A Tenable Concept of "Substantive Due Process"
By Alec Rawls © 1999. (2100 words)

The Fifth and Fourteenth Amendments to the U. S. Constitution demand that: "No person shall ...be deprived of life, liberty, or property, without due process of law." The core meaning of this restriction is pretty obvious: government officials cannot act like autocrats and just lock up anyone who opposes them. People can only be prosecuted for breaking properly enacted laws, and they can only be prosecuted according to the established procedures of law, including constitutionally mandated protections, such as the requirement that the law be applied uniformly. Beyond this core meaning, there is a controversial Supreme Court history of trying to read into the due process clause, not just procedural restrictions on how the laws can be enforced, but substantive restrictions on what laws can be enforced.

There is a solid basis for supposing that there must be a substantive content to due process because if "due process" just refers to the various procedural requirements articulated elsewhere in the constitution then it is redundant. Even the broad requirement that the rules of common law be followed is elsewhere demanded by the Seventh Amendment. A basic principle of constitutional interpretation is that no provision should be read in such a way that it adds nothing to the Constitution. Yet the way the Court has given substance to "substantive due process" in the past falls into exactly this trap. It has tried to use "substantive due process" as a place to locate unenumerated rights, but unenumerated rights is the substance of the Ninth Amendment, making the interpretation of due process again redundant, and worse, putting unenumerated rights on a shakier foundation. At least the Ninth Amendment gives some guidance as to where to look for unenumerated rights. They are "rights retained by the people," which can be read conservatively to refer to protections that, at the time of the founding of the United States, had previously been considered to exist. Most obviously, this would refer to the "inalienable rights" of the Declaration of Independence: rights to "life, liberty and the pursuit of happiness."

Reading the rights of the Declaration into the Ninth Amendment would establish a general protection of liberty, something current constitutional interpretation fails to do. Ideally this general protection of liberty should strike down any infringement of liberty unless it is "necessary" to secure "compelling state interests." This is the hurdle that laws which infringe enumerated protections must clear at present. If the general protection of liberty must be set a little lower the necessity part of the test should certainly remain, though "compelling state interests" might be lowered to "rational state interests," so long as the rationality test were imposed demandingly enough, requiring that the law clearly pass a Millian public interest test.

When the Court chose to protect unenumerated rights through "substantive due process" it gave up the guidance of the Ninth Amendment for how to proceed. This has led to some of the Court's most damaging rulings. Early in this century "substantive due process" was used by a conservative court in Lochner to assert unenumerated economic liberties (striking down child labor laws). In the sixties and seventies, "liberal" Courts read their own unenumerated liberties into substantive due process. Most famously, Roe v. Wade protected abortion rights under an unenumerated right to privacy, claimed to stand on the concept of substantive due process. These rulings were not damaging in what they tried to protect, but in the unsound protection they provided. In Lochner the court had gone too far. Since it did not engage a general protection of liberty it failed to understand that liberty implies responsibility and hence cannot be asserted as a right for minors. When this teetering ruling fell it ruined all protection for economic liberty, which the Court has scorned ever since.

Roe v. Wade is equally dangerous. Here the Court tried to locate a woman's liberty interests in the substantive implications of the procedural restrictions on law enforcement that seem to protect privacy. That isn't a bad strategy for locating unenumerated rights under the Ninth Amendment, but then the Ninth Amendment would impose more rigor. It does not just identify a "right to privacy" but also recognizes its limits. Embracing the inalienable rights of the Declaration immediately implies J.S. Mill's principle of liberty, which introduces "direct" harm to others as a grounds for limiting liberty (see Reframing our System of Liberty, article 1: Eliminating the Conflict Between Liberty and Crime Control). Thus a right to privacy properly protects what consenting individuals do in private. It in no way says that within the sphere of privacy a person can do violent harm to another. Privacy is absolutely the wrong grounds for establishing abortion rights.

I believe that limited abortion rights can be secured under a general protection of liberty. If a woman does not want to carry a pregnancy to term then the liberty rights of mother and fetus come into conflict and some adjudication must be worked out. This is exactly what the Court did in Roe v Wade. If the woman is afforded no sphere of choice her liberty interests are over-ridden entirely. Also the unborn's claim to person-hood is weakest in the embryonic stage. Accordingly, the Court judged that the woman's liberty interests should hold sway for the first trimester of pregnancy. As the fetus develops its claim to liberty interests grow while the additional burden on the mother of carrying the baby to term shrinks, with the fetus's interests plausibly becoming dominant by the time of "viability" outside of the womb, allowing progressively stronger restrictions on later term abortions to stand if they are enacted. This adjudication of rights is quite sound but the derivation of rights that it stands on is not and so we again have a teetering ruling on a most important issue. Abortion rights need to be grounded in a general protection of liberty, not in privacy rights.

