Justice Thomas’s ‘Substantive Due Process’ Dare

I n their hysterical reaction to the Dobbs v. Jackson Women’s Health Organization decision, progressives have emphasized that many other rights are at risk now that the Court has rescinded the right to abortion on demand: Precedents protecting the use, sale, and purchase of contraceptives, sodomy, and same-sex marriage could be next to go.

Their Exhibit A is Justice Thomas’s concurring opinion in Dobbs, which calls for a reconsideration of all the Court’s “substantive due process” decisions.

Here, a normal person might ask: What exactly is “substantive due process.” In a nutshell, it is the idea that some rights are so fundamental that the government cannot violate them regardless of the “procedure” it follows.

When the Fifth and 14th Amendments say you cannot be deprived of “life, liberty, or property, without due process of law,” this means you can be deprived of them with “due process of law.” The government can take your life or liberty if it follows the proper criminal procedure — grand-jury indictment, trial by jury, no violation of the Fifth Amendment right against self-incrimination, etc. It can take your property by taxation if the tax is levied by a legislature to which you have consented. It can take your property for public use if it justly compensates you.

The alternative to this doctrine, “substantive due process,” has a controversial history. Though the term itself did not appear until the 1930s, the concept was embraced by many state courts before the Civil War, when state governments were not yet bound by the Fifth Amendment’s due-process clause. Both sides in the antebellum fight over slavery attempted to wield it as a weapon. In the territories, abolitionists claimed that the Fifth Amendment prohibited slavery because it deprived the slave of liberty; slaveholders claimed that the Fifth Amendment kept them from being deprived of their slave property. The Supreme Court in Dred Scott adopted the latter view.

The 14th Amendment, passed after the Civil War, applied the Fifth Amendment’s due-process clause to the states. Since most government regulation in the 19th century still took place at the state level, this elevated the importance of the clause.

From 1890 until 1937, a conservative Supreme Court used the clause to strike down what purported to be “progressive” social-welfare laws. The most infamous example was Lochner v. New York, which held that a law limiting the hours that bakers could work deprived them and their employers of liberty and property (“liberty of contract”).

Progressives of this era saw substantive due process as a means by which conservative judges read their own policy preferences into the Constitution. In his Lochner dissent, Oliver Wendell Holmes famously said that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a laissez-faire economic treatise.

When liberals took over the Court in 1937, they repudiated substantive due process — at least as it applied to economic issues. In the Carolene Products case, in 1938, the Court said it would from now on concern itself with non-economic rights, and the rights of “discrete and insular minorities.” As Justice William O. Douglas argued in Griswold v. Connecticut (1965), “we do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions” (emphasis added).

The liberal justices were afraid of being accused of using the due-process clause as their conservative predecessors had — i.e., of using the “substantive due process” doctrine to reach their own preferred policy outcomes. Thus, in Griswold, which struck down a state ban on the sale and use of contraceptives, Douglas held that while there was no explicit “right to privacy” contained in the Constitution, such a right was contained in “specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from their guarantees that give them life and substance.”

In Roe v. Wade, Justice Harry Blackmun ruled that the unenumerated “right to privacy” identified in Griswold — whether it derived from the liberty clause of the 14th Amendment or the catchall Ninth Amendment — included the right to abortion. Law professor Richard Epstein rightly called Roe “substantive due process by any other name.” By 1992, liberals had exorcised the ghost of Lochner and admitted that abortion was a liberty protected substantively by the 14th Amendment.

Justice Thomas’s concurrence in Dobbs proposes to sweep away Griswold and other substantive-due-process precedents and reconsider our rights under the 14th Amendment’s “privileges or immunities” clause, which holds that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Thomas is certainly right that substantive due process arose as a historical accident. The framers of the 14th Amendment expected the privileges-or-immunities clause to do most of the work of protecting the rights of the former slaves; the amendment’s due-process and equal-protection clauses were somewhat redundant. (It could be argued that the privileges-and-immunities clause contained in Article IV, Section 2 of the Constitution itself sufficed to make the freedmen citizens and protect their civil rights, and thus that the entirety of Section 1 of the amendment was redundant.)

In the end, it probably won’t make any difference. The privileges-or-immunities, due-process, and equal-protection clauses are fungible. Between them, they can be interpreted to protect just about any right under the sun, if a judge is inclined to interpret them that way. Any time a judge believes a right to be “fundamental,” he can point to one of them as protecting it. In Brown v. Board of Education (1954), the Court held that states violated the equal-protection clause of the 14th Amendment when they segregated public schools. In a companion case, it held that Congress had violated the Fifth Amendment’s due-process clause — it has no equal-protection clause — by segregating D.C.’s public schools.

While it is certainly true that unenumerated, fundamental rights do exist, the doctrine of substantive due process is not the only means of identifying and protecting those rights. Many on the left have seized on Thomas’s call to “reconsider all of this Court’s substantive due process precedents” as evidence of the conservative majority’s sinister intentions, but they have ignored what Thomas writes next:

After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. . . . To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.

That Thomas is right about the drawbacks of the Court’s substantive-due-process decisions should be obvious. And that he makes a point of noting that the due-process clause isn’t the only constitutional provision that could protect the rights at issue should make his fellow justices less wary of heeding his call to reconsider those decisions.