Will, judgment, and economic liberty: Mr. Justice Souter and the mistranslation of the Due Process Clause.

• Author: Meese, Alan
• Position: Fidelity, Economic Liberty, and 1937

Among other things, the Fourteenth Amendment forbids the deprivation of "liberty" without "due process of law."(1) To many, the Due Process Clause means what it says, that is, it merely requires states to follow certain procedures before depriving someone of liberty.(2) Others, however, maintain that the clause has a "substantive" component that limits the authority of the state over certain rights, even if fair procedures have been employed to abridge them.(3)

Of course, a conclusion that the Due Process Clause provides substantive protection for certain liberties begs two important questions: which liberties, and how much protection? The logical place to begin, it might seem, would be with the meaning attached to the Due Process Clause when the Fourteenth Amendment was written and ratified. An investigation of that meaning, many have argued, would reveal that the Framers and Ratifiers believed that the phrase "liberty" referred to the right to contract and the right to pursue an occupation--rights that were subject to abridgement only in certain narrow circumstances.(4) Still, for decades, the Supreme Court has refused to offer even the slightest protection for liberty of contract and liberty of occupation under the aegis of the Due Process Clause.(5) Similarly, many influential scholars embrace the distinction drawn by modern constitutional doctrine between economic liberties and so-called personal rights.(6) Predictably, this bifurcation between economic and other rights has led to the charge that the Supreme Court and the scholars who endorse this bifurcation have invoked substantive due process selectively, in furtherance of value choices not discernible from the Constitution.(7)

For those few scholars who subscribe to the theory of "constitutional moments," this charge is easy to rebut. As they see things, the Due Process Clause was effectively amended in 1937.(8) This amendment did not take the form required by Article V. Instead, "The People," after significant mobilization and political deliberation, rejected the protection accorded economic liberties in substantive due process decisions such as Adkins v. Children's Hospital(9) and Lochner v. New York.(10) The Supreme Court confirmed this amendment, it is said, in West Coast Hotel Co. v. Parrish(11) and United States v. Carolene Products Co.,(12) in which the Court abandoned aggressive protection for liberty of contract and liberty of occupation respectively.(13) Thus, even if decisions such as Lochner and Adkins were faithful renderings of the Fourteenth Amendment's original meaning, these scholars say, the events of 1937 superseded that meaning.(14) Because this purported "amendment" did not repudiate substantive due process as such, nothing about it was inconsistent with recognition of non-economic liberties,(15) such as the so-called right of privacy announced in Griswold v. Connecticut(16) and applied in subsequent decisions, such as Roe v. Wade.(17)

Many scholars have rejected the theory of constitutional moments.(18) Moreover, while scholars can speak of constitutional moments, judges cannot. Whatever their true interpretive theories, our legal culture ensures that judges at least purport to explain their decisions as faithful interpretations of our written Constitution, a document that does not always include the "amendments" produced by constitutional moments.(19) In so doing, they must rely upon the traditional sources of meaning: text, structure, and history.(20) They must appear to exercise judgment, rather than will, implementing decisions not their own.(21) Because the purported Constitutional Moment of 1937 did not produce any changes in constitutional text, we would not expect judges to explain the repudiation of Lochner and Adkins by invoking the "amendment" of 1937. Moreover, scholars wishing to influence judicial doctrine must provide an account of 1937 that is consistent with common conceptions about the judicial role.

Still, without relying upon any theory of constitutional moments, the Supreme Court has invoked substantive due process to protect certain personal rights, while at the same time abjuring any protection for economic liberties.(22) Similarly, many scholars endorse the judicial bifurcation between economic and other liberties without embracing the theory of constitutional moments.(23) Without the figleaf of a constitutional moment, scholars and jurists who support the current dichotomy between economic and other rights must offer some other explanation for their selective invocation of substantive due process. They must explain why some forms of liberty, such as privacy, find shelter in the Constitution, while other forms, such as the right to pursue an occupation, may be trammeled by the legislature at will. The absence of such an explanation, 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.

Some scholars and jurists have risen to this challenge, attempting to justify the bifurcation between economic and other liberties without relying upon the purported occurrence of a constitutional moment. What has emerged is a dominant account of, and justification for, the bifurcation between economic and other liberties. This account does not question the Framers' commitment to economic liberty, including liberty of contract and liberty of occupation. Instead, it asserts that the repudiation of Lochner in particular and economic liberty in general can be described as a faithful application or "translation" of the Fourteenth Amendment's original principles in light of changed conditions that characterize the modern economy.(24) Thus, even if Lochner and its progeny were correct when decided, it is argued, the Court properly jettisoned these decisions in 1937, when changes in economic conditions called into question the factual premises on which the protection of economic liberty had rested.(25)

Perhaps the most complete judicial justification of the bifurcation between economic and other rights can be found in two relatively recent opinions authored by Justice Souter: Planned Parenthood v. Casey,(26) and Washington v. Glucksberg.(27) Taken together, these opinions mount a comprehensive defense of the enterprise of substantive due process, while at the same time insisting that economic liberties should receive no protection under the Due Process Clause.(28) In mounting this defense, Justice Souter did not question the commitment of the Framers to economic liberty. Nor did he claim that 1937 had produced a de facto amendment of the Due Process Clause. Instead, he argued that changed economic circumstances had justified--indeed, required--the Court to abandon liberty of contract and liberty of occupation in 1937. Thus, he concluded, the distinction between economic and other liberties that characterizes the modern incarnation of "substantive due process" is the product of a "reasoned judgment," faithful to the principles that originally animated the Due Process Clause.(29)

This Article offers a critique of the dominant account of the judicial bifurcation between economic and other liberties. In so doing, this Article focuses on Justice Souter's opinions in Glucksberg and Casey, opinions that provide a convenient vehicle for understanding and examining the dominant account. These opinions suggest or adumbrate several bases for "translating" the Due Process Clause in a manner that explains and justifies the Supreme Court's refusal to protect economic liberty. This Article examines these translations, each of which has been articulated and refined by various scholars, and finds them insufficient to justify the repudiation of liberty of contract. Some of these translations depend upon false assertions about the economic consequences of industrialization.(30) Others depend upon a threshold misunderstanding of the principles that necessarily inform any constitutional protection for liberty of contract.(31) Far from applying the principle behind liberty of contract in light of new circumstances, the various translations examined here repudiate that principle altogether.

Moreover, even when taken on their own terms, none of the translations suggested by Justice Souter and others justifies the modern bifurcation between economic and other liberties. More precisely, even if one or more of these translations provides a persuasive justification for abandoning liberty of contract, none of them even purports to justify the wholesale abdication of the Court's obligation to protect other economic liberties, in particular, liberty of occupation. Instead, at the most, each translation supports only the abandonment of those decisions voiding regulation of wages and, perhaps, other incidents of the employment relationship. While Justice Souter and others who subscribe to the dominant account are to be commended for attempting to justify the refusal to protect economic liberties, these attempts ultimately fall short. If the Due Process Clause contains a substantive component, the dominant account does not provide a valid explanation for the differential treatment of economic rights and so-called personal rights, such as the right of privacy. Absent some new explanation for the refusal of courts to protect "liberty" consistently, scholars and others will be forced to conclude that judges are not capable of implementing substantive due process in a principled fashion or, in the alternative, that 1937 produced a constitutional amendment after all.

1. CASEY AND GLUCKSBERG AS EXAMPLES OF THE MODERN POSITION

   As suggested above, the dominant account of the modern bifurcation between economic and other liberties rests upon several assumptions. First, it rejects the assertion that "process means process"--that is, the Due Process Clause...