From his opinion yesterday in Bert Co. v. Turk (and see here how he applies this to the particular issue involved in that case, which is federal constitutional limits on state punitive damages awards); the opinion cites our own Randy Barnett many times:
[I.] The United States Constitution protects unenumerated rights. The infirmity of the Supreme Court's precedent that governs the disposition of today's case, however, reinforces widely held doubts that the Due Process Clause—in its "substantive" guises—was ever the proper constitutional anchor for the identification of these rights. Two provisions of the United States Constitution stand out as far likelier guarantees of Americans' unenumerated rights: the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. Both of these fundamental mandates provide straightforward and textual paths to the recognition and protection of unenumerated rights. Oddly and maddeningly, both provisions have languished in obscurity within the pages of the Supreme Court's jurisprudence, while the Court has opted instead to venture further and further down the oxymoronic path of "substantive due process."
If protection from "excessive" punitive damage awards in state courts is properly a matter of federal constitutional concern (and that is a very big "if"), the Supreme Court should provide an intellectually rigorous and disciplined justification for this protection as an unenumerated right grounded either in the Privileges or Immunities Clause or in the Ninth Amendment. Substantive due process is an inappropriate tool for federal oversight of state court punitive damage awards….
[A.] Due Process of Law
The Fourteenth Amendment's Due Process Clause is expressed in simple terms: no state shall "deprive any person of life, liberty, or property, without due process of law." The natural reading of this provision (indeed, the only textual one) suggests that the protected rights, i.e., life, liberty, and property, may indeed be deprived so long as the state provides the requisite "due process of law." This is an expressly procedural protection. It is a guarantee that the government must follow a fair process before the deprivation of any of the important rights identified. This species of due process has come to be known by a facially redundant moniker: "procedural due process." It is from this core guarantee that we derive, for instance, the familiar requirements of notice and a meaningful opportunity to be heard, and the intuitive principle that legal controversies must be decided by a neutral adjudicator. The demand for, and entitlement to, procedural fairness is a robust protection against arbitrary government action, and it stands as a pillar of our rule of law. Whatever the extent and dimensions of the process that may be due under the circumstances of a particular case, it is this constitutional promise that provides the baseline assurance that Americans' rights will be safeguarded by fundamentally fair procedures.
Over time, this concern with procedural fairness evolved, developing into a view that certain governmental actions are intolerable regardless of the process employed. The precise moment at which "substantive due process" crystallized as a distinct doctrine is a matter of some debate. There is little dispute, however, that, by the time of Mugler v. Kansas in 1887, the Supreme Court had embraced the notion that "due process of law" includes substantive limitations upon the sort of laws that may be enforced, independent of considerations of the laws' procedural fairness.
Any discussion of "substantive due process" must clear the initial hurdle of its paradoxical framing. The linguistic tension on the face of the doctrine has always been obvious. As constitutional scholar John Hart Ely famously commented, the phrase is inherently contradictory, "sort of like 'green pastel redness.' " Judge Richard Posner has referred to the doctrine as a "ubiquitous oxymoron." Justice Antonin Scalia used the same word. And Professor Akhil Amar has written that, because "the very phrase 'substantive due process' teeters on self-contradiction, it does not give us a sound starting point, or a directional push to proper legal analysis." Inasmuch as my more pedestrian imagination has always found the phrase perplexing, I take comfort in the knowledge that such giants of jurisprudence as these share my befuddlement.
Although questions of "substance" and "procedure" may at least arguably overlap at the margins, my understanding is that "due process of law" is, and traditionally was understood as, predominantly a guarantee of procedural fairness. As its substantive iterations have burgeoned into an immense body of precedent, the Due Process Clause has been forced to bear ever greater weight through the Supreme Court's uncritical application of the doctrine to vastly different areas of law. It is astounding that, for instance, protection from a certain (or, as it happens, an uncertain) threshold of punitive damages is guaranteed by the same constitutional provision that, throughout its history, has been held to mandate that judges be neutral, to prohibit legislation regulating the weight of loaves of bread, and to secure the fundamental rights to marry or to rear one's children. My primary difficulty with the doctrine is not the various approaches that the Court has taken to understanding unenumerated rights themselves, but rather the fact that it has never made sense to discover these rights within the ambit of due process when there are other plainly more intelligible constitutional sources.
Of course, not all of the Supreme Court's substantive due process cases are created equal. The substantive strand of due process jurisprudence rose to prominence in the notorious "Lochner era," as the Court began to strike down laws intended to spur economic or social reform, ostensibly based upon those laws' perceived intrusion upon substantive rights like the "freedom of contract." …
Not all of the due process jurisprudence that flowed from the Lochner era shared its most reviled attributes, and much of that jurisprudence has survived. Beyond the seemingly mercurial overriding of legislative judgments on ordinary economic matters, the Court also began to recognize certain personally held rights that it deemed fundamental, even though they are not enumerated in the Constitution. Having essentially foresworn the Privileges or Immunities Clause, and having persisted in neglecting the Ninth Amendment, the Supreme Court turned instead to the Due Process Clause. In Meyer v. Nebraska and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, for instance, the Supreme Court struck down laws prohibiting, respectively, teaching foreign languages in schools and sending children to private religious schools. These laws offended, as the Court saw it, the due process interest of "the liberty of parents and guardians to direct the upbringing and education of children under their control." …
In the realm of unenumerated fundamental rights—the last stop on our brief tour of due process—how the law is written is of less consequence, and questions of procedure are eclipsed by substantive focus upon the importance of the right itself. Since the latter part of the twentieth century, the Supreme Court has recognized several of these deeply personal rights. The rights at issue lie at the heart of personal autonomy, private decision-making, and human dignity, and are deemed fundamental to individual liberty, although not specifically listed in the Constitution. The conceptual anchor that the Court chose to use for these unenumerated rights was a strand of constitutional theory that either sounded directly in due process or was derived from an implied right of privacy, which, in time, came to be understood as a component of the "liberty" protected by the Due Process Clause. Subsequent decisions in this realm grew to recognize numerous rights that the government was seen as having limited authority to restrict, such as the right to marry, the right to use contraceptives, the right to consensual sexual activity, the right to raise one's children as one wishes, the right to refuse medical care, and the right to decide whether to terminate a pregnancy.
