Undue Process: A Historiography of a Legal Principle

Dom Rottman

14 July 2022

There have been some changes in our country recently.

Once again, we are reminded of the inadequacies of law. Once again, we are reminded that for whatever reason, supreme power is vested in nine old people for the remainder of their lives. And once again, we are reminded that our values and our sense of justice are antinomious to those institutions which pretend to act on them. This happens every June, but this year, much more so.

This year’s Dobbs v. Jackson Women’s Health Organization decision overturned the landmark Roe v. Wade decision1 which ensured that the state could not prevent abortion on account of the woman’s right to privacy. With a remarkable and overwhelming speed unheard of for the law, practically in an instant, the material conditions of American women have changed drastically for the worse. While the state would prepare trigger laws to ensure that this would be so, it is somehow always loathe to improve material conditions at a rate faster than a narcoleptic snail.

And it always gets worse. The Supreme Court of the United States, vested arbitrarily with the greatest political power conceivable, are able to not only mold the nature of law to a particular suit, but also prepare it for other political interests and actions down the line. The United States Constitution, as a “living document,” is constantly bedridden, whether it is completely alert and well, comatose, pumped up with drugs, or all but dead; its quality and state of life change with the whims of the powers that be. The Constitution is a piece of paper, and has the constitution thereof.

We often find in Supreme Court decisions and opinions startling and historical foreshadowing. Justice Clarence Thomas’ concurring opinion for the Dobbs decision in particular had an ominous tone, vaguely gesturing towards the reconsideration of cases like Obergefell v. Hodges and Griswold v. Connecticut, which have ensured the rights of same-sex marriage and contraceptives respectively. Thomas bases his opinion on the absurdity of “substantive due process,” the principle through which courts often consider the protection of unenumerated rights, including, most importantly, the right to privacy. This is what makes Thomas’ opinion notable in contrast to the full opinion, which maintains the principle (albeit in a more limited way), or Justice Brett Kavanaugh’s concurring opinion, which makes no mention of the doctrine, and which explicitly states further that the decisions Thomas mentions are not under threat. The Syllabus assures American citizens that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

So, on the one hand, we have a pinky promise to go no further, and on the other, a challenge to see precisely how far.

It may strike us, initially, that substantive due process is a rather good idea. But if the court’s decision has anything to show, substantive due process as justification holds all the water of a paper hat. This flimsiness is one of the reasons why Democrats have often been entreated to codify the provisions of Roe v. Wade into law, and for the sake of the party’s election interests, the reason why they haven’t. Substantive due process is just one among many other legal principles, precedents, and other things found in case law, which are all too frequenty rather weak (stare decisis couldn’t save Roe v. Wade either), arbitrary (each circumstance is unique), or inherently foolish (does our relationship to the law not radically evolve over time?). This is not to disparage the importance of case law, and above all the importance of history, in the business of law and politics. But to adequately house those things which we hold dear, those rights which we take to be fundamental, we ought to have a stronger foundation. I would agree, then, with Thomas that “the Due Process Clause [of the United States Constitution] does not secure any substantive rights,” and “does not…‘forbi[d] the government to infringe certain “fundamental” liberty interests.’” To be sure, I do not mean to disavow unenumerated rights such as the one to privacy–these rights are very real. But what this decision allows for, however, is an opportunity for us to find stronger legal, political, and moral foundations for the rights we value.

I don’t mean this in some kind of accelerationist manner; that I’m arguing that the decision is actually fortunate because of the crisis induced. There was no reason why we couldn’t have (and indeed, we should have) found other, stronger justifications for our rights prior to the decision. Still, as the cracks in our old foundations widen, we can see through them what could not have been considered before.

The principle of substantive due process has a storied history. In his concurring opinion Thomas cites Dred Scott v. Sandford as, in his view, the definitive instance of substantive due process, since it can have implications so egregious as to forbid congress from freeing slaves. For those who would share his opinions, this seems like the silver bullet to start a collapse of the principle and all of the rights it has come to house. There is a temptation to condemn Thomas’ citation as an incendiary invocation since the greater point of the Dred Scott decision was its infamous holding that black people were not people, to which anything like substantive due process was considered secondary. However true this may be, to condemn his opinion as such would be a mistake. If Thomas would stake his claims on the ground of history, we can meet his challenge there.

For someone so conservative as Thomas it is not surprising that he elides a particular chapter of the notorious history of substantive due process which, on account of the rights it has seemingly provided, liberals have been eliding as well. The late 19th and Early 20th century were extraordinary in the history of American Labor, where worker’s rights were, literally, violently contested. While there was often success, there was just as often resistance.

The so called “Lochner era,” named after the landmark case Lochner v. New York in 1905, was the period in which substantive due process truly came to legal relevance. What was at stake were not the unenumerated rights of workers, but rather the unenumerated rights of employers. The Lochner decision held that a New York State law which restricted bakers to work no more than 60 hours per week was unconstitutional because it infringed on the employer’s (unenumerated) right to freedom of contract. Under the principle of substantive due process, the Supreme Court claimed that the state had no business in restricting the terms of an employer’s contract; a violation of the right to contract amounted to a deprivation of liberty and/or property. Consequently, this precedent allowed for courts to defend absolute laissez-faire capitalism against an increasingly resentful army of exploited workers.

