This conference charitably opens with a gift. Its organizers begin by granting to substantive due process the right to exist. This is hot a small or insignificant gift. Political experience suggests how big a step it is for one antagonist to grant the other's right to exist. With that matter conceded, it seems, the contenders need hot fight the battle for legitimacy, but may devote all their energies to the definition of boundaries.
But this gift is a Trojan Horse; it poses a menacing challenge hidden deep within. If the proponents of substantive due process cannot defend its boundaries satisfactorily, then evidently the principle of enforceable liberty itself is at risk of being banished to oblivion with a pronouncement of illegitimacy across the board. Alan Meese admits as much:
The absence of such an explanation [for the way in which the Supreme Court
has treated liberty], or, what may be worse, the provision of an
explanation that will not withstand scrutiny, suggests that the distinction
between personal rights and economic rights, and, with it, the legitimacy
of the enterprise of substantive due process, is an illusion.(1)
This Essay is an effort to rout the troops crouched in the bowels of the marvelous Horse, to challenge them with a strong offensive charge on behalf of vigorous liberty protection under the Fourteenth Amendment. More prosaically, my purpose is to suggest some of the limitations of what I will call the "conservative critique" of substantive due process, a critique taken up in Meese's paper.(2) The foundation of that critique is that, because the Framers valued some of the types of liberty that we now call economic rights, modern courts should give robust protection to these rights, and only these rights, against most types of government regulation.(3) The judiciary's failure since 1937 to do so, the critique maintains, constitutes a breach of fidelity to the Constitution itself and casts serious doubt on any judicial effort to protect liberties of any kind from state abridgment.
The conservative critique propounds impoverished notions of both liberty and fidelity. This Essay offers some reminders about the development of liberty in this country, as well as some historical, theoretical, and common sense considerations that might guide us in the development of a better approach to the protection of liberty under the Constitution.
Professor Meese is on the right track when he questions the relatively recent splitting of liberty into two distinct categories, economic and personal.(4) He correctly questions the Supreme Court's decision to apply strict scrutiny to laws curtailing personal liberties while seeking only a rational basis fort laws impinging upon economic liberties. This artificial pigeonholing--particularly when the arbitrary choice of pigeonhole has such radically significant consequences--serves neither history nor principle. Though I grant Meese this first step of his argument, my concession ends here. Meese goes astray when he suggests that the categories themselves are meaningful, but that if substantive due process is to be "principled,"(5) then the specific freedoms occupying privileged and nonprivileged positions should simply switch places. He does hot go far enough in taking on the categorical jurisprudence that characterizes modern analysis of liberty under the Due Process Clause.
In place of the dichotomous reasoning that has developed around the question of constitutional liberty, I propose a more integrated, common sense understanding of the place of liberty in the roster of individual rights protected by judicial scrutiny under the Fourteenth Amendment. A critical comment on the conservative critique of substantive due process, which would still allow for the fragmenting of liberty into two categories, is one step in the process of reaching that goal.
This Essay discusses the way in which courts have traditionally understood a constitutional claim to liberty under the Due Process Clause, suggesting that liberty did hot originate as a fragmented or hierarchical notion. …