Substantive Due Process: Dangerous or Necessary?

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1868. While these attempts are noble in their intentions, their controversial nature has inhibited their success. To understand the original intent of the Fourteenth Amendment, we must first begin with the Civil Rights Act of 1866. Immediately following the ratification of the Thirteenth Amendment, southern states began passing legislation historically known as the “black codes.” 2 These laws, publicly presented as benevolent acts to help guide African-Americans through their first years as free citizens, imposed heavy restrictions on their most basic freedoms—such as the ability to rent land or bear arms—and, most insidiously, often mandated that recently freed slaves “apprentice” for their former owners with only room and board as compensation. 3 Congress passed the Civil Rights Act of 1866 as a response to these codes. The act established that all American citizens must be treated equally under the law, and that those in violation would be prosecuted by the federal government. 4 President Johnson, concerned about overly extending the federal government’s influence in state affairs, vetoed the act. Although Congress easily overrode his veto, radical Republicans remained concerned that Johnson, or future elected officials, would push to undermine or repeal the act. Just two months after overriding President Johnson’s veto, Congress passed the Fourteenth Amendment, which, upon its ratification in 1888, solidified the basic principles of the Civil Rights Act in the Constitution and, by doing so, made it virtually impossible for those principles to be effectively challenged. 5 It is important to note that the Fourteenth Amendment is not an exact replica of the Civil Rights Act of 1866. Both provide for equal protection under the law, but only the latter lists the exact rights that have that equal status, and only the latter goes as far as to explicitly establish that the relevant standard of equality is the one “enjoyed by white citizens.” 6 The relative ambiguity of Section I of the Fourteenth Amendment, which protects “privileges and immunities” and “equal protection under the law” without detailing exactly which privileges or which laws are applicable, grants the judiciary broad license to guard practices they deem 2 Edward L. Ayers, "Reconstruction" in American History, 1493-1945, The Gilder Lehrman Institute of American History, New York, 2015, http://www.americanhistory.amdigital.co.uk.revproxy.brown.edu/Explore/Essays/Reconstruction. 3 Edward L. Ayers, "Reconstruction" 4 Civil Rights Act of 1866, ch. 31, 14 Stat. 27-30, 39 Cong., 1 Sess., (Apr. 9, 1866), https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf, 2. 5 History, Art & Archives, U.S. House of Representatives, "The Civil Rights Bill of 1866," November 16, 2020, https://history.house.gov/Historical-Highlights/1851-1900/The-Civil-Rights-Bill-of-1866/. 6 CRA 1866, 27.
worthy of privileged status. 7 In this way, the amendment was designed to age with its country, to adapt to the newest, most pressing legal issues of a given time. This principle of constitutional flexibility is not unique to this amendment; the Ninth Amendment was borne out of Federalist concerns that excessive enumeration of rights would allow future governments to deny rights not foreseen, remembered, or agreed upon by every state. 8 So came the Ninth Amendment, which Madison drafted to solidify the status of unenumerated rights, and so came the Fourteenth Amendment a century later, which elevates the status of unenumerated rights even further. Unlike the Ninth Amendment, which was intended to limit the influence of federal government, the Fourteenth is meant to limit the influence of state governments; thus, while the principles of the Ninth and Fourteenth Amendments may be similar, only the latter had the effect of greatly expanding the judiciary’s sphere of influence to the states. 9 Since the Fourteenth Amendment was ratified, courts and legal scholars have capitalized on its vague language to further their preferred (and, according to them, fundamental) liberties. Throughout the Lochner era (1880-1905), courts supported laissez-faire economic theories by deriving a right of “free contract” from the due process clause of the Fourteenth Amendment. 10 At the end of this era came the Lochner decision itself, in which the highest court in the United States affirmed the right of free contract, and by so doing confirmed its own right to create and subsequently impose rights upon the states. A court could now claim that any given principle is a previously implicit, now explicit, fundamental right that the state(s) must respect because of the state-specific language of the Fourteenth Amendment. In the modern day, the potential of substantive due process to incorporate unenumerated rights has been most famously demonstrated in cases involving abortion. In the 1993 case Operation Rescue v. Women’s Health Center, the Florida Supreme Court reviewed a permanent injunction imposed upon pro-life group Operation Rescue, which had been protesting daily outside of a women’s health center. The injunction prohibited many activities that the group had designed to interfere with the work of the clinic, including but not limited to verbally or 7 U.S. Const. amend. XIV, § 5. 8 Randy E. Barnett and Louis Michael Seidman, "The Ninth Amendment," Interactive Constitution, November 17, 2020, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ix/interps/131. 9 U.S. Const. amend. XIV § 5. 10 Lochner v. New York, 198 U.S. 45, 57 (Apr. 17, 1905), accessed January 22, 2021. https://tile.loc.gov/storage-services/service/ll/usrep/usrep198/usrep198045/usrep198045.pdf.
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