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An Unlikely Agreement?: Robert Bork and Hugo Black on Substantive Due Process

No person shall be held to answer for a capital, or otherwise infamous crime, [...] nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” - Amendment V of the United States Constitution

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” - Amendment XIV of the United States Constitution

The due process clauses of the Fifth and Fourteenth Amendments have been extremely litigated parts of the American Constitution. They have also given birth to the doctrine of “substantive due process” which has notably been used in several famous cases such as Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges, to name but a few. Substantive due process is the notion that there can be unenumerated rights in the Constitution that cannot be infringed upon by the Federal or State governments, except where the strict scrutiny standard is passed in favour of the law.

The origins of substantive due process to protect “fundamental rights” held by people did not originate in cases regarding civil liberties (as per Roe v. Wade and Obergefell v. Hodges), but rather stemmed from the “right of free contract” set forward in Lochner v. New York. This created an era where freedom of contract was held as a fundamental right which could be invoked by the Supreme Court to invalidate any statutes that interfered with it. It was not until West Coast Hotel Co. v. Parrish that the Court repudiated Lochner v. New York and, thereby, the doctrine of substantive due process.

However, the doctrine did not die out. The majority opinion in Griswold v. Connecticut created a “right to privacy” based on the idea that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance”. In other words, rights guaranteed by the First, Third, Fourth, and Fifth Amendments created “zones of privacy” which could not be interfered with by the State or Federal government. The overturning of the archaic Connecticut law banning contraceptives thus led directly into the Court’s decision in Roe v. Wade. This case famously stated of the Griswold v. Connecticut holding that:

“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or […] in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy”.

Through this, substantive due process became the justification for one of the most controversial Supreme Court decisions, both due to its subject matter and its legal reasoning.

While criticism commonly comes from conservative legal commentators, substantive due process has also come under fire from a number of reputable liberal scholars and jurists such as John Hart Ely and Oliver Wendell Holmes Jr. However, as controversial figures in American jurisprudence, Robert Bork and Hugo Black represent an unlikely agreement between conservatives and liberals in the domain of the law.

Bork’s critique of substantive due process found in The Tempting of America centers around the doctrine being both non-existent in the Constitution and being an instrument by which the judiciary can begin to entertain a legislative function. Bork suggests that the history of substantive due process and the cases that constitute the use of the doctrine stem from the infamous Dred Scott v. Sandford. In this case, Chief Justice Taney wrote that slave ownership was constitutional due to the postulation that slaveholding constituted a “right of property”, thus leading Taney to create the first occasion of substance being “poured” into the due process clause. As seen by the overview above, and by Bork:

“once it is conceded that a judge may give the due process substantive content, Dred Scott, Lochner, and Roe are equally valid examples of constitutional law”.

Furthermore, Bork elaborates his position against the doctrine by stating that the “principles of freedom” created by the Court “are nowhere to be found in the Constitution”, but are rather a consequence of “judicial policymaking”. The temptation of a judge to “choose between his version of justice and abiding by the American form of government” is the road by which they can either venture into the realm of becoming an unelected legislator, or follow the “impersonal logic” of the law.

Following in the same strand of judicial restraint as Bork is the liberal Justice Hugo Black, who, despite his political leanings, favours restraint in the judicial branch. Black’s noted dissent of the Court’s decision in In re Winship highlighted that the words “due process” found in the Constitution date back to similar language in the Magna Carta. That is, according to Black, an “expression for governmental proceedings according to the "‘law of the land’" as it existed at the time of those proceedings”. In short, the due process clause was intended “to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power” or the Court declaring a law invalid because it shocked “the consciences of at least five members of this Court”. This use of judicial review thus subverts the “liberty of government by the people” by overturning laws enacted by legislatures who are answerable to the electorate rather than a majority in the Supreme Court.

The common denominator between Bork and Black’s criticisms of the Court is the tendency for the Court to act “counter majoritarian”, or against the very foundation of democracy itself. As Bork stated regarding the Scott case, and as Black writes in his Griswold dissent:

“The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.”

Therefore, if American democracy is to flourish in an overly partisan culture, then the danger posed by substantive due process must be curtailed. Only this way will the will of the people (liberal and conservative alike) be able to survive in the face of an increasingly-used legal doctrine that overthrows the separation of powers. One might be tempted to say that the usage of the doctrine for progressive politics has benefitted American society. Such a view, however, must be reminded of the instances in history where the very same idea was used to justify complete economic deregulation, and even more horrendously, that African Americans were not citizens of the United States.


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