Whose Substantive Due Process?

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Ilan Wurman

My sincerest thanks to James Fleming and Jack Balkin for inviting me—an (admittedly quirky) originalist—to write a contribution to this symposium celebrating and critiquing Professor Fleming’s newest book defending the last century of substantive due process doctrine. As the only originalist contributor, I suppose I should explain whether I am persuaded by Fleming’s “caution” to conservatives who might roll back this line of cases. I am not. That is not a reflection on Fleming’s opus, which is sophisticated and important. And that is not to say the book’s arguments will never be relevant to a properly originalist inquiry. But it is to say that the book is unlikely to persuade anyone who is not already inclined to agree with its central premises, which are contested and contestable.

Given that a mostly critical review warrants a substantial and careful discussion of the author’s work, I will not waste time on the obviously admirable achievements of the book: its compelling moral account that, Fleming persuasively demonstrates, both fits and justifies the modern cases; and its persuasive debunking of the “myth of two rigidly maintained tiers” of scrutiny (45) and its account of the “rational continuum of ordered liberty” (id.) the Court has used instead. Rather, I shall focus on whether the Constitution has a “morality of its own” that compels, or at least permits, the holdings of the modern cases; whether, even supposing the Constitution’s commitments to liberty and equality permit Fleming’s preferred moral approach, we should choose that approach over a libertarian or conservative approach to rights; and, finally, whether some of Fleming’s moral arguments might nevertheless be useful in a properly originalist inquiry under the Fourteenth Amendment.

The Constitution’s Own Morality

At times, Professor Fleming seems to eschew originalism, at least a version of it that prizes the framers’ own expectations; at others, he seems, like Jack Balkin, to embrace it, at least its more capacious versions. Fleming argues that the Constitution “embodies a morality of its own and [the] explication and applying [of] that morality is the function of constitutional interpretation” (pp. 10; 161). He “conceive[s] substantive due process as the practice of interpreting the word ‘liberty’ in the Due Process Clauses” (p. 21). And he argues that the Constitution “embodies a charter of abstract moral principles, including commitments to liberty and equality,” rather than enacting a “code of detailed rules and concrete historical practices” (p. 162.) Finally, Fleming writes that “the principles that comprise a moral reading are implicit and grow out of the practice of constitutional interpretation” (p. 163).

These statements accept as a premise that the Constitution comprises “glittering” and “majestic generalities” involving liberty and equality that invariably require some version of substantive due process. But Fleming does not grapple with the enormous volume of scholarship examining the original meaning of the Fourteenth Amendment. That scholarship suggests that, rather than embodying abstract moral principles, the rights-bearing provisions of the Fourteenth Amendment on almost any plausible account are actually quite specific instructions or “detailed rules.”

For example, the word “liberty” needs interpretation only if one has already accepted a substantive reading of the clause. But the originalist scholarship is in near unanimous agreement that, as Nathan Chapman and Michael McConnell have shown, due process of law was indeed procedural: so long as rules of conduct are established by the competent authorities (legislatures) and do not otherwise violate a specific constitutional provision, and any violations of those rules are adjudicated in courts at least according to the processes established by law, there is no violation of the clause. This is a quite specific rule and it applies to all liberties, thus requiring no explication of the meaning of that term. And as I have written (reviewer’s prerogative!) in my 2020 University of Chicago law review article, The Origins of Substantive Due Process, there was no judicially enforceable, general police-power limit on state legislatures in the antebellum period. In the 1870s, “substantive” due process was invented by conflating antebellum police power cases involving municipal corporations, negative commerce clause jurisprudence, and Contracts Clause cases, none of which even remotely stood for the proposition that there were judicially enforceable unwritten limits on state legislative power. Nor is equal protection an abstract principle: as Christopher Green has shown, the evidence overwhelmingly suggests that protection of the laws was a narrower legal concept requiring judicial remedies and protection from private violence.

