This article from Reason magazine discusses a split between libertarians and conservatives on certain aspects of judicial philosophy. In this post, I will focus on its discussion of the libertarian effort (opposed by many conservatives) to enforce economic liberties through, among other things, Lochner-style substantive due process. Although I'm philosophically a small-l libertarian (by which I mean that I lean liberal on social policy and pro-market on economics), I disagree with this effort because it's not jurisprudentially sound.
Substantive Due Process
The article principally suggests that libertarian scholars sympathize with the use of the so-called substantive due process doctrine embodied most famously in Lochner v. New York, 198 U.S. 45 (1905).
In Lochner, the Supreme Court struck down a state law prohibiting an employee from working for more than ten hours per day or sixty hours per week, ruling that the “general right to make a contract in relation to his business is part of the liberty of the individual protected by the [Due Process Clause of the] Fourteenth Amendment.” Id. at 53. Although Lochner itself has effectively been overruled, the substantive due process doctrine is still very much alive today, albeit in a form that protects social rather than economic rights. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (collecting cases).
The Fourteenth Amendment’s Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Clause undisputedly protects against deprivations of life, liberty, or property that are procedurally deficient. In my opinion, the best—and, frankly, obvious—reading of the Clause maintains that it protects only this; that “liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law.” Roe v. Wade, 410 U.S. 113, 173 (1973) (Rehnquist, J., dissenting).
Under the substantive due process doctrine, however, the Clause also “‘protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.’” Glucksberg, 521 U.S. at 719-20 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)) (some internal quotations omitted).
As noted above, the substantive due process doctrine has been invoked to protect social liberties as well as economic ones, and to immunize them from interference by the democratic process. Indeed, this is its primary use today. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (invoking the Due Process Clause to strike down a statute criminalizing homosexual sexual activity); Planned Parenthood v. Casey, 505 U.S. 833, 869, 874 (1992) (plurality opinion) (holding that a woman’s right to terminate her pregnancy is a protected interest under the Due Process Clause).
Strangely, the more socially liberal justices (along with a number of liberal scholars) oppose Lochner while supporting the analysis in cases like Lawrence and Casey. In an apparent attempt to justify this discrepancy, the plurality opinion in Casey argued that “the interpretation of contractual freedom protected in [Lochner’s progeny] Adkins [v. Children’s Hospital] rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.” Casey, 505 U.S. at 861-62. That may be, but it’s not why Lochner is wrong. Just as “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,” Lochner, 198 U.S. at 75 (Holmes, J., dissenting), it does not enact a rival economic theory either. To hold that Lochner was wrong because the economic theory underlying it was wrong is to hold that Lochner would have been right had the underlying economic theory been right—that is, it is to hold that constitutional law boils down to a policy dispute. This can’t be, so Casey’s view must be wrong.
By the same token, the Constitution doesn’t ordain one moral conception of liberty over another, in matters such as abortion or homosexuality. To hold that it does is to resurrect Lochner—after all, if the Due Process Clause protects social liberties, why wouldn’t it also protect economic liberties? And because almost every law affects liberty—because law by definition constrains liberty—the Supreme Court has conferred immense, and unwarranted, power on itself by adopting, and reviewing laws under, the substantive due process doctrine. As the great liberal originalist Justice Hugo Black once noted, “any limitation upon [the Supreme Court’s] using the [substantive] due process philosophy to strike down any state law, dealing with any activity whatever, will obviously be only self-imposed.” See Griswold v. Connecticut, 381 U.S. 479, 523-24 (1965) (Black, J., dissenting).
Time has borne out Justice Black’s point, as the Court’s substantive due process case law has become increasingly untethered from any limiting principle. In Lawrence v. Texas, the Court quoted the Casey plurality’s statement that “‘[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’” Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851). Referring to this quixotic statement as Casey’s “famed sweet-mystery-of-life passage,” Justice Scalia trenchantly observed that, if it “calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.” Lawrence, 539 U.S. at 588 (Scalia, J., dissenting) (emphasis omitted). Indeed, this rule could outlaw any law, even the most necessary and inarguable: what if one’s “concept of existence” and “meaning” includes pedophilia or serial murder? Of course, no Supreme Court would legalize these monstrosities; the point is simply that, under this rule, anything can be declared a constitutional right.
