By Nathan S. Chapman and by Kenji Yoshino @ National Constitution Center
Editor's Note: I don't have permission to publish this in full, but given what's going on with SCOTUS all of a sudden discovering entirely too many decisions from the court over the decades have absolutely no basis in the Constitution, and the 14th Amendment is behind so much of it, I've chosen to publish this in full. If the authors object, I will alter this to a link, but this is an important piece in fitting together the pieces of the puzzle of understanding over what's happened with regards to the decades of decisions convoluting America's values and rights creating rights and privileges out of thin air justifying those decisions with penumbras and emanations of the Constitution. And important in understanding what might be part of future decisions in the effort to make the courts understand it's not their job to legislate from the bench. RK
The Due Process Clause of the Fourteenth Amendment is the source of
an array of constitutional rights, including many of our most
cherished—and most controversial. Consider the following rights that the
Clause guarantees against the states:
- procedural protections, such as notice and a hearing before
termination of entitlements such as publicly funded medical insurance;
- individual rights listed in the Bill of Rights, including freedom of
speech, free exercise of religion, the right to bear arms, and a
variety of criminal procedure protections;
- fundamental rights that are not specifically enumerated elsewhere in
the Constitution, including the right to marry, the right to use
contraception, and the right to abortion.
The Due Process Clause of the Fourteenth Amendment echoes that of the
Fifth Amendment. The Fifth Amendment, however, applies only against the
federal government. After the Civil War, Congress adopted a number of
measures to protect individual rights from interference by the states.
Among them was the Fourteenth Amendment, which prohibits the states from
depriving “any person of life, liberty, or property, without due
process of law.”
When it was adopted, the Clause was understood to mean that the
government could deprive a person of rights only according to law
applied by a court. Yet since then, the Supreme Court has elaborated
significantly on this core understanding. As the examples above suggest,
the rights protected under the Fourteenth Amendment can be understood
in three categories: (1) “procedural due process;” (2) the individual
rights listed in the Bill of Rights, “incorporated” against the states;
and (3) “substantive due process.”
Procedural Due Process
“Procedural due process” concerns the procedures that the government
must follow before it deprives an individual of life, liberty, or
property. The key questions are: What procedures satisfy due process?
And what constitutes “life, liberty, or property”?
Historically, due process ordinarily entailed a jury trial. The jury
determined the facts and the judge enforced the law. In past two
centuries, however, states have developed a variety of institutions and
procedures for adjudicating disputes. Making room for these innovations,
the Court has determined that due process requires, at a minimum: (1)
notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).
With regard to the meaning of “life, liberty, and property,” perhaps
the most notable development is the Court’s expansion of the notion of
property beyond real or personal property. In the 1970 case of Goldberg v. Kelly,
the Court found that some governmental benefits—in that case, welfare
benefits—amount to “property” with due process protections. Courts
evaluate the procedure for depriving someone of a “new property” right
by considering: (1) the nature of the property right; (2) the adequacy
of the procedure compared to other procedures; and (3) the burdens that
other procedures would impose on the state. Mathews v. Eldridge (1976).
“Incorporation” of the Bill of Rights Against the States
The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.
One of the purposes of the Fourteenth Amendment was to provide
federal protection of individual rights against the states. Early on,
however, the Supreme Court foreclosed the Fourteenth Amendment
Privileges or Immunities Clause as a source of robust individual rights
against the states. The Slaughter-House Cases
(1873). Since then, the Court has held that the Due Process Clause
“incorporates” many—but not all—of the individual protections of the
Bill of Rights against the states. If a provision of the Bill of Rights
is “incorporated” against the states, this means that the state
governments, as well as the federal government, are required to abide by
it. If a right is not “incorporated” against the states, it applies
only to the federal government.
A celebrated debate about incorporation occurred between two factions
of the Supreme Court: one side believed that all of the rights should
be incorporated wholesale, and the other believed that only certain
rights could be asserted against the states. While the partial
incorporation faction prevailed, its victory rang somewhat hollow). As a
practical matter, almost all the rights in the Bill of Rights have been
incorporated against the states. The exceptions are the Third
Amendment’s restriction on quartering soldiers in private homes, the
Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s
right to jury trial in civil cases, and the Eighth Amendment’s
prohibition on excessive fines.
Substantive Due Process
The Court has also deemed the due process guarantees of the Fifth and
Fourteenth Amendments to protect certain substantive rights that are
not listed (or “enumerated”) in the Constitution. The idea is that
certain liberties are so important that they cannot be infringed without
a compelling reason no matter how much process is given.
The Court’s decision to protect unenumerated rights through the Due
Process Clause is a little puzzling. The idea of unenumerated rights is
not strange—the Ninth Amendment itself suggests that the rights
enumerated in the Constitution do not exhaust “others retained by the
people.” The most natural textual source for those rights, however, is
probably the Privileges and Immunities Clause of the Fourteenth
Amendment, which prohibits states from denying any citizen the
“privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.
The “substantive due process” jurisprudence has been among the most
controversial areas of Supreme Court adjudication. The concern is that
five unelected Justices of the Supreme Court can impose their policy
preferences on the nation, given that, by definition, unenumerated
rights do not flow directly from the text of the Constitution.
In the early decades of the twentieth century, the Court used the Due
Process Clause to strike down economic regulations that sought to
better the conditions of workers on the ground that they violated those
workers’ “freedom of contract,” even though this freedom is not
specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York
is a symbol of this “economic substantive due process,” and is now
widely reviled as an instance of judicial activism. When the Court
repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).
Substantive due process, however, had a renaissance in the
mid-twentieth century. In 1965, the Court struck down state bans on the
use of contraception by married couples on the ground that it violated
their “right to privacy.” Griswold v. Connecticut.
Like the “freedom of contract,” the “right to privacy” is not
explicitly guaranteed in the Constitution. However, the Court found that
unlike the “freedom of contract,” the “right to privacy” may be
inferred from the penumbras—or shadowy edges—of rights that are enumerated,
such as the First Amendment’s right to assembly, the Third Amendment’s
right to be free from quartering soldiers during peacetime, and the
Fourth Amendment’s right to be free from unreasonable searches of the
home. The “penumbra” theory allowed the Court to reinvigorate
substantive due process jurisprudence.
In the wake of Griswold, the Court expanded substantive due
process jurisprudence to protect a panoply of liberties, including the
right of interracial couples to marry (1967), the right of unmarried
individuals to use contraception (1972), the right to abortion (1973),
the right to engage in intimate sexual conduct (2003), and the right of
same-sex couples to marry (2015). The Court has also declined to extend
substantive due process to some rights, such as the right to
physician-assisted suicide (1997).
The proper methodology for determining which rights should be
protected under substantive due process has been hotly contested. In
1961, Justice Harlan wrote an influential dissent in Poe v. Ullman,
maintaining that the project of discerning such rights “has not been
reduced to any formula,” but must be left to case-by-case adjudication.
In 1997, the Court suggested an alternative methodology that was more
restrictive: such rights would need to be “carefully descri[bed]” and,
under that description, “deeply rooted in the Nation’s history and
traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg
(1997). However, in recognizing a right to same-sex marriage in 2015,
the Court not only limited that methodology, but also positively cited
the Poe dissent. Obergefell v. Hodges. The Court’s approach in future cases remains unclear.
