Substantive Due Process: The Legal Invention That Broke Constitutional Government

Let us begin with a proposition so straightforward that a high school civics student could grasp it. The Constitution means what it says, and it says what it means. That single principle is the bedrock of the rule of law. It is what separates a government of laws from a government of men. And it is the principle that substantive due process, the most unaccountable doctrine in American constitutional law, systematically destroys. This is not a technical legal debate for law professors and federal judges. It is a fight over whether we will be governed by the words the Founders wrote and the people ratified, or by the personal policy preferences of nine unelected lawyers in black robes.

What Substantive Due Process Actually Is

The phrase itself is a contradiction in terms. Due process of law appears twice in the Constitution. It is in the Fifth Amendment, which applies to the federal government, and in the Fourteenth Amendment, which applies to the states. For the first century of American history, everyone understood what it meant. It meant fair procedures. Notice. A hearing. An impartial judge. The right to confront your accusers. Due process was about process. It said nothing about what substantive policies a legislature could enact. Then, in the late nineteenth and early twentieth centuries, the Supreme Court began to twist the phrase. The justices claimed that the word liberty in the Due Process Clause did not just mean freedom from physical restraint. It included certain fundamental rights so essential that no state could infringe them, even if every procedural protection was provided and even if those rights appeared nowhere in the Constitutions text. Thus substantive due process was born. It is the idea that courts can discover unwritten rights, announce them as constitutional commands, and strike down any law that violates them. The judges do not need a constitutional amendment. They do not need a democratic vote. They simply need to consult their own moral intuitions and declare that this right is fundamental.

The Angle Nobody Talks About: Judicial Central Planning

The standard conservative critique of substantive due process is correct as far as it goes. It is judicial activism, a blank check for judges to impose their policy preferences. But the deeper problem, the angle you almost never hear, is that substantive due process is the exact same intellectual error as economic central planning. Think about it. Friedrich Hayek taught us that no central planner can gather the dispersed knowledge needed to rationally allocate resources. The price system works because it aggregates information that no single mind could possess. Thomas Sowell constrained vision warns that fallible human beings, with limited knowledge, should defer to the accumulated wisdom of tradition, democratic processes, and the spontaneous order of a free society. Now substitute judge for central planner and fundamental rights for economic resources. The substantive due process judge asserts that he and he alone can identify which rights are implicit in the concept of ordered liberty. He does not look to the text. He does not look to history. He does not look to the structure of the Constitution. He looks inward. He consults his own sense of what a decent society requires, and then he calls it the Constitution. This is the unconstrained vision in judicial robes. It is the belief that a well intentioned elite, using their own reason, can identify and enforce unwritten truths that the messy, democratic, imperfect process of self government cannot be trusted to protect. The parallel is exact. The economic central planner says I know better than the market what goods people need. The substantive due process judge says I know better than the democratic process what rights people need. Both substitute the judgment of a few for the wisdom of the many. Both produce unintended consequences. Both are fundamentally anti constitutional.

The Lochner to Roe Switch

Here is the dirty secret the Courts liberal majority never admits. Substantive due process has no principled limiting principle. None. Zero. Consider the history. In Lochner v. New York in 1905, the Court used substantive due process to strike down a maximum hours law for bakers. The right was freedom of contract. Conservative judges protecting economic liberty from progressive regulation. In Roe v. Wade in 1973, the Court used substantive due process to strike down abortion restrictions. The right was privacy. Liberal judges protecting social liberty from conservative regulation. In Obergefell v. Hodges in 2015, the Court used substantive due process to impose same sex marriage nationwide. The right was dignity. Liberal judges protecting sexual liberty from democratic majorities. Same doctrine. Different results. Different judges. Different policy preferences. The doctrine itself is a vessel, empty and shapeless, into which judges pour whatever they happen to believe. Conservatives celebrated Lochner and hate Roe. Liberals celebrate Roe and hate Lochner. Both should be consistent. If you accept substantive due process, you accept that judges have the power to make law. If you reject it, you reject it across the board. Justice Scalia, the greatest textualist of the modern era, made this point relentlessly. In his Lawrence v. Texas dissent, he wrote that the Courts substantive due process reasoning had no logical stopping point. If liberty includes the right to engage in private consensual homosexual conduct, why does it not include the right to engage in incest, polygamy, or prostitution? Why not? Because the justices say so. That is not law. That is will.

Why It Undermines Liberty

Here is the paradox that substantive due process defenders never acknowledge. Inventing rights actually undermines the liberty it purports to protect. How? Because when judges hand down a ruling on a fundamental right, they remove the issue from democratic deliberation. Oh, the marriage issue is settled by the Court. No need to debate it anymore. Oh, abortion is a constitutional right. The legislature cannot touch it. The Founders designed a republic, not a judicial oligarchy. They understood that self government, with all its messiness, its delays, its imperfect compromises, is itself a form of liberty. It is the liberty of a free people to govern themselves according to the rule of law. When you short circuit that process by having nine lawyers announce the true meaning of liberty, you do not protect freedom. You reduce it. You shrink the space for democratic deliberation. You tell the American people that your votes do not matter on this issue because we know better. The result is a citizenry that becomes passive, disengaged, and resentful. Why bother arguing with your neighbors about abortion or marriage when the Court will settle it for you? Why work through the legislative process when you can find a sympathetic judge? The message is clear. Real change comes from Washington, not from your local community. This is the death of republican self government.

What the Originalist Alternative Looks Like

The alternative is simple, and it is what originalists have been arguing for decades. Read the Constitution as it was written. If a right is not in the text, it is not a constitutional right. That does not mean the government can do whatever it wants. It means the people, through their state legislatures and Congress, get to decide what rights to recognize, what liberties to protect, and what limits to impose. If a state wants to legalize abortion, it may. That is federalism. If a state wants to restrict abortion, it may. That is also federalism. If the people want to protect same sex marriage through democratic means, they may. That is self government. If they do not, they may not. That is also self government. The Constitution is a charter of limited, enumerated powers. It does not grant judges a roving commission to govern. It grants them the power to interpret, faithfully and textually, the words that the people ratified. James Madison warned in Federalist Number 47 against the accumulation of all powers, legislative, executive, and judiciary, in the same hands. Yet substantive due process concentrates all three in the judiciary. The judges legislate rights. They execute them through injunctions. They adjudicate their scope. It is the very tyranny of blended power the Founders sought to prevent.

The Bottom Line for the American Citizen

Substantive due process is not a doctrine. It is a power grab, dressed up in the language of liberty and fundamental rights while actually undermining both. It replaces the rule of law with the rule of judges. It substitutes the wisdom of a few for the self government of the many. The next time you hear a pundit celebrate the Court for protecting a right the Constitution never mentions, ask yourself a few questions. By what authority does this judge get to decide for all of us? By what text? By what principle? If you cannot answer those questions from the Constitution itself, from its actual words, its actual history, its actual structure, then what you are defending is not liberty. It is judicial supremacy. And that is the opposite of a free republic. The Constitution is not a living document. It is a binding contract between the people and their government. Substantive due process is the ink eraser the Court uses to rewrite the deal. We should demand a return to the original terms before the eraser wears through the page.