It is not entirely clear that Professor Fleming disagrees with the above assessment of the original meaning of due process. His view that substantive due process is “not a nonsensical ‘oxymoron’” stems from his conviction that the Due Process Clause is simply doing the work the Privileges or Immunities Clause would otherwise have done (pp. 19-20). But if the clause is a guarantee only of federally enumerated rights, as Kurt Lash has argued, then Fleming’s argument does not work. If it is instead an equality guarantee—as John Harrison has argued, and as I have argued in my recent book—then the argument also does not work. And if the clause does do fundamental rights work, Fleming’s argument would encounter two further problems: how to define the “privileges or immunities of citizens of the United States” and what it means to “abridge” them. As Jud Campbell has explained, antebellum Americans recognized “a common set of rights, applicable against the state and federal governments alike,” but they thought those rights were “regulable” by a state’s police power; therefore, this recognition of a common set of rights “did not necessarily mean that those rights had the same legal boundaries.” This implied great deference to legislative regulations of all rights, so long as the state was not being discriminatory.

I do not know if it was any part of Professor Fleming’s project to persuade originalists. As already noted, his primary objective is to fit and justify the modern (pre-Dobbs) cases; and this he does with rigor and sophistication. But one wonders what is the point of a book seeking to defend a liberal or progressive moral reading of the Constitution through the doctrine of substantive due process in light of the Supreme Court’s mix of six conservative and originalist judges. It appears to be the same goal that much originalist writing has had for the last several decades: not to persuade the current crop of judges, but the future generation of law students and lawyers who might someday replace them. Fleming concludes his book with an admonition to liberals and progressives to “learn from conservative examples of fundamentally moving the constitutional culture in their direction through tireless advocacy over a generation or longer” (p. 225). Fleming’s book therefore supplies a normative argument for what our constitutional system should look like, but it is not clear to me that it demonstrates that the Constitution’s own morality supports that system.

Which Moral Reading?

Let us assume for sake of argument that the Constitution’s commitments to liberty and equality require us to come up with some criteria for protecting certain basic liberties against any state infringement. It is our task, Fleming writes, to “mak[e] moral judgments about the best understanding of our constitutional commitments” (p. 162). Are the moral judgments that Fleming advocates—and that best fit and justify the cases from Meyer to Roe and Casey and on to Lawrence and Obergefell—the “best” understanding of our constitutional commitments? To explore this question, I’ll first consider the criteria Professor Fleming advances for inclusion in the substantive due process canon, and then ask whether it can justify excluding economic liberties. I’ll then assess Professor Fleming’s claim (p. 123) that his progressive moral project is more defensible than a conservative, traditionalist one. 

What makes the modern cases cohere, Fleming argues, is that they secure liberties essential for “deliberative democracy,” which enable people to deliberate about “the justice of basic institutions and social policies,” and for “deliberative autonomy,” which enable people “to apply their capacity for a conception of the good to” deliberate about and decide “how to live their own lives” (p. 37). These rights are the “significant preconditions for personal self-government” (p. 42). They “secur[e] the preconditions for people to make certain basic decisions fundamentally affecting their destiny, identity, or way of life, whatever their own moral or religious views, without compulsion from the state” (146).

There are also “procedural” criteria for inclusion in the canon. Rights can only (or at least usually, for Fleming never quite says whether Roe would meet these criteria) be recognized through the process of common law constitutionalism (p. 117). In justifying Obergefell, Fleming writes that the Court was merely “following and consolidating social change that has been occurring through democratic and judicial processes” (p. 89). Public opinion polls indicated “that a majority of the people nationwide supported marriage for same-sex couples” (id.). A court should give due regard “for the processes of constitutional change, including social movement, desuetude, and democratic repeal of laws prohibiting” a practice, all of which evidence “an evolving contemporary consensus in favor of a” particular right (p. 93). The “preconditions for constitutional change” include “social movements, desuetude, under-enforcement, and democratic repeal” of rights restrictions (p. 81).

Under this account, it would seem extraordinarily difficult to distinguish economic liberties, which libertarians argue are the most fundamental when it comes to personal self-government and how people choose to “live their own lives.” Indeed, economic freedom is, arguably, a precondition for political freedom—a point famously made by Milton Friedman. Thus economic substantive due process would at least arguably be a precondition for both the deliberative democracy and deliberative autonomy that Fleming favors.

