” methodology “may have been appropriate” for the right at issue in Glucksberg (physician-assisted suicide), “it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” He noted that when interracial couples or prisoners sought to marry, the Court did not construe the right as the right of interracial couples to marry or the right of prisoners to marry, but simply as the right to marry. He simply rejected the idea that the Court should not climb up the ladder of generality in analyzing the right presented. And while he explicitly declined to overrule Glucksberg on this point, he also did not offer a principled distinction between why the rights of marriage and intimacy might differ from other rights.

Obergefell represented a clear victory for those who believe, as many progressives do, in a more expansive vision of substantive due process jurisprudence. At the same time, it did not announce unlimited discretion for the judiciary in this area. Instead, it endorsed the approach taken in a canonical dissent by Justice Harlan in the 1961 case of Poe v. Ullman. The Poe dissent rejected any formulaic approach to substantive due process in favor of a more open-ended common law approach whereby courts addresses questions about fundamental rights case-by-case, striving in each decision to balance the Constitution’s respect for individual liberty and the demands of organized society. It remains to be seen what future rights such an approach might yield.