BY DAVE MIN
My polemical punching bag, J.R. Parker, attacks substantive due process, or the judicial protection of individual liberties not explicitly enunciated in the Constitution as a bad thing because it is anti-majoritarian. He points to the Dred Scott case as the first major example of a judicially created individual right (the right of “property” in slaves), and argues that this decision, as much as later decisions like Roe v. Wade (right of privacy) and Reynolds v. Sims (right of an equally weighted vote), was essentially an instance where unelected judges acted beyond their constitutionally specified powers to defeat a democratically enacted decision.
So let us delve into the idea that the substantive due process in Dred Scott is self-evidently evil and a proximate cause of the Civil War, as many have claimed. As most of us are aware, Dred Scott was an infamous decision by the Supreme Court that overturned the Missouri Compromise and opened up all of the Territories to slavery. In retrospect, this was a terrible decision. But what was terrible about it? Was it the substantive due process claim that a majority of Congress categorically cannot deprive citizens of their property when they travel into other American territories? Or is the odious proposition the idea that “Negroes” could be considered property?
Consider these words by Justice Taney (not Scalia or Thomas), in answering arguments that the Constitution should be interpreted to consider “Negroes” citizens for the purposes of its protections: “No one, we presume, supposes that any change in public opinion or feeling … should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” Yes, that’s right. Strict interpretation and originalism entrenched the right of slavery, perhaps making the Civil War inevitable.
Nonetheless, let’s take Dred Scott’s declaration of substantive property rights as a historical starting point for substantive due process. This brings us to another flaw in the Mr. Parker’s argument — the fact that this reviled ascension of judicial power coincides with what many of us consider to be the greatest historical period of the greatest nation in the world. When people marvel at the scope and longevity of the American democratic experiment, when they talk about the greatness of the American Constitution, they tend to refer to this Constitution mostly in terms of its post-Civil War history. And, the fact is, judicial interpretation of certain individual rights as presumptively protected against violative legislative action under the Fourteenth Amendment is an integral part of this history. Thus, if one is attacking substantive due process, one is, in a fundamental way, really attacking the history of American governance, as practiced, not as in theory.
But what of the anti-majoritarian claim, that judicial review generally, and substantive due process specifically, is contrary to the idea of majoritarian sovereignty? Clearly, to some extent, this claim is true. But let us not forget that this is also within the scope of the Fourteenth and Ninth Amendments, which were supermajoritarian acts: that liberties are explicitly to be protected against state action, and that liberties are explicitly not confined to those enumerated in the Constitution. Obviously, what exactly these liberties are is and has been a matter of great debate over the years. But to claim that judges have no role in overturning state action is effectively to say that a national 2/3 or 3/4 vote to amend the Constitution can be systematically thwarted by a simple majority of state legislators.
Additionally, we can blunt the anti-majoritarian claim by pointing out that, if judicial conceptions of individual liberties are out of sync with American consensus (governing from the bench), that the Amendment process is extremely well suited to deciding such discrete and definable issues, through a supermajoritarian vote. Substantive due process, insofar as it purports to protect individual rights against simple majority votes, seems entirely consistent with the Fourteenth Amendment and with ideas of democratic government. Essentially it seems to describe a notion of American ideology with which many of us agree — that democracy and liberty are the twin pillars upon which this Nation stands, and that in a liberal democracy, it is fair and consistent to require greater consensus than a mere majority to violate someone’s liberty.
In short, we should take great heed of the immortal words of that most sagacious and bodacious of rock bands, Journey, when they said, “It goes on and on and on and on. Don’t stop believing, hold on to the feelin’.”