Fleming does not dispute this. He accepts that economic liberties and property rights “like personal liberties, are fundamental liberties secured by the Constitution” (p. 141); they are so fundamental, in fact, and so “sacred in the constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them” (id.). The distinction that explains—that is, that justifies and fits—the modern cases is that “unlike economic liberties, [other] personal liberties like reproductive freedom and freedom to marry are vulnerable in the political process” (id.).

Herein lies one contestable premise and one contradiction. Fleming asks whether anyone can “say with a straight face that there is no protection for economic liberties in the US” (p. 145), but the real question is whether anyone can say with a straight face that the rights of less powerful economic interests are not vulnerable in the political process. Whether it is boxing out competition and protecting established firms through phony health (such as in Carolene Products) or safety (such as in Lee Optical) arguments, or pushing for regulations with which it will be harder for smaller firms or new entrants to comply, established economic actors routinely use vast financial resources to benefit themselves in the political process. Progressives routinely complain (or used to complain) about the influence of money in politics and of powerful economic, business, and “special” interests, so it is quite perplexing that in this context they seem to believe such groups have in fact no influence on the political process as it affects the interests of economic minorities.

Fleming’s discussion of Kelo then reveals the contradiction. The controversy over that infamous takings case “confirms” Fleming’s argument because the decision “prompted the ‘property rights movement,’ including forty-five state legislatures passing laws forbidding the very kind of ‘taking’ of property for economic development,” and therefore “economic liberties fend quite well for themselves through the political process” and there is “no need for aggressive judicial protection of them” (p. 144). This is an odd argument, however, because it would otherwise seem to support inclusion in the substantive due process canon if Professor Fleming’s earlier criteria are to be taken seriously. Fleming describes the “property rights movement,” namely, a social movement. As in Obergefell, the Supreme Court—at least if it reconsidered Kelo today, as Lawrence and Obergefell reconsidered Hardwick and Nelson—would be “consolidating social change that has been occurring through democratic and judicial processes” (p. 89). We have social movements and widespread democratic repeal. Why not have the Court consolidate?

There is another alternative to consider, too: the conservative moral reading by which both “economic rights” and “personal rights” can be regulated by the state because the state has a role in character formation. This is the view whose death Justice Scalia lamented in Lawrence when he decreed the “end of all morals legislation.” Fleming challenges Scalia by arguing that Lawrence did not end morals legislation at all, but rather replaced one kind of morality with another, more “defensible,” “worthy” and “legitimate” kind of morality: one that enables people “to make certain decisions fundamentally affecting their destiny, identify, or way of life free of compulsion by the state,” and that secures “equal dignity and respect with the status and benefits of equal citizenship for everyone” (pp. 121-23). These “nontraditionalist projects . . . have made it imperative to limit the traditionalist moral projects” (p. 123). “So it all comes down to a battle between competing moralities,” Fleming candidly writes, “not one between those who are for morality and those who would end it” (id.). According to Fleming’s morality, the law only has a place where there is harm to others, a lack of meaningful consent, a need to protect institutions, or a lack of equal status (p. 103). On the traditionalist, rejected view, the law can prohibit fornication (premarital sex), masturbation (if the legislature felt like being that stupid), drug use (let us assume no third party harm), or acting on same-sex attraction because the aim of law is to shape character and create the conditions for human flourishing.

On the policy merits, I quite frankly prefer some combination of the progressive and libertarian vision. But which has more of a claim to constitutional status? Fleming is frank that he does not address this central issue. When tackling economic substantive due process he states: “[W]hether I can persuade . . . libertarian scholars should not be the criterion for a successful argument, any more than whether I could persuade Justice Scalia that Roe and Obergefell were rightly decided would be an appropriate criterion for success” (pp. 143-44). Rather, “[i]t should be enough to make a coherent, sustained argument showing the practice of substantive due process in its best light and fairly grappling with objections to it” (p. 144). This theory of fit and justification is well and good as an account of what the Court has done, but Fleming only incidentally seeks to persuade his readers that that theory is actually superior to alternative possibilities.

