Substantive Due Process

The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action.

Justice Souter's separate opinion in Washington v. Glucksberg is an excellent discussion of substantive due process. The opinion shows the principle arose before the Civil War in a range of cases, including in the Supreme Court.  One early reference in the Marshall Court (maybe fleshed out over some wine) defined due process of law (there applying a state provision) thusly:

As to the words from Magna Charta, incorporated into the Constitution of Maryland after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.

The first application of the Fifth Amendment provision might be Bloomer v. McQuewan (1852), which interprets a patent law a certain way to avoid deprivation of property rights.  This was before Dred Scott v. Sandford, the infamous slavery ruling, which is regularly used to targeted substantive due process. OTOH, the Republican platform of 1860:

[T]hat as our Republican fathers .. . ordained that 'no person shall be deprived of life, liberty or property without due process of law' . . . we deny the authority of the Congress, of a Territorial legislature, or of any individuals, to give legal existence to slavery in any Territory of the United States.

Two articles talking about the "originalist" meanings of due process can be perused for those interested. One argues that substantive due process was well recognized by the 14A, but not so much for the 5A.  Either way, there was an understanding in antebellum times of some sort of unenumerated rights protected in some fashion. For instance, "The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred."  

The "father" of the 14A in the House, John Bingham, also was known to support an open-ended view of due process:

Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law-law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.

This in part was inspired by Daniel Webster's argument in the famous Dartmouth College case.  A close reading shows, and this comes up in certain state cases as well, that there is a certain equal protection ("impartial, equal, exact justice") component.  There is sometimes an argument made that it is dubious for the Fifth Amendment to be given an equal protection component when there is a separate Equal Protection Clause.  Nonetheless, there was understood to be one there.  

Justice Thomas in Dobbs v. Jackson wrote separately to underline the argument of some (even some who support an open-ended view of fundamental rights) that substantive due process is absurd.  Nonetheless, there is a deep history here, one where a clean line between procedural (can be denied if done with a fair hearing and such) and substantive (a fair procedure might not be enough) is not present.  

The "substantive" concept was referenced back in 1897 by a unanimous Court (on this matter) in an opinion by Justice Harlan (honored sometimes) that incorporated the Takings Clause.  (So, years before Republic Natural Gas Co. v. Oklahoma, referenced in one article.) Basically, the Court held that even a fair procedure was not appropriate with just compensation. To wit:

But a State may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law regard must be had to substance, not to form. 

The opinion reaffirmed open-ended language in past cases such as "there [are] private rights in every free government beyond the control of the State."  Again, this principle was expressed in various ways in antebellum times, including recognition of "vested rights" which can not be removed even with procedural due process.  Marbury v. Madison made reference to this, his right to his commission such a right.

It is somewhat late in 2022 to override principles that were in place over hundred years, if not more than two hundred. Anyways, if you do not like "substantive due process," again, the basic concept generally can be secured in some other way such as the Ninth Amendment or privileges and/or immunities.  

Substantive due process is not an oxymoron. The general idea goes back to the "law of the land" of the Magna Charta. There was long an understanding that people had certain rights as part of this law, rights that sometimes were framed in open-ended "liberty" tones.  The legislature could not deprive people of such rights.  Due process was not merely a limit on the executive.  There was some broad idea that the legislature could not arbitrarily act, including by favoring certain groups over others. 

For those who want precedent with originalist language, we have Murray's Lessee (by Justice Curtis, of the Dred Scott dissent fame).  The "law of the land" reference is there. And, we are told:

It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process "due process of law," by its mere will.

How does it suggest we determine the nature of "due process"? Well, look at the Constitution itself as well as those processes traditionally found to be proper under the common law.  The Court looked for those transferred from England that were not "unsuited to their civil and political condition by having been acted on by them after the settlement of this country." 

This would in time develop into the commonly framed definition of due process, including "implicit in the concept of ordered liberty" and "so rooted in the traditions and conscience of our people as to be ranked as fundamental."  Again, the trope of carting out Dred Scott as if that is where this came from is tripe on a basic level. It is about as bad as using that case as a reason to be against originalism because it was done wrong there.

Justice Curtis in that case answered the limited due process component of the majority opinion by noting that slavery was a product of the positive law of the land where it exists.  It is not like life or liberty, an inherent right we always have.  Slavery could be banned.  Something like exercise of religion or caring for children is different.  The answer is not that "due process" is merely a procedural protection, full stop. 

Justice McLean separately noted that a slave is not mere property, but a being with spirit, "A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence."  He also explained how Congress could ban slavery in territories. Congressional power here shows that due process was not violated in the process of the Missouri Compromise. 

Early cases often were concerned about "property," but the term in time had an open-ended quality.  The protection of private property could include the protection of private lives. The Fourth Amendment reflects this principle as noted by Griswold v. Connecticut.  And, the same overall protections could be used against slavery and individual liberty overall.

For those who want to appeal to originalism, again, it seems that at least by 1868 that "due process of law" had a substantive aspect. Surely, by some provision (maybe the P/I was deemed the main one) a strong protection of individual liberty and property was believed to be present. The dissents of the Slaughterhouse Cases (1873) ultimately was recognized as correct on this general principle, even if the state interest there was valid.

But, we still debate these things somehow.  Well, there are various arguments that go back to ancient times. Why not this?