I'm very grateful for David Kopel's kind words, and I, in turn, am a great admirer of his work and of the Independence Institute. I'm glad to think I may have misunderstood his comment about the Supreme Court having not explained how "substantive due process" is derived from the Constitution. Yet I think I don't quite understand Kopel's explanation of his point. He writes,
yes, “due process of law,” in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of “due process of law,” summarized in Hurtardo, has very little to do with “the doctrine of substantive due process.” The former, text-based view, condemns special legislation; yet you can’t use the modern Supreme Court’s “doctrine of substantive due process” to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the “due process of law” principle of Hurtado.
This appears to be an attempt to distinguish the theory articulated in Loan Ass'n and Hurtado from "the doctrine of substantive due process." What's confusing is that these are, in fact, the same thing. It's true that certain modern accretions on substantive due process, such as "rational basis" certainly are wrong (lacking any foundation in the Constitution, the views of the framers, or any logical theory of law) but these aren't "the doctrine of substantive due process"--they're the theory of rational basis. Indeed, rational basis and deference to legislatures and the abandonment of natural rights--these things are the opposite of substantive due process; constructions by reactionaries against the protection of individual rights under the due process clause. The difference between modern due process cases and nineteenth century due process cases is that the modern cases are overly deferential.
Kopel writes that the distinction between substantive due process in the style of Hurtado, of which he approves, and "the doctrine if substantive due process" of which he doesn't approve is: "selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on." It is these that he says the Supreme Court has never even "attempt[ed]" to "derive" from the text.
But this is, again, not true. The concept of selective incorporation was thoroughly explained in many decisions--perhaps unconvincingly, but explained, nevertheless. Justices Frankfurter and Black strongly disagreed over the nature if incorporation and wrote about their disagreements in many opinions, which you can look up on Wikipedia. But clearer than these was the 1908 case Twining v. New Jersey, when the Court explained, echoing Hurtado, that some traditional legal practices are so deeply ingrained in the common law that for a defendant to be denied those practices would be essentially arbitrary, thus amounting to a violation of the due process of law requirement:
Is [the asserted right] a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government? If it is, and if it is of a nature that pertains to process of law, this court has declared it to be essential to due process of law.... [In] a free representative government nothing is more fundamental than the right of the people, through their appointed servants, to govern themselves in accordance with their own will, except so far as they have restrained themselves by constitutional limits specifically established, and that, in our peculiar dual form of government, nothing is more fundamental than the full power of the state to order its own affairs and govern its own people, except so far as the Federal Constitution, expressly or by fair implication, has withdrawn that power.... We are not invested with the jurisdiction to pass upon the expediency, wisdom, or justice of the laws of the states as declared by their courts, but only to determine their conformity with the Federal Constitution.... The question before us is the meaning of a constitutional provision which forbids the states to deny to any person due process of law. In the decision of this question we have the authority to take into account only those fundamental rights which are expressed in that provision; not the rights fundamental in citizenship, state or national, for they are secured otherwise; but the rights fundamental in due process, and therefore an essential part of it. We have to consider whether the right is so fundamental in due process that a refusal of the right is a denial of due process. One aid to the solution of the question is to inquire how the right was rated during the time when the meaning of due process was in a formative state, and before it was incorporated in American constitutional law. Did those who then were formulating and insisting upon the rights of the people entertain the view that the right was so fundamental that there could be no due process without it?
If you find this unconvincing, that's fine. But it's certainly an attempt at an explanation of selective incorporation. And I, for one, do find it convincing. The Fourteenth Amendment does not say every state must provide a jury of twelve for all criminal offenses, who must reach a unanimous verdict. Is that rule so central to the common law tradition that states are barred from changing it--allowing non-unanimous verdicts, for instance, or allowing plea bargaining? Would we regard such innovations as shockingly lawless? Probably not. Thus a unanimous-twelve jury isn't required from states under the language "nor shall any state deprive any person of life, liberty, or property, without due process of law." Due process bars arbitrary legislative actions. It doesn't explicitly refer to any particular right, the way the Second Amendment does. The Twining approach therefore does make sense: states may change certain legal boundaries without stepping over the line into arbitrariness.
It is also not true that the Supreme Court has failed to derive the protection of unenumerated rights from the text. But, again, the anachronistic term "substantive due process" misleads us. In Meyer, the Court was not actually talking about the "due process" clause--it was referring to a different word in the Fourteenth Amendment: "liberty." The Court said,
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v. Hopkins, 118 U.S. 356; Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children's Hospital, 261 U.S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.
Again, disagree with Meyer if you like, but this is plain vanilla substantive due process, very firmly rooted not only in reason and the nature of the thing, but also on a long string of precedent. The Court is saying here that the word "liberty" protects an undefinable range of freedom that includes the freedom to do certain things that are not specifically identified in the Constitution's language--which is, in fact, what the word liberty actually means, linguistically and as a matter of (centuries of) precedent.
I therefore must stand by my original statement. It is not true that the Supreme Court has never derived the doctrine of substantive due process--or substantive due process, if there is any possible distinction between these two things--from the Constitution's language; in fact, it has done so time and time and time again.
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