The Commerce Clause in Article I, Section 8 was the first language in the Constitution to be used to grow the power of the federal government. Increasingly aggressive use of the Commerce Clause led to the Supreme Court upholding federal control over farm production and prices in the notorious Wickard v. Filburn case in 1942 and the federal government’s outlawing of racial discrimination in public accommodations in the Heart of Atlanta Motel case in 1964.
But the Due Process clauses of the 5th and 14th Amendments to the Constitution have more recently been used to grow Washington’s reach. A new law review article traces the history of a Supreme Court doctrine called “substantive due process” from the 1870s forward. You could be forgiven for thinking that ‘due process of law’ has something to do with process or procedure, things like proper notice and opportunity to be heard. And it does, in matters of ‘procedural due process’, but due process has also come to mean protections for fundamental rights, such as free speech and the other rights enumerated in the first eight amendments to the Constitution.
Enumerated rights are unarguable. The mischief comes when substantive due process extends to unenumerated rights and is used to create new rights, such as the rights to abortion and same-sex marriage. You won’t find these in the Constitution. The Supreme Court divined them out of ‘penumbras and emanations’ of other clauses. In other words, the Supreme Court is using substantive due process to make up rights out of thin air.
Before you condemn substantive due process entirely, understand that it was once tethered to natural law, some argue, and used, for example, to knock down state laws limiting work hours as a violation of the natural right of contract in what’s known as the Lochner era. There are no substantive rights of contract or property expressly mentioned in the Constitution, but they were considered features of natural law and worthy of protection under due process, at least in the Lochner era. Substantive due process has also been used to protect homeschooling (Pierce v. Society of Sisters), interracial marriage (Loving v. Virginia), and the rights of the mentally ill not to be confined if they are capable of surviving safely in freedom (O'Connor v. Donaldson). Most people would agree these are fundamental rights, even if they are not expressly mentioned in the Constitution.
But, now there is no limiting principle like natural law to rein in substantive due process, with the consequence that due process has become the ultimate constitutional kitchen sink. It is being misused by nine unelected individuals – or five who constitute a majority or, in some cases, a single swing-vote like Anthony Kennedy – calling themselves a Supreme Court to dictate social policy from above and to force their subjective notions of desirable social engineering on the rest of us, regardless of what the people might want or have actually expressed through referendum. Shouldn’t wrenching social change be handled some other way in a Constitutional Republic where the people are supposed to be sovereign? I think so, but more on that at a later date.
The History of “Substantive” Due Process: It’s Complicated, by David E. Bernstein
Substantive due process