Such a rule embodies the danger of substantive due process analysis: based on the flimsiest reading of the Constitution’s text, it confers on judges the de facto power to cast a permanent veto on any legislation of which they disapprove, one that can only be bypassed by constitutional amendment. Justice Holmes once expressed the better understanding of a judge’s role—one which is unfortunately lost on many liberal and libertarian legal scholars alike: “I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Tyson & Brother v. Banton, 273 U.S. 418, 446 (1927) (Holmes, J., dissenting), quoted in Griswold, 381 U.S. at 523 n.19 (Black, J., dissenting).
Rational Basis Review of Non-Fundamental Liberty Interests
The foregoing discussion has primarily pertained to liberty interests that the Supreme Court deems “fundamental” under the Due Process Clause. Among laws that infringe such interests, only those that are narrowly tailored to achieve a compelling state interest will survive. Glucksberg, 521 U.S. at 721. However, all other laws are subject to so-called rational basis review, under which non-fundamental liberty interests “may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.” Lawrence, 539 U.S. at 593 (Scalia, J., dissenting). Because rational basis review is very lenient, and virtually every law withstands it, it is hard to become too upset about it.
But even rational basis review wrongly assumes that the procedural protection conferred by the Due Process Clause has some substantive component. For this reason, I would reject it. Whether the standard of review is strict or lenient, substantive due process review itself is the problem.
This is as good a place as any to note that the Court’s decision in Lawrence, striking down a law that criminalized homosexual sexual activity, appeared to employ rational basis review, because of the wording of its holding and because the Court did not classify the liberty interest at issue therein as a fundamental right. See id. at 578 (holding that “[t]he Texas statute furthers no legitimate state interest which can justify” abrogating the liberty interest at issue (emphasis added)); id. at 586 (Scalia, J., dissenting). Accordingly, one would expect the Court’s analysis to focus on whether the state interest claimed was legitimate and whether the law was reasonably related to that interest. Instead, its opinion focuses almost solely on the importance of the liberty interest. See, e.g., id. at 592 (Scalia, J., dissenting) (quoting examples from the majority opinion showing this emphasis). If this is “rational basis” review, it is unrecognizable in all but name.
I hasten to add that I agree wholeheartedly with the policy result in Lawrence. Indeed, I think that the Texas law criminalizing gay sexual activity was outrageous and unjust, and would have voted to repeal it had I been a member of the Texas Legislature. But individual conscience is not constitutional law, and anyone who decides otherwise should be prepared to live with the consequences: constitutional law would become lawless, and cases would be determined only by the whims and caprices of the nine justices sitting on the Supreme Court.
The Case for Stare Decisis
I acknowledge that substantive due process has been around for 123 years and probably isn’t going away completely. Even the originalist justices, Justices Scalia and Thomas, have at times accepted the doctrine of substantive due process in its more modest articulation, if only for stare decisis (that is, precedent-respecting) reasons. Under that articulation, the doctrine “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition.” Glucksberg, 521 U.S. at 720-21. If this principle is applied rigorously, so that it only includes rights that American law has historically left alone (such as, for instance, the right to have children, see id. at 720), it will “rein in the subjective elements that are necessarily present in due process judicial review,” id. at 722.
Although I disagree with it as a matter of constitutional law, the principle that the government cannot interfere with truly fundamental rights that do not expressly appear in the Constitution is at least arguable—one could argue that, since the Constitution was adopted against a common law background, the federal and state legislatures over which it is supreme can’t interfere with rights in spheres of activity that the common law simply did not regulate at all, and that American law has not regulated up until some recent enactment that is being challenged.
This argument would not be entirely novel. The Court has ruled, for instance, that the text of the Eleventh Amendment must be read in light of its history and common law background. Specifically, it has held that the Amendment’s text alone does not fully define the scope of the sovereign immunity of the several states because the Amendment was simply intended to clarify the part of the broader common law immunity that had been unclear. See Alden v. Maine, 527 U.S. 706, 723-24 (1999); see also Hans v. Louisiana, 134 U.S. 1, 16, 18 (1890).
