It's not every day that progressive legal commentators side with Justice Antonin Scalia. But in the wake of the Supreme Court's decision concerning same-sex marriage, at least two have expressed views on an important legal doctrine that are quite similar to Scalia's. In his dissent in Obergefell v. Hodges (as in previous opinions), Scalia heaped scorn upon the notion that the "liberty" protected by the Fourteenth Amendment's Due Process of Law Clause consists in anything more than freedom from physical restraint or imprisonment. Although they have endorsed the outcome in Obergefell, pundit Ian Millhiser and scholar Andrew Koppelman have similarly disparaged so-called "substantive due process" -- the notion that the Due Process of Law Clause protects individual rights, including those not expressly listed in the Constitution's text, from being violated by the government, regardless of what procedures are employed to effect the violation.
I recently wrote that Scalia's contempt for substantive due process suggests that he is elevating his personal desire to cabin judicial discretion over consistent originalism. Millhiser and Koppelman, too, are concerned that substantive due process gives judges too much discretion to strike down laws. Millhiser evinces particular concern that it will empower judges to strike down legislation that he favors, principally economic legislation. But while the conception of liberty reflected in the Due Process of Law Clause may be more expansive than Millhiser and Koppelman feel comfortable with, it is written into the fabric of our organic law and is essential to limited government.
Before the term "substantive due process" was coined as a pejorative, there was only "due process of law." The concept of due process of law can be traced back to the "law of the land" clause in the Magna Carta. Members of the Founding generation understood it as a requirement that the government always act pursuant to a rational, public-oriented end, consistent with the equal rights of all. When the government instead acted arbitrarily, its actions were not considered law. Following the Civil War, state courts, and, later, the Supreme Court, used the Fourteenth Amendment's Due Process of Law Clause to safeguard both natural rights (rights individuals possess because they are rational, moral agents) and certain civil rights (rights that are necessary to protect individual freedom in political society). The Court drew no fundamental distinction between rights expressly listed in the Bill of Rights and textually unenumerated rights. Thus, in Meyer v. Nebraska (1923), the Court explained that liberty "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." In Meyer, it struck down a law prohibiting teaching foreign languages to children; in Pierce v. Society of Sisters (1925), it struck down a law outlawing private schools; in Lochner v. New York (1905), it struck down a law that prohibited New Yorkers from working in a bakery more than 10 hours per day or 60 hours in a week. All of these cases are examples of judicial engagement: The Court made a genuine, impartial effort in each case to determine whether the government's actions were constitutional, requiring the government to demonstrate a substantial evidentiary connection to a constitutionally legitimate end.
The first concerted criticism of substantive due process came from progressives, who elevated majority rule above individual rights and regarded the Court's insistence upon protecting rights as an impediment to social and economic experimentation. They rallied behind Justice Oliver Wendell Holmes' dissent in Lochner (which Chief Justice Roberts invoked no less than 16 times in his Obergefell dissent), in which Holmes contended that the Constitution "is made for people of fundamentally differing views" and accused the Court of "pervert[ing]" the term "liberty" in the Fourteenth Amendment by holding it "to prevent the natural outcome of a dominant opinion." Later, a New Deal Court that embraced the progressive critique of the "Lochner era" sought to offer meaningful protection for some individual rights without reviving Lochner. The solution: the elevation of textually enumerated rights and utter disregard for unenumerated rights, particularly economic rights.
But the theory of rights that drove Lochner would resurface. In Griswold v. Connecticut (1965), a case in which the Court struck down a Connecticut law prohibiting doctors from prescribing contraceptives, Justice William O. Douglas, writing for the majority, performed somersaults of constitutional interpretation to strike down the law without relying explicitly on the Fourteenth Amendment. Thus, he determined that the law infringed upon a "zone of privacy" created by the interaction between a nontextual right to privacy and several provisions of the Bill of Rights. Justice Hugo Black, in a vigorous dissent, accused Douglas (accurately) of relying upon "the same natural law due process philosophy found in Lochner v. New York," only without acknowledging it. Conservative legal icon Robert Bork would later agree, setting the tone for generations of conservative critics of the Warren Court's alleged "activism" when he condemned both Lochner and Griswold for their reliance on unenumerated rights.
After Griswold, the jurisprudential wall separating enumerated rights from unenumerated rights began to crumble. In Loving v. Virginia (1967), the Court held that the unenumerated "freedom of choice to marry" is protected by the Due Process of Law Clause, determining that is "one of the vital personal rights essential to the orderly pursuit of happiness." More recently, in Lawrence v. Texas (2003), the Court invalidated a criminal ban on same-sex intimacy, bringing "freedom of thought, belief, expression, and certain intimate conduct" under the heading of "liberty." Obergefell, like the preceding cases, saw the Court seeking to determine whether states had infringed upon freedom that, although not laid out in bullet-point form in the Constitution, nonetheless merited judicial protection -- and concluding that it did.
Koppelman, Millhiser, and Scalia are correct in one respect: The Court's substantive due process jurisprudence has developed in a haphazard way. And there is room for reasoned disagreement about particular decisions. But the idea that the government may not restrict our liberty -- be it the liberty to practice religion, guide the upbringing of our children, speak, use contraceptives, make and enforce contracts (including marriage contracts), or wear hats -- without offering a genuinely public-oriented, evidence-based explanation is enacted by the Fourteenth Amendment, even if Mr. Herbert Spencer's Social Statics is not. And consistent judicial engagement is required to secure it.