Substantive due process
Posted by Joshua Claybourn on 17 March 2005 | 8 responses
Justice Scalia’s recent speech delivered at the Woodrow Wilson International Center for Scholars on March 14, 2005, and broadcast by C-Span, has received a lot of attention from bloggers lately. While I think there are some unfortunate inconsistencies in the speech, this bit is both provacative and consistent with Scalia’s previous rulings:
What substantive due process is, is quite simple, the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty, or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said: there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way: the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last twenty years, we have found to be covered by Due Process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for two hundred years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for two hundred years.
So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text, and even from the traditions of the American people.
8 Responses to “Substantive due process”
In this case, I think it is consistent with his previous rulings, but consistently wrong in that regard. He seems to do the one thing that the founding fathers were very clear they did not want done – presume that the bill of rights was an exhaustive list of all rights and that anything not specifically enumerated could be eliminated by the majority if they chose to. When James Madison presented his proposed amendments to the Congress, he said:
This makes quite clear that the one position that the founders considered absolutely false was the position that any rights not specifically enumerated could be done away with if the majority saw fit. But that appears to be Scalia’s position, which seems odd for someone who calls himself an originalist. In his famous 1996 speech in Italy, in response to the a questioner who said that there were some areas that were “beyond majority” and cannot be touched, Scalia said:
This certainly implies, to me, that Scalia believes that only those rights specifically enumerated actually exist, and all claimed rights outside of that may be done away with as the government sees fit. But that would include a huge number of rights that we all take for granted, Scalia presumably included, that are not specifically mentioned – the right to travel freely, the right to free association, the right to marry, etc.
I think Randy Barnett is on to something with his “liberal originalism” theory, wherein you apply the principles of the declaration to the question of unenumerated rights (the principles themselves, not the compromises of those principles later).
I watched the CNN presentation. I didn’t catch any inconsistencies. I think this guy is one of the clear thinkers on the court. The situation you quote describes today what was warned against by the Founders and Lincoln, by the bye.
You don’t have to make some lame “original intent” argument regarding this. The Ninth Amendment states explicitly:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I’d like to second Ed’s comment and add a few observations of my own.
As regards the ninth amendment and original intent, it has always seemed to me that the founders deliberately allowed for new rights (or at least new understandings of rights) in the future.
It’s either this, or the ninth amendment has no meaning: What other use could it have, if not to thwart a government attack on some facet of life that had not previously been imagined as a “right?”
I find this tendency in both the American and the French revolutions, actually: In each one, there is a pronounced strain of thought claiming that most contemporaries don’t fully understand yet what it means to life in a free society. It’s stronger in France than in America, but it’s definitely a part of the American founder’s thought. The Ninth seems to aim precisely at the expansion of rights as a free people matures. (Yes, there is a strong pessimism about whether this will happen properly–and it’s the tension between these two, I’d argue, that has animated discussion of fundamental rights in America ever since.)
The founders were quite conscious by the time of the Bill of Rights that they were at the beginning of something very new. They were no longer just trying to win back the traditional rights of Englishmen–which even by themselves were of fairly recent origin. Nor were they trying precisely to duplicate Greek or Roman ideas of liberty. They were experimenting with a new idea, which held that the people, as sovereigns, ought to be able to decide for themselves what their rights were, guided of course by tradition, but never shackled to it. This is exactly why I find liberal originalism so convincing–and Scalia’s take on originalism to be mistaken.
Yech. Typos: “live in a free society” and founders’. Someone should stop me from posting if my blood caffeine level isn’t high enough yet.
There is a faulty assumption that the Constitution defines all our rights. It enumerates only a few. “But doesn’t the 9th Amendment cover the unenumerated ones?” And how precisely does one determine objectively that a purported unenumerated right is genuine?
The only way the 9th Amendment can be interpreted with any objectivity surpassing that of the Psychic Friends Network is this: it defends the legitimacy of rights not enumerated in the Constitution but enumerated elsewhere – i.e. in statute (state or federal) or a state constitution.
Thoughts I recall from J. Scalia’s speeches, circa 1991:
Justice Scalia preferred to define himself as a “textualist”. He strongly believed in the strength and beauty of the constitution, but also that it isn’t perfect. However, becasue it includes an amendment process (Article V), he believes it is not the role of a Judge or Judges to judicially modify the text. If it needs enhancement, it is the duty of the people to amend it. Further the IXth Amendment must be read in connection with the Xth, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is to say, that the unenumerated rights referenced in the IXth amendment are, by definition, not delegated to the Federal Government, therefore are reserved to the States. Contrary to Mr. Brayton’s comments above, Scalia suggested that there are unenumerated rights he himself would personally fight to defend, but they may not be Federally protected. Therefore, it is up to the States to protect them (or not), or for the affected people and interest groups, to bind together to amend the Federal constitution in order to enumerate those rights sought. The key to winning an argument before Scalia, would seem to be to find existing text to define your “substantive right” – don’t call it “right to travel”, but call it “liberty”, as in the Preamble’s “secure the blessings of liberty .. .” He’s developed this framework, I believe, to have a decision making process or template to follow. It may limit his ability to protect the individual from the tyranny of the majority, but keeps the courts and importantly, the legislative branch, in more defined roles. Apologies to all if I have this wrong, but I thought it was worth passing on.
The Bill of Rights lists Rights inherently protected by the constitution. Rights beyond those listed in the constitution are rights that may be regulated and RESTRICTED by the State as per Amendment 10 of the Bill of Rights. What you are all arguing is flawed. The Bill of Rights is an exhaustive list of CONSTITUTIONALLY PROTECTED RIGHTS whilst other rights exist but are not gauranteed, given of course that one receives the procedural gaurantee of Amendment 14, due process of law in the stead of so called “rights.”