ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

In a recent post, I suggested that any SCOTUS nominee who supports the notion of "substantive due process" (SDP) should either be rejected, or should be closely questioned about all kinds of policy choices that the nominee might implement via SDP. Carol responded by writing a post in which she cautioned that Janice Rogers Brown (JRB) might support the notion of substantive due process, and therefore such nominees shouldn't be hastily ruled out.

Carol cited an August 12, 2000 speech by JRB. In that speech, she was discussing Lochner, and she argued that the doctrine of SDP that underlied Lochner cannot be dismissed without encountering two problems. The first problem pointed out by JRB is that SDP still exists, as a fundamental rights jurisprudence. And secondly, JRB pointed out that SDP allows even conservative judges to protect not just the letter but also the spirit of provisions designed to limit government. I agree with JRB that these are two problems that need to be squarely addressed. I do not believe that JRB was endorsing SDP.

Take a look at her Senate hearing in 2003:

Chairman Hatch. Okay. Now, let me just go back to the Lochner situation just for a minute, just so we make sure that the record is clear. In Santa Monica v. Super. Ct., you said for the record that ..... "The revolution of 1937 ended the era of economic substantive due process, but it did not dampen the court's penchant for rewriting the Constitution.'' So what I interpret that to mean is that you were not happy with the court's penchant to use substantive due process in Lochner any more than you are enamored with the court's penchant for using substantive due process thereafter.

Justice Brown. Well--

Chairman Hatch. You are not alone in that criticism.

Justice Brown. That is correct, and I think that would make
me very much in the mainstream. That's right down the middle.

Chairman Hatch. And there is no question about that.

So, whatever people might conclude about her 2000 speech, it's pretty clear that she was no proponent of SDP in 2003. But getting back to the two problems she mentioned in her 2000 speech, it's true that SDP is still used today to apply much of the Bill of Rights against the states, and the problem of protecting those rights without SDP can be easily solved by relying instead upon the Privileges or Immunities Clause of the 14th Amendment (as the framers intended).

The other problem that JRB mentioned in her 2000 speech is how to abandon SDP without jeopardizing the ability of judges to enforce not just the letter but also the spirit of the Constitution. Actually, the Constitution was almost rejected due to objections that judges would enforce the "spirit" instead of sticking to the letter. Here's Hamilton in Federalist 81, defending against that objection:

[T]here is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

The fear that judges would invoke the spirit of the Constitution was a major Anti-Federalist objection. It's impossible that the Anti-Federalists intended to give judges exactly that power when they demanded inclusion of the Due Process Clause in the Constitution.

Incidentally, in that 2000 speech, JRB also asserted that the colonists saw in the Due Process Clause a guarantee which had a "wide, varied, and indefinite content." But that's not quite right. Again, here's Hamilton: "The words 'due process' have a precise technical import....." The meaning of this term had been well-established by the courts of England. It meant the proceedings in a cause of action that are owed according to the law of the land. Of course, the "law of the land" could fluctuate as legislators enacted different statutes, but the meaning of the term "due process" was not ambiguous or indefinite.

UPDATE: Wikipedia has good background info about the history and meaning of the Due Process Clause.