That we dare call ourselves "the land of the free" in the absence of any general protection of liberty, at a time when legislatures can and do criminalize virtually whatever they want on the flimsiest errant excuse, is a travesty. The framers of the Constitution were genuinely radical partisans of liberty. Our weak-kneed Court, using substantive due process to dodge the clear intent of the Ninth Amendment, is an example of how far we have fallen.

There is another way of interpreting substantive due process, however, one that does justice to the powerful intents of the founding fathers. Instead of trying to pick the substance of due process out of the air we should follow the language of the Fifth Amendment and look for the substance of due process in the concept of due process. If the wielders of government power are threatened by your legitimate activity and want to persecute you they can't just throw you in jail. They have to show that you did something wrong, and this does imply a most important substantive restriction on the laws. It means that you cannot be prosecuted for wrongs that you merely might commit, only for wrongs that have actually committed. That is, one way to interpret "substantive due process" is as a ban on prior restraint. Laws that constitute prior-restraint would be struck down unless they could be shown to be "necessary to a compelling state interest." (In particular, they should be necessary to resolve conflict with other constitutional provisions.)

To nail this restriction down it would be necessary also to establish general protections of liberty, otherwise pre-emptive laws could be defended just by shifting their proclaimed intent. For instance drug laws are justified on the grounds that drug use leads to crimes against people and property. If this is true, we should be arresting the users when they commit crimes against people and property, not exercising prior-restraint, trying to pre-empt those crimes by arresting for an activity which in some people does and in other people does not lead to crimes against persons and property. But unless general protections of liberty are in place, defenders of drug laws could evade a prohibition on prior restraint by claiming that the laws were for the user's own good, to keep them from wrecking their own lives. This evasion would not fly under a general protection of liberty because throwing people in jail "for their own good" violates Mill's principle of liberty and would therefore be struck down by the rights of the Declaration.

Pre-emptive drug laws are especially absurd when the war on drugs consumes so many legal resources that crimes against property--the excuse for having pre-emptive laws in the first place--are virtually ignored. On the other hand, if drug laws were necessary (rather than counterproductive) for protecting persons and property, then at some point the protection of persons and property would become an overriding state interest, enabling prior restraint, but this very high test is certainly not met in the actual case of drug laws.

In extreme cases it is so obvious that prior-restraint violates the concept of due process that laymen will assume it is not even controversial. Suppose scientists discover a gene for violent tendencies and Congress decides to use this knowledge to protect society by having all who possess this gene incarcerated before they can do any harm. Such a law would clearly violate the spirit of due process. Liberty would be deprived without the "process" of having done wrong and been caught for it. But in fact the only area where prior-restraint is currently a principle of constitutional law is in First Amendment law, regarding the freedom of speech. That is, prior restraint per se is not a suspect category of law at present but only comes into play when it arises in this one area of law that is on other grounds subjected to special scrutiny.

Indeed, our legal codes are full of pre-emptive laws. Gun control laws (laws that make it illegal for anyone to keep or bear arms, rather than making it illegal for criminals to keep or bear arms) are paradigmatic cases of prior restraint. They try to disarm everyone, not just the criminals, in a prophylactic attempt to keep those who have done no wrong from turning to wrong. This is particularly egregious given that the right to keep and bear arms is, beyond the liberties of the First Amendment, the only enumerated liberty in the Constitution.

It might seem like we need to have some mundane pre-emptive laws, like speed limits, that keep people from harming themselves and each other, but these laws are not actually pre-emptive. The tenable justification for speed limits is that driving above a certain speed is dangerous. A pre-emptive speed law would be one that forced everyone to put governors on their cars so that they could not possibly exceed the speed limit.

The same reasoning applies in more important cases, such as stalking or criminal threatening. Avoiding prior restrain does not require waiting for a murder to be committed. Threats themselves constitute violent coercion.

At first glance it looks like a prohibition on preemptive laws might conflict with the tax power, since taxes deprive a person of his property without his having been found guilty of any wrong. But tax laws can be looked at, not as taking away what belongs to a person, but as defining what belongs to a person: his after tax holdings. For this interpretation to be justified, the tax system would have to be just and allow people their just deserts, so it will be important to get the tax system right in this respect (see A Balanced Budget Amendment). The more specific constitutional power to tax would in any case trump a general prohibtion on prior-restraint, but it is helpful to be clear that there is in actuality no conflict here at all, so long as taxes do not become confiscatory and violate the Seventh Amendment's prohibition on uncompensated "takings."

In sum, a general protection of liberty located in the Ninth Amendment and a prohibition on prior-restraint located in the Fifth Amendment are both sound constitutional interpretation and are necessary complementary tools for embodying the ideals of liberty that our Constitution strives to embody. The place to locate unenumerated rights is in the Constitution's declaration of unenumerated rights and the place to find the substance of due process is in the concept of due process. People cannot be deprived of life liberty or property unless they been properly found to have committed a wrong. Prior restraint violates our system of liberty. Haven't we always known that? How come the Supreme Court doesn't know it?

(Alec Rawls is pursuing a Ph.D. in economics)


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Date Last Modified: 8/27/99
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