Substantive Due Process?

I have to quibble with Sandefur’s explanation of substantive due process—and this quibble is purely a matter of semantics—but considering his level of expertise and the distinguished work that he has done in the past regarding this issue—the point needs to be made.

I agree with everything that his post says in terms of government actions needing to be justified by “right”—and that the substantive rights that have been recognized under the doctrine of substantive due process are properly recognized. I’m just not sure if the due process clause of the 14th Amendment properly has anything to do with these substantive rights. And before reading this post, I wasn’t sure if Sandefur did either.

After learning, from Sandefur (and others—Randy Barnett, Akhil Amar, Michael McConnell) about the history of the “privileges or immunities clause,” of the 14th, I assumed that critics like Robert Bork were correct in categorizing substantive due process as an oxymoron.

The text of the clause is confusing—on the one hand, a plain reading of the clause does seem to imply that it is a purely “procedural” clause. Government can’t take your life, liberty, or property, unless government gives you due process—which is a fair trial complete with notice and an opportunity to be hear. Yet, on the other hand, the words “life, liberty or property” are explicitly mentioned—and their explicit mention somehow implies that there is something very important about these rights—rights that are mentioned by name numerous times in the Amendments to the Constitution. Moreover, other important founding authority demonstrates that these specified rights are something vital: The Declaration of Independence refers to “life and liberty” as “unalienable rights.” And numerous writings of other heavyweights—Locke, Madison, et al.—likewise refer to “property” as an inalienable natural right.

Yet, according to Robert Bork, what we think of as vital substantive interests turned out to be not so important after all:

The “unalienable rights” of the Declaration turned out, of course, frequently to be alienable. The Fifth Amendment to the Constitution, for example, explicitly assumes that a criminal may be punished by depriving him of life or liberty, which certainly tends to interfere with his pursuit of happiness.

Slouching Towards Gomorrah, p. 57.

The due process clause of the 5th and the 14th do seem to say that government can’t deprive individuals of these vital rights, unless there is a fair and impartial process. But what those clauses don’t seem to say—on their face—is that we have any substantive right to life, liberty or property. But I would go so far as to say that the due process clause “hints” something in that direction by specifically naming “life, liberty, & property” as important enough to make it to a named list and that government’s actions will be constrained in some way when these rights are at issue.

Also the “equal protection” clause of the 14th—which today guarantees a substantive right of equality on issues of race, gender, religion, ethnicity, and others (with varying degrees of protection)—also, on its face, seems to be a purely procedural clause. If there are general laws on the books for things such as murder, assault, battery, rape, etc., government must apply those laws equally to all groups or all individuals; government may not selectively withdraw groups or individuals from the general protection of those laws, or provide a greater or lesser degree of protection to some over others. And this is what many governments—certainly in the south, but also in the north—did to blacks since before the civil war, after the civil war, and up until Jim Crow. If the Klan wanted to terrorize, beat up or even murder a black, or a white who did business with blacks, in order to “toe the color line,” the local Southern law enforcement officials wouldn’t equally apply the general laws of murder, assault, terroristic threats, tortious interference with contracts—against the offenders, or on behalf of the victims.

But the equal protection clause on its face provides no substantive guarantee of equality. Government may, seemingly consistent with that clause, draw legal distinctions between blacks & whites, men & women, so long as all other generally existing laws are applied in an equal manner.

Yet that clause does mention the word “equal” as deserving some important status. Could it be that we have a substantive right to equality, as well as a procedural one? Yes, I think we do. And I think the framers of the 14th Amendment thought so too.

So where do our substantive rights—rights to “life, liberty, and property” on the one hand, and “equality” on the other—properly derive in our constitutional order? Regarding states and their potential infractions, the “privileges or immunities clause of the 14th”; regarding the federal government, the 9th Amendment [as well as the "Takings" clause of the 5th]; and regarding any government—federal, state, local, or international—the Declaration of Independence.

Now, the privileges or immunities clause was gutted in the Slaughterhouse cases. So the Court had to find ways to properly channel these rights, in the absence of using that clause. I think they made good second choices: Given that “the P or I” clause was off limits, where would you “find” a substantive right to “life, liberty or property”? Why where the words “life, liberty, or property” appear in the text—the due process clause. And where would we find a substantive right to “equality”? Why where the word “equal” appears in the text—the “equal protection” clause.

Indeed, because the privileges or immunities clause doesn’t specifically reference words like life, liberty, property, equality, etc., I suppose one could argue that there is more textual support in those other clauses—since they do specifically reference those terms. But I think, a proper understanding of the privileges or immunities clause, as well as of the political philosophy that founds this nation, should lead us to conclude that those substantive rights do indeed exist, that government indeed must respect them, and that the proper places for incorporating those rights are as I have laid out.