Making Sense of Substantive Due Process (Part I)

Substantive due process is a doctrine used by some Supreme Court Justices to protect individual liberties and natural rights that are not mentioned in the Constitution. Before studying Constitutional law, I was adamantly against the use of this doctrine because it allows Justices the freedom to introduce their opinions and biases instead of deciding cases based on the law. For instance, both Dred Scott v. Sanford (1857, protect the slave property of owners) and Roe v. Wade (1973, protecting abortion) used substantive due process but were horribly decided. In Dred Scott Justices protected slave owner’s property rights but never considered the rights of slaves and in Roe the Justices protected the rights of pregnant women but never considered the rights of the unborn. Natural rights should be about protecting the rights of all persons, not just a few at the expense of others. Natural rights should not contradict or conflict with other rights. Because of decisions such as Dred Scott and Roe, I opposed the substantive due process doctrine. But just because errors were made using substantive due process, it does not mean the doctrine is not sound law. After all, the equal protection clause was misinterpreted for decades after Plessy v. Ferguson (1896, separate but equal doctrine), but that does not mean the equal protection clause was not sound law. Keep in mind, substantive due process is not much different than when the Court interprets implied powers. The Court often implies federal legislative powers even when the powers are not enumerated. Therefore, the Court implicitly interprets the Constitution all the time. This can be just as dangerous as the fears substantive due process will input judge’s biases and opinions into laws. For instance, in McCulloch v. Maryland (1819) Justice Marshall wrote the power to incorporate a National Bank could be implied from the Necessary and Proper Clause to carry out the government’s taxing power. Because of this ruling the Commerce Clause has been interpreted to imply the federal government has the power to control all manufacturing and just about anything economic in nature. The Court’s history is filled with hundreds of implied power cases. Finally, it is often argued that originalism and substantive due process cannot be reconciled and this is problematic since I consider myself as an originalist interpreter of the Constitution. However, I believe that originalism and substantive due process can be reconciled through the original intent of the founders for both the Ninth Amendment and or the Privileges and Immunities clause of the Fourteenth Amendment.

Many will argue incorrectly that the Constitution and henceforth the United States is a democracy. Actually, the Constitution put forth a Republican form of government. While many aspects of the Constitution support democratic ideals but the separation of powers, checks and balances, and federalism doctrines support many non-democratic principles. For instance, the electoral college may prevent presidential candidates with the highest popular vote from winning an election. In the 2016 election this prevented California (the most populous and liberal state) from deciding the outcome of the election. Another example is how all states regardless of population have the same representation in the Senate. Furthermore, many types of bills or procedures require super majorities to pass the House and Senate (not just a democratic majority). The fact the President and the Supreme Court can void democratically passed legislation by Congress is the best example of how separation of powers and our check and balances prevent majorities from having too much power. These are a few of many examples where the design of the Constitution is to limit the power of the democratic majority. The reasons for these security measures are explained best by Madison in Federalist Paper #10 where he highlights the concern over factions (majorities or powerful special interest groups) that will use their power to silence or limit the rights of minority groups. Madison’s fears have come to fruition for a variety of reasons outlined below.

First, many Supreme Court justices practice the use of judicial restraint to uphold questionable legislation. This process “under enforces the Constitution” because Justices believe Congress and States are acting in good faith and give them the benefit of the doubt. Secondly, the Supreme Court does not enforce natural rights within the Bill of Rights equally. For example, for political and commercial free speech the Court uses different levels of scrutiny to render decisions. What’s worse, government power to control, for instance, economic rights are absolute and often conflict with individual liberties. For example, in United States v. Carolene Products (1938), the Court outlines in Footnote Four of the case decision, a few minor exceptions where the Court may restrict a federal or state law which violates the rights of individuals. But Footnote Four fails to mention hundreds of other instances where a law may violate the rights of individuals. Hence, many laws violating the rights of individuals will be held Constitutional using a rational basis test proposed in Carolene Products. In fact, the decision in Carolene Products denied the company the right to sell their “filled milk” products across state lines. Brandies briefs for the case contained false information claiming filled milk products were far less healthy than milk. In essence, the milk lobby squashed their competition with the help of Congress since filled milk was cheaper than milk. This was not only prejudicial; their evidence was proven to be wrong: Filled milk products were healthier for humans than real milk. Regardless, no lawful company should have its rights violated at the expense of another company. Thirdly, the Supreme Court upholds laws and statutes (even if they violate the rights of individuals) because they support what the majority or a powerful special interest group want (like the Carolene Products example above). Consider how majority rule and judicial restraint kept slavery alive for nearly 100 years after our independence with rulings such as upholding the Fugitive Slave Act of 1793 in Prigg v. Pennsylvania and Jones v. VanZandt even though Congress has no enumerated power to legislate over the issue of slavery (the Fugitive Slave Clause is in Article 4, which is a compact between the states, it is not an enumerated power for Congress). Moreover, majority rule and judicial restraint led to some of the worst decisions in our history: Plessy v. Ferguson (1896, separate but equal doctrine), Buck v. Bell (1927, compulsory sterilization), and Korematsu v. United States (1943, the interment of a race of people). Even more recent decisions such as Quinn v. Nevada (2003) and New Orleans v. Dukes (1976) show the effects of majority rule and the power of special interest groups. In Quinn, the Court upheld a procedure by the Nevada legislature to remove a two / thirds majority within its Constitution to pass a budget and in Dukes the Court held a New Orleans law removing all but one company for vending machines was constitutional. In Kelo v. New London (2005) the Court held the taking of private property for private reasons was Constitutional if the result is to better the community. This means nobody’s property is secure from government intrusion and confiscation if a majority in the community feel it is necessary. In Grutter v. Bollinger (1997) the Court has held raced based standards for law school admissions to be Constitutional. In other words, if a majority of persons feel that social justice in the form of reverse discrimination is justified to make up for previous racial discriminatory acts against African-Americans, then it is legal. Let me be clear, no discrimination is justified in the Constitution. Just because a majority of Americans or a special interest group hold a certain belief, it does not make it right.