“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” The Fourteenth Amendment, Section II
How many Americans think of the federal Constitution as “protecting our rights” or “enumerating our rights”? Probably most, if not all Americans think this. And yet, when the founders created the Constitution, they explicitly decided that the federal Constitution should not enumerate rights to the people but rather enumerate powers to the government.
The enumeration of rights was far too risky and would likely end up in a mess. If the government started enumerating our rights, it would open pandora’s box. At what point do rights stop? Who determines what they are? Who grants them? What are “rights” anyway?
No, the founders knew the riskiness of this and so they decided to simply limit government power, thereby protecting liberty–while leaving the messiness of “rights” to the states and their respective governments. It’s better for the states to grapple with these large normative questions than the federal government because the normative state answers affect only those within their state, while large normative federal answers will end up affecting everyone.
And so, the U.S. Constitution enumerates powers to the government, limiting its sphere of power. The framers added The Bill of Rights as an extra precaution, listing out the ten most important political rights that should never be touched by the federal government–even though, if the federal government followed the Constitution in the first place, these ten rights would never be touched by the federal government.
Thus enters substantive due process. I’ve never really studied substantive due process before, but reading about it definitely answers many questions and connects many dots for me. I hope it does the same for you.
Due Process
Due process of law is the Constitutional requirement that if government is ever going to deprive an American citizen of life, liberty or property it must do so according to the law. So, government can’t just pick an American citizen up and throw him in jail indefinitely for no reason. Nor can government take someone’s house, car, pencil, or any property, without doing so according to the law.
The phrase, “due process” originates from the Fifth Amendment which says that a U.S. citizen cannot be “deprived of life, liberty or property without due process of law” by the federal government. The Fourteenth Amendment reiterates the same eleven words but applied to the states. This idea is commonly referred to as procedural due process because it deals more with the procedures required by law that the government must meet in order to legally deprive a citizen of life, liberty or property. The Court has determined these procedures include at least, 1) notice; 2) an opportunity to be heard 3) an impartial tribunal. (Jury trial)
“The Due Process Clause guarantees ‘due process of law’ before the government may deprive someone of ‘life, liberty, or property.’ In other words, the Clause does not prohibit the government from depriving someone of ‘substantive’ rights such as life, liberty, or property; it simply requires that the government follow the law.” Nathan S. Chapman, Associate Professor of Law at the University of Georgia School of Law
Substantive Due Process
Substantive due process is the idea the Constitution not only guarantees that all citizens be treated by the same procedure under the law–by the states and federal government–but that there is also some measure of substance to what a citizen is guaranteed under the law.
If this sounds confusing, that’s because it is. There’s no such thing as “substantive due process” anywhere in the Constitution, which means that all discussions, debates and descriptions of substantive due process are based on nothing other than the arbitrary whim and will of whatever Justice is interpreting it. It’s a theory that the Court slowly developed after the Fourteenth Amendment to say that the federal government should defend rights that are not mentioned in the Constitution, primarily against state governments.
“Some defend substantive due process on the ground that it protects fundamental rights. But Americans disagree about what should count as a fundamental right, and many think the fairest way to resolve that disagreement is through political debate.” Nathan S. Chapman
The thing is, the Bill of Rights is not a list of guarantees. The Constitution, nor the Bill of Rights, do not guarantee citizens anything aside from the guarantee that government must follow the law and therefore the citizen’s liberty will not be at risk.
Entering in the realm of “guarantees” is where things get very messy.
That’s not to say that the argument for substantive due process is absurd. It’s not absurd by any stretch of the imagination as it comes from the assumption that there are some unenumerated rights that citizens have which are not mentioned in the text of the Constitution. The Ninth Amendment all but says that very statement. Of course there are plenty of “rights” unenumerated, which is why many founders were reticent to include the Bill of Rights. See, the Constitution protected liberty while the Bill of Rights gave extra protection for a few “rights”. The issue is its arbitrary nature.
Substantive due process really burst onto the scene in 1965, when the Court struck down state laws that banned the use of contraception by married couples, citing a “right to privacy” as the Constitutional justification for such a ruling.
“The Court found that… the ‘right to privacy’ may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home.
In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).” Chapman and Yoshino
Arbitrary
What do you notice about the above “rights” that the Court has established as Constitutional, despite the fact that none of these “rights” exist in the text of the Constitution?
Why is physician-assisted suicide not one of the rights? Ask any lawyer, judge or Justice and you’ll get a different answer and that is precisely the fundamental flaw in substantive due process. It’s wholly and admittedly arbitrary. There is no methodology by which to make any substance due process ruling. There is no Constitutional standard by which to hold any of these rulings accountable. They are entirely left to the arbitrary whim of whatever Justices hold power when a case dealing in this realm hits their desk. Who’s to say that in a few years physician-assisted suicided won’t be considered a fundamental Constitutional right? Why not?!
“Obergefell represented a clear victory for those who believe, as many progressives do, in a more expansive vision of substantive due process jurisprudence. At the same time, it did not announce unlimited discretion for the judiciary in this area. Instead, it endorsed the approach taken in a canonical dissent by Justice Harlan in the 1961 case of Poe v. Ullman…
…The Poe dissent rejected any formulaic approach to substantive due process in favor of a more open-ended common law approach whereby courts addresses questions about fundamental rights case-by-case, striving in each decision to balance the Constitution’s respect for individual liberty and the demands of organized society. It remains to be seen what future rights such an approach might yield.” Yoshino
Exactly. Government loves a heavy serving of arbitrary power, with no real limitations, definitions or standards that they must abide by–nothing to dictate or control their power. That’s the thing about arbitrary power. It’s arbitrary, so what may be considered terrible one day by one individual or generation is considered fundamental to the next.
Conclusion
It’s hard to tie this article up because I’ve only begun to scratch the surface of this topic and this amendment.
Which should tell you everything you need to know about arbitrary power.
The Liberty Belle
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Excellent, and frightening at the same time. It would seem to me that the Justices ,over time , have given themselves far to much power and have actually negated the Constitution more so than any other branch of government.
No wonder it seems that we live in more of a police state than ever before.