Substantive Due Process Is the Central Planning of Rights

Every free republic rests on a simple bargain. The people make the law through their elected representatives, the executive enforces it, and the judge applies it. John Adams called it a government of laws and not of men. James Madison warned that accumulating legislative, executive, and judicial power in the same hands is the very definition of tyranny. Substantive due process breaks that bargain. It takes a clause written to guarantee procedure and turns it into a blank grant of moral authority for nine unelected lawyers. The real damage is rarely discussed, because it has less to do with any particular decision than with the method itself. The doctrine converts the Constitution from a fixed and knowable law into a centrally planned economy of rights.

The Clause Was Written to Govern Process

The Fifth Amendment says that no person shall be deprived of life, liberty, or property without due process of law. The Fourteenth Amendment says the same to the states. Notice what the clause actually assumes. It assumes that government may deprive you of life, liberty, and property. It only insists that when the government acts, it follow established legal process. That is what due process of law has meant since Magna Carta. Fair notice, a fair hearing, and the regular administration of law. It is not a list of rights that government may never touch. It is a rule about how the state must behave before it moves against an individual.

Substantive due process is therefore a contradiction in terms. Process is how the state acts. Substance is what it may do. You can no more have substantive process than you can have a square circle. Yet the Supreme Court reads the word liberty in that clause as if it were an invitation to discover unenumerated rights and enforce them against the people's representatives. That is not interpretation. It is amendment by judges. The late Justice Antonin Scalia put the problem plainly. Due process, in its original meaning, is process that is due under law. It has nothing to do with the substance of the liberty or property being taken. Once judges use it to strike down laws they dislike, they are no longer interpreting the Constitution. They are legislating from the bench.

The History Reads Like a Cautionary Tale

The doctrine's origins are not noble. One of its earliest major exertions was Dred Scott, where the Supreme Court used the Fifth Amendment's Due Process Clause to strike down the Missouri Compromise and protect property in human beings. The same tool that would later be used to impose modern social liberties was first used to deny Black Americans their very humanity. That fact alone should give any honest observer pause.

Then came Lochner, where the Court read liberty of contract into the Due Process Clause and used it to strike down workplace regulations. Whatever you think of the policy, the method was the same. Judges substituted their economic philosophy for legislative judgment. The New Deal Court repudiated Lochner, but it never repudiated the underlying power. It simply changed which liberties the judges happened to like. Today the same clause gives us whatever five justices think is fundamental, from privacy to marriage to abortion. Each generation finds a new liberty that appears nowhere in the constitutional text, declares it fundamental, and imposes it on the entire country. The next generation can unmake it with a different set of five votes.

The point is not that every substantive due process outcome is equally bad. The point is that the doctrine has no consistent principle. It is a Rorschach test. The Constitution is supposed to be fixed law, not a mirror of elite moral fashion. If a right can be invented by judges, it can be erased by judges. That is not liberty under law. That is raw power wearing a robe.

Why It Works Like Central Planning

This is where the argument becomes less familiar, but it is the part most people miss. Friedrich Hayek taught that no central planner can gather the dispersed knowledge needed to run an economy, because the necessary information exists only in the minds of millions of individuals. Prices coordinate what no bureaucrat could ever know. The same is true for moral and social order. No nine judges, however intelligent, can know the traditions, trade-offs, and values of three hundred thirty million free people. When the Court declares a right fundamental, it is not discovering a fact. It is choosing one set of elite preferences over all others.

Substantive due process is therefore the legal equivalent of central planning. Instead of letting rights evolve through state legislatures, state constitutions, and the amendment process, the Court hands down decrees from above. The seen benefit is a newly announced right. The unseen cost, as Henry Hazlitt would say, is the destruction of self-government itself. State laws are overturned, public debate is short-circuited, and citizens are told their views do not matter.

Thomas Sowell's maxim applies here. There are no solutions, only trade-offs. The trade-off in substantive due process is between judicial protection of a few favored liberties and the republic's ability to govern itself through law. You cannot have both a living Constitution and a binding Constitution. At some point the law either means something fixed, or it means whatever the people in robes say it means.

The Constitution Already Has a Better Way

The Constitution is not hostile to new rights. It provides a lawful way to change the law: Article V. If the American people want to protect a liberty not enumerated in the text, they can amend the Constitution. That is how we got the Bill of Rights, the Thirteenth Amendment, and the Nineteenth Amendment. The process is slow and hard, but that is the point. A right that can be created by five votes can be erased by five votes. A right embedded in the text by the supermajoritarian process of the people is durable.

The Court has also had honest textual homes for certain substantive protections, most notably the Privileges or Immunities Clause of the Fourteenth Amendment, which was written after the Civil War to protect the rights of citizens. But the Court gutted that clause in the Slaughter-House Cases, then quietly stuffed its contents into the word liberty in the Due Process Clause. Rather than correct its old mistake, the Court preferred a phrase that gives it maximum discretion.

As Justice Scalia wrote in his Obergefell dissent, the Court's substantive due process method is a naked judicial claim to legislative, indeed super-legislative, power. That is not a conservative or liberal point. It is a constitutional point. When judges legislate from the bench, we cease to be a republic of laws and become a government of men.

What Courts Are Actually For

Some will object that courts must protect fundamental rights from majority overreach. That is true, but only within the actual Constitution. The Bill of Rights already protects enumerated rights: free speech, religious liberty, the right to keep and bear arms, the right against unreasonable searches, and the rights of criminal defendants. The structural Constitution protects liberty by making it hard for any faction to consolidate power. Federalism, separation of powers, and the amendment process are all liberty-protecting devices. Courts can and should strike down laws that violate those actual textual guarantees.

The problem with substantive due process is different. It is not judicial review. It is judge-invented law. It allows the Court to protect rights that appear nowhere in the Constitution, based on nothing more than the moral preferences of five justices. That is not protecting minorities from majorities. It is replacing the sovereignty of the people with the sovereignty of judges.

In a constitutional republic, fifty-one percent does not get to vote away the rights of the forty-nine percent. But those rights must be real rights, grounded in the text or added by the people through amendment. If the right is not there, the remedy is to persuade your fellow citizens and change the law. The shortcut of asking nine lawyers to declare it is not liberty. It is surrender.

The Cost to Ordinary Citizens

For the ordinary citizen, the cost is simple. Your vote matters less and your zip code matters more. If you live in a state whose people have chosen policies the judges dislike, those policies can simply be erased by a federal court invoking the ghost of substantive due process. You cannot persuade a majority of your neighbors. Fine. Get five justices.

The incentive is no longer to win arguments. It is to win cases. That is a lawyers' republic, not a citizens' republic. Every time the Supreme Court announces a new constitutional right, it tells the American people that their debates, their votes, and their state constitutions are provisional. They can be overruled by a panel of judges who have never been elected and never face the people.

The next time a judge announces a new constitutional right, ask not whether you like the right. Ask whether you are willing to hand a committee of nine lawyers the permanent power to decide what your rights are. Once that power is conceded, it will not be returned simply because the judges change. Due process means process. If we want new rights, the Constitution tells us how to get them: persuade, legislate, and amend. The shortcut is the road to serfdom.