Justice Souter’s History of Substantive Due Process

As a final review, you might want to read Justice Souter’s history of substantive due process in his Glucksberg concurrence:

1. When the physicians claim that the Washington law deprives them of a right falling within the scope of liberty that the 14th Amendment guarantees against denial without due process of law,[1] they are not claiming some sort of procedural defect in the process through which the statute has been enacted or is administered. Their claim, rather, is that the State has no substantively adequate justification for barring the assistance sought by the patient and sought to be offered by the physician. Thus, we are dealing with a claim to one of those rights sometimes described as rights of substantive due process and sometimes as unenumerated rights, in view of the breadth and indeterminacy of the “due process” serving as the claim’s textual basis. The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action. Although this practice has neither rested on any single textual basis nor expressed a consistent theory (or, before Poe v. Ullman (1961), a much articulated one), a brief overview of its history is instructive on two counts. The persistence of substantive due process in our cases points to the legitimacy of the modern justification for such judicial review found in Justice Harlan’s dissent in Poe,[2] on which I will dwell further on, while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim.

Before the ratification of the 14th Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either Due Process Clauses like that of the 5th Amendment (and later the 14th) or the textual antecedents of such clauses, repeating Magna Carta’s guarantee of “the law of the land.” On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes.

Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the “social compact,” while making clear its power to review constitutionality in those terms. Goshen v. Stonington (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as “partial” legislation violating the state constitution’s “law of the land” clause. Bank of the State v. Cooper (Tenn. 1831). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the state’s due process clause. Wynehamer v. People (1856). The statute was deemed an excessive threat to the “fundamental rights of the citizen” to property. See generally, E. Corwin Liberty Against Government (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations.

Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the 14th Amendment, by making it clear on several occasions that it too had no doubt of the judiciary’s power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative acts under review. See, e.g., Calder v. Bull (1798) (opinion of Chase, J.). But in Fletcher v. Peck (1810), the Court went further. It struck down an act of the Georgia legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good-faith purchasers of property conveyed by the original grantees. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post facto laws, laws impairing contracts in Article I, § 10, of the Constitution; and “general principles which are common to our free institutions,” by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically “legislative” act.

Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the 14th Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford (1857). Unlike Fletcher, Dred Scott was textually based on a Due Process Clause (in the 5th Amendment, applicable to the national government), and it was in reliance on that Clause’s protection of property that the Court invalidated the Missouri Compromise. This substantive protection of an owner’s property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, the implication being that the Government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here.

After the ratification of the 14th Amendment, with its guarantee of due process protection against the States, interpretation of the words “liberty” and “property” as used in Due Process Clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley’s dissent in the Slaughter-House Cases (1873), in which he said that a person’s right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be “arbitrarily assailed.” After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e.g., Bartemeyer v. Iowa (1874); Munn v. Illinois (1877); Railroad Comm’n Cases (1886); Mugler v. Kansas (1887). See generally Corwin, Liberty Against Government (surveying the Court’s early 14th Amendment cases and finding little dissent from the general principle that the Due Process Clause authorized judicial review of substantive statutes).

The theory became serious, however, beginning with Allgeyer v. Louisiana (1897), where the Court invalidated a Louisiana statute for excessive interference with 14th Amendment liberty to contract, and offered a substantive interpretation of “liberty,” that in the aftermath of the so-called Lochner Era has been scaled back in some respects, but expanded in others, and never repudiated in principle. The Court said that 14th Amendment liberty includes “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.” “[W]e do not intend to hold that in no such case can the State exercise its police power,” the Court added, but “[w]hen and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises.”

Although this principle was unobjectionable, what followed for a season was, in the realm of economic legislation, the echo of Dred Scott. Allgeyer was succeeded within a decade by Lochner v. New York (1905), and the era to which that case gave its name, famous now for striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound. Compare, e.g., Lochner (finding New York’s maximum-hours law for bakers “unreasonable and entirely arbitrary”) and Adkins v. Children’s Hospital of D.C. (1923) (holding a minimum wage law “so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States”), with West Coast Hotel Co. v. Parrish (1937) (overruling Adkins and approving a minimum-wage law on the principle that “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process”). As the parentheticals here suggest, while the cases in the Lochner line routinely invoked a correct standard of constitutional arbitrariness review, they harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused.

