The 5th and 14th Amendments arguably contain the most significant phrases in the Constitution: their respective formulations of the Due Process Clause. The 5th Amendment Due Process Clause states, “No person shall…be deprived of life, liberty, or property, without due process of law…” Moreover, the 14th Amendment Due Process Clause states, “…nor shall any State deprive any person of life, liberty, or property, without due process of law…” The Due Process Clause has been the foundation of many of the most consequential judicial decisions in American history, such as Roe v. Wade.
It is not surprising then that the Due Process Clause is no stranger to controversy. In particular, one construction of the Due Process Clause—known as Substantive Due Process—holds that the government cannot infringe on specific purported individual rights in any way, even if these rights are not explicitly enshrined in the Constitution. While many would contend that Substantive Due Process has been responsible for much social progress, the doctrine of Substantive Due Process ultimately undermines the separation of powers as originally set forth by the Founding Fathers, and leads to a system of judicial supremacy when carried to its logical conclusion.
Upending the Constitutional Order
The separation of powers among the three branches of government is commonly taught thus: the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. However, the doctrine of Substantive Due Process has challenged this order by delegating a legislative-like function to the Supreme Court. While this dynamic of Substantive Due Process had its roots in the 19th century, it truly began to develop at the turn of the 20th century.
For instance, in the notable case, Lochner v. New York (1905), the U.S. Supreme Court infamously struck down New York’s Bakeshop Act. This Act prohibited bakers from working greater than 10 hours a day and 60 hours a week in order to protect bakers’ health (“Lochner v. New York”). They did so on the basis that the Bakeshop Act violated the bakery employer and employee’s “freedom of contract” inherent in the 14th Amendment Due Process Clause’s protection of liberty.
However, as Justice Harlan noted in his dissent, this decision severely limited the authority of states to exercise their police powers (“Lochner v. New York”). Under their police powers, individual states had the authority to enact legislation to regulate the health, safety, morals, and general welfare of their citizens.This power had long been recognized both under British and American common law and under the 10th Amendment of the Constitution, which states, “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.”
By appealing to a natural law between individuals that is not explicitly outlined in the text of the Constitution, the majority opinion undermined the proper powers of Congress and the states to regulate such economic activity. Article I of the Constitution grants Congress the right to regulate interstate commerce, and the 10th Amendment leaves the states to regulate economic activity within their borders to promote the health of their citizens. However, the majority in Lochner effectively usurped the legislative power from Congress and the states. They did so by rewriting the Constitution to deny Congress and the states the right to regulate economic activity if it infringes upon a dubious “right to contract” that lacks explicit Constitutional protection. Thus, the Lochner decision had subverted the Framers’ design for the Constitutional separation of powers by expanding the doctrine of Substantive Due Process.
This subversive tendency of the Substantive Due Process Clause was not limited to mere economics either. As mentioned earlier, the controversial Roe v. Wade decision legalizing abortion in large part rested on the Court’s assertion that a woman’s right to abortion was an extension of the “right to privacy” and a liberty interest protected by the 14th Amendment. The majority opinion stated that, “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
No matter what one thinks about the original intentions of the 14th Amendment and whether it was meant to protect some form of Substantive Due Process, it is quite unlikely that the drafters of the Amendment would have had abortion rights as part of its “liberty interests.” The 14th Amendment emerged out of the aftermath of the Civil War and was consequently primarily focused on guaranteeing basic civil rights to formerly enslaved black Americans. Moreover, the 14th Amendment was enacted at the height of the Victorian Era in 1868, a time when the condemnation and criminalization of contraception and abortion were becoming ubiquitous in the United States. In fact, due to the collective work of doctors from the American Medical Association and legislators endorsing and passing Comstock laws, most abortions had been outlawed in the United States by 1900. Given this historical context, it is quite implausible that the 14th Amendment’s Due Process Clause was intended to protect abortion rights.