My difficulty with the Court's due process precedent has nothing to do with the recognition of these fundamental rights. In general, I find these cases persuasive in establishing that such interests fall into the category of "none of the government's damn business," and are sufficiently fundamental to the "realm of personal liberty" to warrant constitutional protection. The problem is the stubborn insistence on cramming these natural rights into the ramshackle dwelling of "substantive due process." None of the Supreme Court's precedents meaningfully reconciled the "substance" and the "process," or even acknowledged that "substantive due process" reflects a contradiction in terms and a clash of conflicting principles.
I am unable to comprehend how the quintessentially procedural right to "due process of law" manages to house all of the "substantive" guarantees attributed to it, alongside its intuitive "procedural" protections, coupled with a protection from arbitrary, irrational, or vague laws, all while separately serving as the Court's chosen vehicle for the Fourteenth Amendment's incorporation of (most of) the Bill of Rights against the States. More to the point here, as I discuss below in Part II, because the Court's current explication of the federal constitutional oversight of punitive damages blends attributes of these various categories of due process, I struggle to make sense of it within the broader framework. The problem may be that the breadth of this jurisprudence has stretched the Due Process Clause well beyond what its text can plausibly support.
That said, the Supreme Court's attitude toward the requirements of "due process of law" clearly is not immutable. I suspect that due process has continued to wear its substantive hat for this long primarily out of fidelity to precedent and regard for public reliance upon that precedent. But the hat is threadbare. Stare decisis notwithstanding, the Court has never shied away from periodic alterations to the doctrine, from reconceptions of the nature of unenumerated rights, to the seismic shift represented by the demise of the Lochner era, to Dobbs. None of the Supreme Court's pronouncements were (or are) received at Mount Sinai on stone tablets. The Supreme Court recently has demonstrated its willingness to reconsider longstanding precedent in the realm of substantive due process. As the Court says, "stare decisis is not a straitjacket."
For the sake of the future of American civil rights, the time has come for advocates to develop and advance arguments—even in the alternative—that substantive, yet unenumerated, protections emanate not from the Due Process Clause, but rather from what was always their proper home in the Ninth Amendment, the Privileges or Immunities Clause, or both.
[B.] The Ninth Amendment
The most obvious constitutional source for the recognition of unenumerated rights is the provision that expressly refers to their existence. Its language is straightforward. Immediately following the specific enumeration of particular rights in the first eight Amendments to the Constitution, the Ninth provides:
["]The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.["]
Thumbing through the pages of the United States Reporter, however, one could be forgiven for failing to notice that the Ninth Amendment even exists. Effectively ignored by the Supreme Court for generations, the Ninth Amendment has long served more as fodder for scholars than as any meaningful mandate.
Although the meaning of this provision has engendered debate, the reason for its existence is well-documented. At the nation's founding, the "Anti-Federalists" advocated for the inclusion of a Bill of Rights within the Constitution, along the lines of the Declarations of Rights found in numerous state constitutions, such as Pennsylvania's. Opponents of this idea, the "Federalists," feared that no document could comprehensively list all fundamental rights, and that enumerating some might imply that the federal government possessed the power to infringe others not so enumerated. After all, the belief in the existence of fundamental rights as a matter of natural law independent of any governing charter was a fixture of the American polity from its founding moment, celebrated by the Declaration of Independence's stirring recognition of the "self-evident" truth that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights."
James Madison—the principal drafter of the Constitution—proposed a solution to the stalemate. The Ninth Amendment unambiguously rejects the notion that the Bill of Rights represents the beginning and the end of fundamental rights. It simply makes clear that the first eight Amendments are not an exclusive list. They were just the rights, in Madison's words, that were "singled out."
Since its ratification, the Ninth Amendment has played effectively no role in constitutional adjudication….
[C.] The Privileges or Immunities Clause
Whereas the Ninth Amendment jurisprudence is a virtual tabula rasa, the Privileges or Immunities Clause precedent is more closely akin to a sawed-off tree branch….
On its face, the Privileges or Immunities Clause appears to be rather significant, especially coupled with the understanding that "privileges" and "immunities" were merely synonyms for "rights." However, shortly after the Fourteenth Amendment's ratification, in the Slaughter-House Cases, the Supreme Court rendered the Clause an essentially dead letter….
In recent decades, Justice Clarence Thomas has developed a compelling historical argument for a broader reading of the Privileges or Immunities Clause, noting that Slaughter-House "sapped the Clause of any meaning," and opining that the case was a cause of much "disarray" in Fourteenth Amendment jurisprudence. Concurring in McDonald, Justice Thomas conducted a detailed analysis of the historical background and original meaning of the Privileges or Immunities Clause, concluding that the "evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution," and that "the Clause establishes a minimum baseline of federal rights." …
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