Even before the deviant economic due process cases had been repudiated, however, the more durable precursors of modern substantive due process were reaffirming this Court’s obligation to conduct arbitrariness review, beginning with Meyer v. Nebraska (1923). Without referring to any specific guarantee of the Bill of Rights, the Court invoked precedents from the Slaughter-House Cases through Adkins to declare that the 14th Amendment protected “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court then held that the same 14th Amendment liberty included a teacher’s right to teach and the rights of parents to direct their children’s education without unreasonable interference by the States, with the result that Nebraska’s prohibition on the teaching of foreign languages in the lower grades was “arbitrary and without reasonable relation to any end within the competency of the State.” See also Pierce v. Society of Sisters (1925) (finding that a statute that all but outlawed private schools lacked any “reasonable relation to some purpose within the competency of the State”); Palko v. Connecticut (1937) (“even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts.” “Is that [injury] to which the statute has subjected [the appellant] a hardship so acute and shocking that our polity will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?”)

After Meyer and Pierce, two further opinions took the major steps that lead to the modern law. The first was not even in a due process case but one about equal protection, Skinner v. Oklahoma (1942), where the Court emphasized the “fundamental” nature of individual choice about procreation and so foreshadowed not only the later prominence of procreation as a subject of liberty protection, but the corresponding standard of “strict scrutiny,” in this Court’s 14th Amendment law. Skinner, that is, added decisions regarding procreation to the list of liberties recognized in Meyer and Pierce and loosely suggested, as a gloss on their standard of arbitrariness, a judicial obligation to scrutinize any impingement on such an important interest with heightened care. In so doing, it suggested a point that Justice Harlan would develop, that the kind and degree of justification that a sensitive judge would demand of a State would depend on the importance of the interest being asserted by the individual. Poe.

The second major opinion leading to the modern doctrine was Justice Harlan’s Poe dissent just cited, the conclusion of which was adopted in Griswold v. Connecticut (1965), and the authority of which was acknowledged in Planned Parenthood of Southeastern Pa. v. Casey (1992). . . . The dissent is important for three things that point to our responsibilities today. The first is Justice Harlan’s respect for the tradition of substantive due process review itself, and his acknowledgement of the Judiciary’s obligation to carry it on. For two centuries American courts, and for much of that time this Court, have thought it necessary to provide some degree of review over the substantive content of legislation under constitutional standards of textual breadth. The obligation was understood before Dred Scott and has continued after the repudiation of Lochner‘s progeny, most notably on the subjects of segregation in public education, Bolling v. Sharpe (1954), interracial marriage, Loving v. Virginia (1967), marital privacy and contraception, Carey v. Population Services Int’l (1977); Griswold v. Connecticut, abortion, Planned Parenthood of Southeastern Pa. v. Casey (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Roe v. Wade (1973), personal control of medical treatment, Cruzan v. Director, Mo. Dept. of Health (1990) (O’Connor, J., concurring), and physical confinement, Foucha v. Louisiana (1992). This enduring tradition of American constitutional practice is, in Justice Harlan’s view, nothing more than what is required by the judicial authority and obligation to construe constitutional text and review legislation for conformity to that text. See Marbury v. Madison (1803). Like many judges who preceded him and many who followed, he found it impossible to construe the text of due process without recognizing substantive, and not merely procedural, limitations. “Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three.” Poe. The text of the Due Process Clause thus imposes nothing less than an obligation to give substantive content to the words “liberty” and “due process of law.”

Following the first point of the Poe dissent, on the necessity to engage in the sort of examination we conduct today, the dissent’s second and third [points] implicitly address those cases, already noted, that are now condemned with virtual unanimity as disastrous mistakes of substantive due process review. The second of the dissent’s lessons is a reminder that the business of such review is not the identification of extratextual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable.

^[1]. The doctors also rely on the Equal Protection Clause, but that source of law does essentially nothing in a case like this that the Due Process Clause cannot do on its own.

 

^[2]. The status of the Harlan dissent in Poe v. Ullman (1961) is shown by the Court’s adoption of its result in Griswold v. Connecticut (1965), and by the Court’s acknowledgment of its status and adoption of its reasoning in Planned Parenthood of Southeastern Pa. v. Casey (1992). . . .