Substantive Due Process - Criticisms of Substantive Due Process

Criticisms of Substantive Due Process

Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g., as in the Dred Scott case), or argue that judges are addressing substance instead of process.

Justice Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.

The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Stephen Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "e must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."

Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.

The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." The Thirteenth Amendment ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."