If the question is which has more claim to constitutional status, it turns out that both the conservative and libertarian theories probably have better claims. We know that the framers of the Fourteenth Amendment believed that the antecedent natural rights secured by the first eight amendments—speech, press, religion, guns—were fundamental. And we know that they believed that contract and property rights—the core rights the Civil Rights Act of 1866 and the Privileges or Immunities Clause sought to secure—were fundamental. At the same time, the states could broadly regulate these rights, so long as their regulations weren’t discriminatory (and thus actually abridgments). In my view, this likely supports neither Lochner nor Griswold (at least as that case has been traditionally understood), insofar as the states have wide berth to regulate any fundamental right in a nondiscriminatory manner. Thus the conservative moral vision has perhaps the best claim of all to constitutional status (even if a lower claim to normative appeal). But if we’re choosing between the economic and progressive versions, Lochner at least has a far better claim than Griswold given that it dealt with the kinds of rights the framers explicitly said were fundamental.

To be sure, Professor Fleming would say that we are not bound by that era’s conception of liberty and equality, and perhaps that’s true. But if his argument is that our constitutional commitments need not include at least those rights the framers themselves deemed fundamental, and that those commitments can instead be derived entirely from what we today think is the morally superior approach, the point would still be that Fleming’s argument only works if enough people agree with him that his moral vision is the best one and that judges should impose it. If one does not accept the premise, which is not defended in a work that is only about fit and justification, then one cannot buy the argument.

Can Fleming’s Arguments Work Within an Originalist Framework?

It turns out that under the best originalist accounts, some amount of moral reasoning may nevertheless be required, and in this respect Fleming’s moral justifications for much of the existing doctrine will be useful for an originalist Court. If the argument of my book is correct, then the privileges or immunities of citizens of the United States is a reference to fundamental rights, and possibly to all civil rights (as opposed to political rights like voting and holding office). A state has wide latitude to regulate all such civil rights, so long as it does not “abridge” them by acting in a discriminatory manner. The difference between a regulation and an abridgement is, simply put, whether the purported regulation is reasonably related to the purpose of the right.

That is why the Black Codes were thought to be unconstitutional: race is not relevant to contract or property (or any other) rights. It simply has nothing to do with why the right to contract or to own property exists. That’s why a law prohibiting a gay person from owning property would be equally and as obviously unconstitutional: being gay has no relevance whatsoever to the reasons we have contract and property rights. It does not matter whether being gay is a protected class or not. It’s simply irrelevant to the right itself.

What about defining marriage to be between a man and a woman? I would make the case that that is at least plausibly unconstitutional for the following reasons (which I have articulated before). The three central purposes of marriage are (1) procreation and child-rearing; (2) creating a welfare institution for the economic and health benefits of the family; and (3) creating the conditions of love, belonging, and loyalty. Gay Americans can obviously participate in the latter two purposes, and even in the first (and at least arguably with equal social results for children). Sprinkle in some no-fault divorce that makes the first component even less important to straight couples, and it begins to look like an arbitrary and discriminatory “abridgment” to deny the right to gay couples. This is by no means an easy question—it is in fact quite difficult—because sexuality obviously has some relevance to these purposes.

It strikes me that Fleming’s description of the arguments in favor of same-sex marriage can play just as well into this framework. He explains, quite rightly, that “protecting the right of same-sex couples to intimate association and to marry” was justified in Obergefell “on the ground that doing so promotes moral goods” such as intimacy, commitment, loyalty, and security (pp. 79-80; 189). If marriage is about these objectives, and gay couples can participate in them, then a restriction on gay couples is not reasonably related to the purpose of the right. Liberal and progressive moral arguments—the moral arguments of the last half-century of substantive due process doctrine—can still be persuasive in any analysis of what might constitute an “abridgment.” There may therefore be important overlap between the last century of substantive due process doctrine and the future of originalism, and Fleming is too quick to dismiss (p. 199) the possibility that equality arguments might have more appeal to conservatives—or, at least, to originalists. Fleming’s work allows us to begin exploring these connections, and future works should explore them in more detail.

Ilan Wurman is associate professor of law at the Sandra Day O’Connor College of Law at Arizona State University and is the author of The Second Founding: An Introduction to the Fourteenth Amendment and A Debt Against the Living: An Introduction to Originalism.