SUBSTANTIVE DUE PROCESS
The U.S. Constitution refers to due process of law in two places:
- Amendment V — “No person shall be … deprived of life, liberty, or property, without due process of law”….
- Amendment XIV (Section 1) — “[N]or shall any State deprive any person of life, liberty, or property, without due process of law”….
The clause in Amendment XIV extends right of due process beyond the jurisdiction of the federal government to the States.
Due process takes two forms:
- Procedural due process is about the treatment of persons according to law. To take an extreme example, a mob lynching is a violation of due process of law (among other things) because the person who was lynched was executed without having been judged without a trial in which a jury of his peers considered the evidence for and against his guilt, and punished by a mob rather than as a result of a judgment of a court following a trial and a verdict of guilty.
- Substantive due process is about barring government from transgressing rights that are not enumerated in the Constitution but which the Supreme Court recognizes as “fundamental” and beyond the reach of statutory law.
What is said to be a leading example of substantive due process is the holding of the U.S. Supreme Court in Lochner v. New York (1905). The Lochner Court decided that a New York State statute which prescribed maximum working hours for bakers violated the bakers’ right to freedom of contract. The Court’s reasoning, however, relied on the Equal Protection Clause of Amendment XIV, which is the route by which unenumerated rights have been invented. Lochner is therefore dismissed as a leading (albeit overturned) example of a substantive-due-process decision.
I admit to agreement with Lochner and similar decisions upholding economic liberty, which — Justice Holmes’s dissent in Lochner to the contrary notwithstanding — is not divisible from liberty in general. I made my case for Lochner many years ago, and I am satisfied with it. Lochner clearly upholds a right which didn’t have to be invented via the Due Process Clause because it is enumerated in the Constitution (Article I, Section 10).
In contrast to Lochner, there are many cases in which substantive due process has been applied to invent rights. I am thinking specifically of Roe v. Wade (1973) and the other substantive-due-process cases mentioned by Justice Clarence Thomas in his concurring opinion in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe:
Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”…
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut (right of married persons to obtain contraceptives); Lawrence v. Texas (right to engage in private, consensual sexual acts); and Obergefell v. Hodges (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised.” Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” [Citations removed throughout.]
The Lochner Court of 1905 did not invent a right. The Griswold, Roe, Lawrence, and Obergfell Courts of 1965-2015 (like the Court in Brown v. Board of Education of 1954), blatantly invented rights (and “facts”) for the purpose of overturning State laws with which majorities of the various Courts disagreed.
I will call special attention to the linch-pin of Griswold, Roe, and Lawrence: the right to privacy. This post sums up my view of that right. Here is a key point:
If privacy were an absolute right, it would be possible to get away with murder in one’s home simply by committing murder there. In fact, if there are any absolute rights, privacy certainly isn’t one of them.
As for Obergfell, see this post and this one, both of which precede by four years the decision in which the Court redefined marriage.
Griswold is probably beyond reach. Lawrence, too. But Obergfell, it seems to me, is still vulnerable — if and only if there is a concerted legal movement to overturn it. I doubt that such a movement can be mounted successfully in this “enlightened” era.
Roe fell, for good reason, because it faced widespread opposition from the day it was decided.
THE REGULATORY STATE
There is bad news and good news on the regulatory front. The bad news (which isn’t news) is that regulatory state (a.k.a. the administrative state) is largely responsible for the decimation of America’s economy (see this and this). The good news is that the regulatory state doesn’t have a constitutional leg to stand on.
The main impetus for the federal government’s costly interference in economic affairs came with the Supreme Court’s decision in Wickard v. Filburn (1942). Wickard gave government the authority to regulate anything and everything that could be tangentially connected to interstate commerce. That decision paved the way for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), which established the doctrine known as “Chevron deference”. Regulatory agencies acquired the authority to shape draconian edicts from vague legislative pronouncements, and to do so with impunity.
Chevron was overturned in 2024, in Loper Bright Enterprises v. Raimondo and a paired case (Relentless, Inc. v. Department of Commerce), without resorting to Lochnerian substantive due process.
There is more hope on the horizon, in the form of Ream v. U.S. Department of Treasury:
[John] Ream wants to distill small quantities of alcohol in his own home for his personal consumption….
… Mr. Ream cannot pursue this hobby because the federal government criminalizes home distilling, which exceeds Congressional authority and is unconstitutional. But it isn’t just home distilling that is at stake. If Congress can prohibit home distilling, what’s to stop it from banning home bread baking, sewing, or vegetable gardening? Practically anything can be outlawed.
John Ream is just one of the millions of victims of Wickard. Perhaps his case — now pending with the U.S. District Court for the Southern District of Ohio, Eastern Division — will be Wickard’s undoing.
But there’s no need to wait for the current Supreme Court to undo the vast harm done by its predecessor. As Attorney Trent D. Laviano says:
The John Ream case appears to be a perfect opportunity for the Court to overturn decades of bad precedent and limit the Commerce Clause to regulating activities which are actually interstate commerce….
While it would certainly be a good thing if the Supreme Court corrected this problem in John Ream, there is no need to wait for that to happen.
Legislation is always preferable to litigation. The time is long overdue for Congress to reassert its constitutional authority and define the proper limits of the Commerce Clause.
The main purpose of the Commerce Clause was not to restrict commerce — and certainly not to restrict intrastate commerce — but to “regulate” commerce across State boundaries. And what did “regulate” mean? To make commerce “regular”; that is, to ensure its free flow according open and agreed rules, and to prevent individual States from obstructing it for the benefit of particular interests.
Here’s to the success of John Ream — and the nation’s economy.
Politics and Prosperity 