The meming of substantive due process.

• Author: Greene, Jamal

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process--whether judicial, administrative, or legislative--that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. This Essay explores the intellectual and social history of the substantive-due-process-as-contradiction meme and argues that it is often appropriate for judges to rely upon such memes even if their underlying claims lack analytic integrity. Judicial opinion writing in constitutional cases is best understood as an act of translation between the decisional process of the judge and the representations necessary to validate the decision within the constitutional culture.

INTRODUCTION

Substantive due process is not a contradiction in terms. (1) Indeed, it is redundant. No inquiry into the propriety of some process--its "due"-ness--is or can be indifferent to the substance of the associated loss. Due process contemplates a rule of reason that calibrates the relation between, on one hand, the nature and scope of a deprivation and, on the other, the process that attends it. (2) For some deprivations, a simple majority vote in the legislature and the signature of the executive is sufficient process; for others, more, even a constitutional amendment, may be required. It would beg the question to pronounce, tout court, that any particular legislative process is always constitutionally adequate. It would turn the word "due" into surplus. (3)

It has somehow become common ground across the ideological spectrum that a textual analysis of this sort fails. (4) These days, the most damning charge against substantive due process is not that it gets the history wrong or that it unduly empowers judges, both of which might be accurate, but rather that it abuses the English language, which is not. Part of this Essay's project, then, is to shift the terrain on which the battle over the Due Process Clause is waged. Standing alone, the constitutional text supports substantive due process because the word substantive, to repeat, is redundant. Part I makes this case. It argues that neither "substantive" nor "procedural" due process holds superior title to the phrase "due process of law" or, at the least, that staring at the Constitution contributes nothing to the argument. (5)

It would be valuable enough to stop there. For as central as the Due Process Clause has been to constitutional law over the last century, the inconsistency of Griswold v. Connecticut (6) and its progeny with the constitutional text is no longer contested. (7) As time has passed, the weight of stare decisis has crowded out any affirmative textual argument in favor of "substantive" due process. The Court itself said three decades ago in a unanimous opinion that substantive due process is not suggested by the Constitution's language and indeed "is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments." (8) This concession tends to stunt the growth of the doctrine and places supporters of particular constitutional rights--especially to sexual and reproductive autonomy--unnecessarily on the defensive. It also poses a dilemma for teachers of constitutional law, who must indoctrinate into students a textual difference between "substantive" and "procedural" due process that disappears on reflection.

As Part II explains, it was not always thus. Substantive due process was a phrase seldom used in constitutional law until at least the 1960s, and its prominence rose dramatically in the 1980s when legal conservatives (and some liberals) began to lampoon it as a textual anomaly. It was not, as some would have it, a careless Warren Court innovation, repurposed from the Gilded Age and exposed for its absurdity after the rise of textualism. In fact, from the dawn of the Fourteenth Amendment up until the Warren Court, invocations of due process were frequently what we would now call "substantive" due process, and attacks on the doctrine were not usually based on the Constitution's text, which is too vague to contradict much of anything. The term substantive due process was part of the rhetorical process that made Lochner v. New York an anticanonical precedent, one that is repeatedly and (nearly) universally cited as an example of badly misguided constitutional decision making. (9) Lochner's anticanonicity came about in the 1970s and flourished in the 1980s as part of the case against sexual privacy and abortion rights. Substantive due process was a phrase largely created by its enemies and attributed to its supporters in a strategic assault on particular Court decisions.

Part III sorts out the implications of this story for the role of analytic integrity in the formation of constitutional arguments. Whether or not substantive due process is logically a contradiction in terms, its status as an oxymoron has become what I call a constitutional meme. A meme is a cultural element--a word, an idea, a set of assumptions--whose growth and evolution are sometimes said to mimic genetic transmission. (10) A constitutional meme is one passed among and through generations of lawyers, scholars, and judges as the conventional wisdom of constitutional law. The wrongness of Lochner, the unamendability of the Constitution via Article V, the tiers of scrutiny framework, and the textual absurdity of substantive due process each exemplifies a constitutional meme. Each is an idea, a cluster of information, so deeply embedded that it is often stated without further proof or elaboration and resists counterargument. (11)

Constitutional memes are vital to constitutional law. We can understand constitutional law as a set of resources for making constitutional arguments. Those resources fall within a limited number of domains--the text, historical materials, precedents, prudential arguments, and so forth. Close cases arise when advocates for divergent positions both have substantial resources to draw upon within these domains. Constitutional doctrine does not depend on which set of resources provides correct answers in some metaphysical sense; it depends on who successfully persuades judges and other legal officials who enjoy decisionmaking authority. Invoking constitutional memes can help to persuade decision-makers by narrowing the ground of argument in ways that are favorable to one's position.

Judges operate subject to ethical obligations extending beyond the need to persuade decision-makers, and that may temper their resort to memes that are rhetorically useful but false. But the epistemological structure of constitutional law does not permit constitutional judges to ignore altogether the demands of persuasion. They must, in effect, translate their decisions into a language susceptible to validation by the public that constitutional law ultimately serves. The act of translation can place a judge in the uncomfortable but unavoidable space between legal fictions and lies. (12)

I

Substantive due process is often defined but rarely with precision. John Hart Ely's quip that substantive due process is a contradiction in terms--"sort of like 'green pastel redness'" (13)--is as famous as anything ever said in a constitutional law monograph, but the ubiquity of the quip should raise suspicion as to its analytic clarity. (14) Ely describes his target as the view that the Due Process Clause "incorporates] a general mandate to review the substantive merits of legislative and other governmental action." (15) Justice Scalia, the most prominent modern critic of the doctrine, writes:

By its inescapable terms, [the Due Process Clause] guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require--notably, a validly enacted law and a fair trial. To say otherwise is to abandon textualism, and to render democratically adopted texts mere springboards for judicial lawmaking. (16) In the same vein, Robert Bork insists that the Due Process Clause "is simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case [and] says nothing whatever about what the substance of the law must be." (17) Laurence Tribe writes that the text of the provision "suggests a guarantee that, whatever the substance of the rules of conduct government promulgates, those rules may not be brought to bear on any person so as to deprive that person of life, liberty, or property without fair procedures--such as a hearing before a neutral decisionmaker." (18) Richard Posner has called substantive due process a "durable oxymoron" whereunder "persons harmed by state regulation [may] complain that the regulation is so unreasonable a deprivation of life, liberty, or property that it is unconstitutional even if adopted and applied in conformity with the most rigorous procedural safeguards." (17)

An example may help to diagnose the inadequacy of these formulations as criticisms of substantive due process. The Court's recent, controversial expansion of the Due Process Clause to condemn prohibitions on same-sex marriage supplies a ready hypothetical. Let us turn back the clock to the day before the Court's decision in Obergefell v. Hodges. (20) Suppose a county registrar refuses to issue a marriage license solely on the ground that the two people who wish to marry are both men. In this particular state, the state constitution defines marriage as the union of a man and...