Like the Lochner decision before it, the Roe decision also used Substantive Due Process to take away from Congress and the states their rightful legislative powers. Since the Constitution is silent on the issue of abortion, the states had the right to regulate abortion through the 10th Amendment because of their recognized police powers to regulate the health, safety, morals, and general welfare of their citizens. Moreover, The Constitution specifies in Article V that the Amendment process is within the purview of the legislative powers of Congress and the states. So, it was incumbent upon Congress and the states to alter the status of abortion in the Constitution if the People so decided. However, by utilizing Substantive Due Process to redefine the liberty interests of the 14th Amendment to include abortion rights, The Supreme Court had again circumvented the Constitutional process by usurping the legislative powers of Congress and the states. Therefore, the growth of Substantive Due Process in Roe also overturned the separation of powers under the Constitution.
As seen in both the Lochner and Roe cases, the doctrine of Substantive Due Process is able to subvert the Constitutional order in both economic and social legislation. With such immense potential control over both economic and social rights, the doctrine of Substantive Due Process essentially allows the judiciary to legislate and effectively become the supreme branch. This subversion of the Constitutional order also leads to other consequences that are less than ideal for republican forms of government.
The Consequences of Judicial Supremacy
If the purported Substantive Due Process Clause in the 14th Amendment—originally intended to ensure basic civil rights to former slaves—is broad enough to cover abortion rights, it is difficult to imagine what it could not cover. It would seem to be more dependent on the judge’s personal preferences than any regard to the original context or precedent, allowing for anything to fall into the broad doctrine.
For instance, the Supreme Court relied heavily on Substantive Due Process in the 14th Amendment to buttress their expansion of so-called “privacy rights” from the right to contraception in Griswold v. Connecticut to the right to abortion in Roe. However, this expansion of privacy rights and Substantive Due Process was halted by Bowers v. Hardwick in 1986 when the Supreme Court ruled that the 14th Amendment Due Process Clause did not bestow “a fundamental right upon homosexuals to engage in sodomy.” Justice White also gave a “slippery slope” warning that ruling in the other direction would leave no basis for prosecuting “…adultery, incest, and other sexual crimes even though they are committed in the home.”
Given the direction of jurisprudence after Bowers, it seems that Justice White’s “slippery slope” was justified. Reflecting changing views in society, the Court overturned Bowers in Lawrence v. Texas (2003) and invalidated laws against gay marriage in Obergefell v. Hodges (2015) based on the Substantive Due Process of the 14th Amendment. In doing so, the Court rejected the earlier precedent of Bowers, re-reversing the Bowers Court reversal of Roe and Griswold. This recent inconsistency of the Court on its interpretation of Substantive Due Process and privacy rights shows how what the Constitution effectively says depends not on the meaning of the text or past decisions but rather on the number and mood of the conservative or liberal justices who sit on the Supreme Court.
Consequently, depending on what President gets to appoint the justices, a strong doctrine of Substantive Due Process conceivably allows for a conservative Court to reverse the Obergefell gay marriage ruling or for a liberal Court to expand it to polygamous marriage. In a republic like the United States, such drastic changes ought to be the decision of elected officials in the legislative branch. It would be absurd for a republic to allow such important changes to be made by nine unelected justices, but that is exactly what Substantive Due Process and its consequent system of judicial supremacy allow for.
None of this is to necessarily discount any good social consequences that have arisen from the doctrine of Substantive Due Process in the past. Nonetheless, going into the future, questions of adding and subtracting significant civil rights to the Constitution are properly in the jurisdiction of Congress and state legislatures. Substantive Due Process’s facilitation of the Supreme Court making such additions or subtractions subverts the Constitutional order and could lead to judicial supremacy and its potential absurd consequences. It is time for the People and their elected representatives to regain the power that has always rightfully been theirs. The Supreme Court should discard the doctrine of Substantive Due Process, and Congress and the states should work to amend the Due Process Clauses of the 5th and 14th Amendments to prevent further abuses of them in the future.