While researching for a prior blog post a couple weeks back, I had a chance to review the Supreme Court’s decision in Obergefell v. Hodges. Last year, renowned legal scholar Professor Scott Gerber who has spent significant time providing commentary on Supreme Court Justice Clarence Thomas’ jurisprudence spoke at our St. John’s Federalist Society Chapter to reflect on Justice Thomas’ legacy. He suggested at the event that I read Justice Thomas’ dissent in that case to gain insight into his substantive due process jurisprudence and I am glad I had the opportunity to do so.
This week we will cover some modern commentary on substantive due process and analyze Justice Thomas’ dissent in this case that was rooted in a critique of substantive due process. We will then briefly explain the similarities it has with the late great Judge Robert Bork’s view on this doctrine.
As discussed above, Justice Thomas provided sharp critical commentary of substantive due process in his dissent. He stated:
“It distorts the constitutional text, which guarantees only whatever ‘process’ is ‘due’ before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here—’roa[m] at large in the constitutional field’ guided only by their personal views’ as to the ‘fundamental rights’ protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992). By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.”
When evaluating due process cases, Justice Thomas first looks to if there is a deprivation of life, liberty, or property. This is the most important part of the analysis because there must be something that the government is taking or denying without first undertaking fair procedures to validate its decision. This is the part of the analysis where Justice Thomas acknowledges that the door opens for activist adjudication. He warns that a great distortion of the due process clause is relied upon here to support the invention of fundamental rights. He is critical of the legal reasoning which claims that not recognizing this previously unenumerated “right” would violate the due process clause. However, due process should not apply if the right does not exist as a matter of Constitutional law. It is a doctrine with weak foundations. Due process protections should not be invoked to protect “rights” that do not hold a firm Constitutional basis.
The substantive due process example from this dissent concerns the issue of marriage as a Constitutional right and is one of the best modern examples, however there are many more that have plagued the Supreme Court for generations dating back to the infamous Dred Scott case when persons were classified as property, thus invoking due process. Just as persons should not have been considered property under the clause, neither should marriage be considered under the liberty provision.
For example, states have traditionally been the issuers of marriage licenses and state legislatures had individually defined what constituted the definition of marriage under their state policies. Some chose a limited view to heterosexual unions and others a more expansive definition, thus opening the definition to same-sex unions and requiring the issuance of the licenses to those couples. In both cases, heterosexual and same-sex marriage were not issues of Constitutional law as the Constitution remained silent on expanding the liberty provision to include this marriage right.
As Justice Thomas so eloquently explains later in his dissent:
“Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of ‘substantive’ or ‘procedural’ due process—a party must first identify a deprivation of ‘life, liberty, or property.’ The majority claims these state laws deprive petitioners of ‘liberty’, but the concept of ‘liberty’ it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.
He then invokes William Blackstone as a strong basis for historical support for this position:
“As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.”
Judge Robert Bork provides a similar perspective to Justice Thomas in his book, The Tempting of America. He reasoned that the due process clause was “simply a requirement that the substance of law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be.” This position reflects Justice Thomas in the sense of warning about constructing substantive rights without a supportive Constitutional basis and taking given provisions out of context to satisfy an unconstitutional end.
In our substantive due process reflections, whether we agree or disagree with the perspective put forth by Justice Thomas and Judge Bork we should consider the nature of due process. Understanding the background of this important clause and its historical context as it has evolved through the generations in law will make us better informed on the law and Constitutionalist principles.
 135 S. Ct. 2584 (2015).
 Robert Bork, The tempting of America: The Political Seduction of the Law 32 (1991).