Two further observations here suffice: First, if the courts proceed under the above justification, it should be very clear that the government had historically refrained from regulating a protected sphere of activity because it was thought to be outside the reach of government power and/or to infringe a fundamental individual right, rather than because that regulation had been contemplated but deemed unnecessary or imprudent at the time, or for other reasons that would undermine a claim that the government could never regulate it. As a corollary, fundamental rights should be derived from an essentially unblemished historical record of non-interference. Rules such as these will prevent the Court’s analysis from becoming hopelessly subjective.
Second, even if the common law background analysis were valid, there would be no reason to tether it to a clause that, on its face, concerns process and not substance.
Although I would dispense with the principles underlying substantive due process entirely in constitutional adjudication, I would find them less objectionable if they were consistently justified and applied in this way. The more conservative justices do tend to stick to the Glucksberg formulation, and, to their credit, they have no interest in resurrecting Lochner-style review of economic regulations. Also, I haven’t seen a case in which any conservative justice (excluding Justice Kennedy) has voted to recognize a new, previously unprotected constitutional right by invoking due process.
In any event, the principles of stare decisis may also justify upholding, at least, the least controversial applications of substantive due process, such as the constitutional right to have children, because legislatures may have relied on such a right being constitutionally protected and, consequently, may not have bothered to fashion their own right. But its application should not be expanded further (assuming it should be expanded at all) without compelling historical reasons.
The Libertarian Defense of Lochner and its Kindred
The article notes that libertarians have defended a pro-Lochner stance by appealing to the Constitution's structure, in which, they claim, “government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.” It contrasts this stance with the principle of judicial restraint, which it defines as judicial deference to the elected branches in close cases, and suggests that conservatives who oppose Lochner (and who maintain that economic regulations such as the one at issue in the case are constitutional) do so due to judicial restraint.
The article proceeds to argue that conservative Supreme Court justices are being inconsistent observers of judicial restraint when they vote to strike down a handgun ban (D.C. v. Heller, 128 S. Ct. 2783 (2008)), a law that prohibits corporations from using general funds for express political advocacy (Citizens United v. FEC, 130 S. Ct. 876 (2010)), and a local government’s attempt to transfer land from one private party to another using eminent domain (Kelo v. New London, 545 U.S. 469 (2005)).
First of all, as a defense of Lochner, the principle that the Constitution envisions islands of government power in a sea of individual rights misses the point. For a law to be unconstitutional, it must violate some specific provision of the Constitution. It's not enough to say that the Constitution has some philosophical preference for individual rights; it concededly vests some degree of power in the government as well, so actual cases must be decided by reference to constitutional text, not philosophical abstractions. As Justice Holmes said in his Lochner dissent, “[g]eneral propositions do not decide concrete cases.” Lochner, 198 U.S. at 76 (Holmes, J., dissenting).
Second, the chief problem with the article’s logic is its assumption that, if you oppose substantive due process, you must favor judicial restraint.
But Lochner is wrong because substantive due process is wrong, independently of whether judicial restraint is right. As I’ve argued above, the Due Process Clause should be interpreted to provide procedural, not substantive, protection. The state law at issue in Lochner should have been upheld because the Constitution plainly didn't forbid it, not because the case was close and the Court should have tipped the scales in favor of government power.
Moreover, there's nothing inconsistent with thinking, on the one hand, that due process is only a procedural right, and, on the other, that courts should enforce substantive constitutional provisions (such as the first eight Amendments in the Bill of Rights) even-handedly, without putting a “thumb on the scales” in the government’s favor in close cases (as judicial restraint would have them do).
