By Rachel Alexander
Arizona Daily Wildcat
October 8, 1997

The Invention of "Substantive" Due Process

Arizona Daily Wildcat Rachel Alexander

Certain provisions in the U.S. Constitution have received more validity from the courts than others, including ones which have a rather vague connection to the actual wording of the Constitution. One provision that has been used extensively to support "constitutional" decisions, which is taught to law school students as the defining constitutional issue of their second Constitutional Law class, is the due process clause of the Fourteenth Amendment. The relevant portion of this clause says "No State shall make or enforce any law which shall - deprive any person of life, liberty or property without due process of law." (The Fifth Amendment provides this same protection from the federal government.) Clearly, this is a procedural clause, meaning that without a fair trial or investigation under the law, no person shall be deprived of their life, liberty or property.

However, beginning with Dred Scott v. Sandford in 1857, the Supreme Court expanded this meaning to cover something they called "substantive" due process. This meant that any protection not listed in the Constitution, which they wished a person to have, should be covered by this clause. So, in Dred Scott, Justice Taney for the Supreme Court held that a slave taken into free territory could not become free, because the slave-owner's property rights would be jeopardized.

It is difficult to see how this second meaning of due process applies, since "process" has nothing to do with "substance." Unfortunately, this expansive meaning of due process caught on and opened the door for a whole Pandora's box of "constitutional" interpretations of all sorts. Furthermore, it ignored the obvious Ninth Amendment, which already provided that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Perhaps the reason this important amendment has been ignored is because our judges have forgotten that the Bill of Rights is not a complete list of the rights we have. It is only a list of some of the rights which the federal government absolutely cannot infringe upon. We still are endowed with rights as individuals.

As a result of this forgetfulness, the courts felt it necessary to use this new "substantive" due process clause to "incorporate" the Bill of Rights. This meant they were going to apply the first 10 Amendments to the States, since the Bill of Rights only applied to the federal government. Again, this application was unnecessary since we are already endowed with natural rights, and most state constitutions have many more rights listed than our federal Constitution does, so there are no lack of protections there. Furthermore, the courts have selectively applied this "incorporation," only applying the Amendments they prefer. One right which has been purposely excluded by the courts is the Second Amendment, although for most citizens, especially Arizonans, their state constitutions protect this right to bear arms, and much more coherently.

The Supreme Court used this expansive reading of the due process clause to strike down state laws they did not like, but which were not mentioned in the Constitution. Particularly troubling are areas in which the people, through Congress, have decided, yet the court steps in through this clause and strikes down their decisions. When you have a right which is trampled by the state or federal government, you can either appeal to your legislature or the courts. Instead of staying out of divisive situations in which the rights are not clear (e.g. one person claims they have a right, but this right may infringe on another's), the courts have decided to jump in and decide some of these highly contentious, moral issues for us.

One of the most unfortunate decisions based on this judicial activism was Roe v. Wade. Here, the Supreme Court held that a woman had a "right to privacy," so that abortion could then be legalized, using the "substantive" due process clause of the Fourteenth Amendment to "incorporate" the First, Fourth, Fifth and Ninth Amendments. Since these Amendments mention nothing of a "right to privacy," Justice Blackmun, writing for the majority, cited the "penumbras" of the Bill of Rights as justifying this "right." In other words, since we "feel" this right should be in there, we will pretend it is in there.

What is wrong with this approach is that it undermines the will of the people as represented by the 48 state legislatures which passed these laws against abortion. Secondly, since the courts began using their "substantive" due process interpretation to protect rights, they backed themselves into a corner by protecting only the rights delineated in the Constitution. Using this narrow interpretation of "rights," the courts have usurped the power of Congress, which should pass an Amendment making a "right to privacy including legalizing abortions" if the people wanted it.

The real solution would have been to end the legacy of Dred Scott and its "substantive" due process, and allow the legislatures to decide controversial issues where rights are not clear. If there is determined to be a non-constitutional right at issue, then the courts may step in, solely through the Ninth Amendment, and protect it. Associating the controversial act of "abortion" with a "right to privacy" had no basis in the Constitution, and hurt the credibility of protecting a real "right to privacy." Legalized abortion may be considered a "right" for a portion of the population, but for another significant portion it denies a right. The Fourteenth Amendment protects "life, liberty or property." How ironic that such an Amendment should be used to deny life.

Rachel Alexander is a second-year law student.

To join Bork, a conservative law discussion list, send e-mail to listproc@u.washington.edu, and in the body of the e-mail, type subscribe bork your e-mail address your name.