Substantive Due Process: The Power to Grant Monopolies in the Federalist Marketplace of State Experimentation
Thomas, Curtis, Brigham Young University Law Review
Substantive due process is a controversial doctrine due to its lack of a limiting principle that prevents courts from aeating or extending rights beyond the text of the Constitution. This Comment suggests that the effects of substantive due process should be evaluated from a perspective of their likely effect on the federalist marketplace of state experimentation. From this perspective, the application of substantive due process should be limited to natural rights, which are the equivalent of natural monopolies in economic marketplaces. The remaining rights should be allowed to develop through state experimentation.
Substantive due process is one of the most controversial doctrines currently applied by the Supreme Court.1 The doctrine is so controversial that its very name has been called a "contradiction in terms,"2 an "oxymoron,"3 and even "a momentous sham."4 The root of the controversy surrounding the application of substantive due process is not that it protects substantive rights through a provision requiring procedure, but that it allows the Court to expand the protections of the Constitution based on judicial discretion with no clear limits.5 Although substantive due process has been the vehicle for applying the Bill of Rights to the states through the process of incorporation,6 the most controversial applications of substantive due process have been those that, rather than being limited by the text of the Constitution, have developed from general abstract concepts such as "deeply rooted in this Nation's history and tradition"7 or "implicit in the concept of ordered liberty."8
The search for limitations on substantive due process has generated significant scholarship. For example, Thomas W. Merrill argues that substantive due process should be limited by general principles in the Rules of Decision Act and the Constitution, such as separation of powers, federalism, and electoral accountability.9 Supreme Court Justices Scalia and Thomas have argued that "deeply rooted in this Nation's history and tradition" should be strictly interpreted and should involve a searching inquiry into practices in place at the time that the Fifth and Fourteenth Amendments were ratified.10
This Comment will argue for similar limits on the application of substantive due process by refraining the issue from a concern with fundamental rights to a concern with interference on a federalist marketplace of state experimentation. Specifically, the marketplace of state experimentation should generally be allowed to determine the extent of fundamental rights by allowing policies to compete for acceptance among the states, unless the rights are natural. Although this Comment will address some of the normative concerns surrounding the doctrine, the main goal of this Comment is to provide an economic framework and economic terminology that can be used to discuss the normative effects of substantive due process.
Substantive due process affects the interaction of the state and federal governments in the federalist system. In general, the federalist system gives states the ability to experiment with different policies and to protect different rights or to protect the same rights at different levels.11 The importance of this feature of federalism has been recognized by the United States Supreme Court, as has the seriousness of interfering with it:
It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. . . . We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. …