Under this theory, the government should win when a law can only be attacked on a substantive due process theory, but its laws may be susceptible to attack if they contravene, for example, the right to bear arms or the text of the Fifth Amendment's Takings Clause (as was arguably the case in Heller and Kelo, respectively). Note that I’m not arguing here that Heller was necessarily right or that Kelo (in which the government won) was necessarily wrong, only that “to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of [an] application of [the Due Process Clause] deemed to be above and undefined by the Constitution is another.” Adamson v. California, 332 U.S. 46, 91 (1947) (Black, J., dissenting). (This is a point that Judge Wilkinson’s attack on Heller, based on the description of it in the Reason article, seems to have ignored.)
The Privileges and Immunities Clause
The article also discusses the Privileges and Immunities Clause as a vehicle for enforcing individual rights. First and foremost, it discusses it as an alternative method of incorporating the provisions of the Bill of Rights against the states.
Originally, the Bill of Rights only constrained the power of the federal government. However, since the ratification of the Fourteenth Amendment, the Supreme Court has invoked that Amendment's Due Process Clause in order to incorporate select provisions of the Bill of Rights against the states. It has not incorporated all ten Amendments of the Bill of Rights precisely because it is employing the substantive due process doctrine, under which only those rights that the Court deems “fundamental” or “implicit in the concept of ordered liberty” are incorporated. See Palko v. Connecticut, 302 U.S. 319, 319, 323-327 (1937). In other words, due process-based incorporation rests on classic substantive due process principles, and is vulnerable to the same critique. Indeed, it is subject to an additional critique: that the justices of the Supreme Court have arrogated to themselves the power to determine which provisions of the Bill of Rights are truly “fundamental.”
As the Reason article notes, the Privileges and Immunities Clause of the Fourteenth Amendment provides a stronger alternative justification for incorporation, and for complete incorporation at that. That Clause reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As the article suggests, Supreme Court jurisprudence starting with The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), has largely rendered this Clause a dead letter. But I agree with the article that the Privileges and Immunities Clause, by its language and because of compelling historical evidence (discussed in some detail at pages 22 though 28 of the Petitioner’s Certiorari Brief in McDonald v. City of Chicago), should be interpreted to incorporate the individual rights contained in the first eight Amendments in the Bill of Rights to the states. See also Adamson, 332 U.S. at 71-75 (Black, J., dissenting).
However, the libertarian argument goes further than that, suggesting that the Privileges and Immunities Clause protects the “right of armed self-defense” as a fundamental right, regardless of whether the Second Amendment existed. To be fair, there is some historical evidence that the Clause was also intended to encompass unenumerated but fundamental federal rights. See Saenz v. Roe, 526 U.S. 489, 522-27 (Thomas, J., dissenting). Moreover, unlike the Due Process Clause, the text of the Privileges and Immunities Clause clearly refers to substantive rights.
But the lack of specificity in the text of the Privileges and Immunities Clause suggests that an alternative reading is appropriate. After all, as Justice Frankfurter commented in the context of the Due Process Clause, “[i]t would be extraordinarily strange for a Constitution to convey such specific commands in such a round-about and inexplicit way.” Adamson, 332 U.S. at 63 (Frankfurter, J., concurring). As such, based on the history and text of the Privileges and Immunities Clause (passed as part of an Amendment that was ratified shortly after the end of the Civil War), I would read it to require that: 1) the first eight Amendments to the Constitution (that is, the substantive rights found in the Bill of Rights) apply to the States; and 2) the states can't recognize the federal rights of white citizens but deny them to black citizens (or to any other race). The second, non-discrimination principle would apply both to constitutional rights and to other federal rights that do not specifically appear in the Constitution but that states were demonstrably observing as to white citizens. It would act as an Equal Protection Clause about federal rights—which would not be completely redundant, since the text of the Equal Protection Clause itself could be read to concern only a state’s enforcement of its own laws.
Conclusion
The libertarian desire to return to Lochner-style substantive due process is unfortunate. It endorses a doctrine that is plainly incorrect, and that has been used by liberal judges to interfere with the democratic process. Where libertarians have the Constitution on their side, as in their disagreement with Kelo or their proposed method of incorporating the Bill of Rights, I join them. But the substantive due process doctrine should be ended, not expanded, and that is where libertarian jurisprudence and my own part ways.
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