Ultimately, though, it wasn’t terribly effective. Theodore Roosevelt, after his presidency, became infamous for stoking popular anti-court sentiments among progressives,2 and the Supreme Court (whether this was a consequence of popular sentiment or not) was not absolutely steadfast in its defense of business. The Wilson v. New decision in 1917, for example, successfully upheld an eight hour day and minimum wage for railroad workers. The Lochner era would definitively end during Franklin Roosevelt’s presidency, with the landmark West Coast Hotel Co. v. Parrish decision in 1937 upholding a Washington State minimum wage law for women, and the passing of the Fair Labor Standards act a year later, creating a national minimum wage and child labor protection. Substantive due process would not become particularly relevant again until the Griswold decision, where it first became used to defend our right to privacy. This is rather ironic: the tool invented to suppress the worker became the tool to advocate for the citizen. And in both cases, as current events now reveal, its structure seems weak. But the cracks in the history of substantive due process reveal more than just the weakness of a legal principle. It reveals a legacy of political contest, where the judicial world and the council of nine old wizards seems less scary and imposing.

Lest we mistakenly give thanks to our political and legal lords, it is worth remembering that the late nineteenth and early twentieth centuries were rife with violent labor conflict. The reforms (and lack thereof) made during this period cannot be adequately understood without its extralegal historical context, including both this violence and popular discontent overall. We ought not give credit to (either) Roosevelt, or any political leader, for a resentment of the powers that be that was clearly already there. Generously, we can say that they had the unique power and circumstance to bring popular sentiments into law. Cynically, we can say that they manipulated those sentiments for political gain, and then tempered them down to maintain the status quo. The truth is likely somewhere in between. The point, though, is that law is no foundation, nor is it the be-all end-all of politics; it is a construct of varying integrities, of which mere principles are among the most weak, malleable, and manipulable points.

The idea of a right to contract would not have occurred to anyone a moment before the interests of the employer were threatened, not because it was an absurd idea (although it is), but because there was nothing to defend it against. When the anguish of workers became so great that it began to overwhelm legislatures, the capitalist retreats to the courts, the courts give him quarter, and reinforce him with new weapons of “right”. And then later, these weapons, discarded for many years, get taken up by newly oppressed people to turn them against their own smiths. The powers that be, unable to stand the irony, call for disarmament. The battle is reset, and the oppressed are called to mobilize for a third offensive, for they have seen this one before, with the ghosts of the old heroes, the old victors, behind them.

As substantive due process begins to no longer hold, there would be nothing more appropriate than to embrace the spirit of the era from which it came forth: one of direct action and overwhelming popular discontent aimed at our oppressive institutions. No, the principle has not yet been overturned, only threatened. But the spirit of action remains the same: The law cannot grant with one hand what it takes with the other; the powers that be purchase our weakness with their own. When the “rights” of oppressors become under siege, they will all of a sudden spring into being again, and can then be rightly snatched by those who actually have them.

The lesson here is that the pressure of oppressed people has historically bled into the insidious realm of law. This has not always happened through legal means. It often doesn’t. Were it not for the labor movements of the late nineteenth and early twentieth century, one wonders how much worse The Lochner era could have been. And to be sure, figures such as the great Bull Moose, regardless of motivation, knew better than to cross the workers any further, and chose also to stand for their rights–and for this the Democrats ought to take note.

Furthermore, it is also the case that the law is often a double-edged sword. Again, substantive due process was at first a principle which the Supreme Court wielded against working people; they had no way of knowing that it would later be wielded by ordinary people later to assert their individual rights against oppressive forces, the state no less than the corporation. It would behoove the more legal minded, then, to look for those points in the law which can be turned against the powers that be. This is, in part, what (benevolent) lawyers are for, to examine and interpret the law and its history to advocate for the rights of their defendants.

The fact that we are not living in a worst-case scenario should give us nothing of hope, relief, or despair. Our circumstances call for an appropriate analysis of possibilities, a survey of a well-worn battleground that isn’t so asymmetrical as it might seem. I do not mean to suggest “calm and rational” action or otherwise suggest an abandonment of passion–American workers did not put their lives on the line in a modest, reserved manner. I mean only to say that what can be done is defined by a particular historical moment; though we speak now of a “regression,” we ought not to think of “progress” as pushing back on that same trajectory, but rather as moving forward in hitherto unforeseeable directions. By pushing onward in such a manner, the true foundations of our rights and things we hold dear are refined, and the law, thinning out to the flimsy foil of justice, would become increasingly unjust to strike it.

  1. All of the cases cited/mentioned throughout have been accessed through Cornell Law School’s Legal Information Institute ↩︎

  2. The New York Times has published many of Roosevelt’s speeches where this was expressed, but the Times has decided to lock its archives behind a subscription. ↩︎