All About Substantive Due Process
1Digest
This podcast episode delves into the intricate legal history of substantive due process and unenumerated rights, using a listener's question about the vulnerability of incorporation as a starting point. Hosts Sarah Isgur and David French trace the evolution of these concepts, from early Supreme Court cases like Dred Scott and the Slaughterhouse Cases, which significantly narrowed the Privileges or Immunities Clause of the 14th Amendment, to the Lochner era's focus on economic liberty and its subsequent criticism. They discuss how the Due Process Clause became the primary vehicle for protecting rights, leading to landmark cases like Griswold v. Connecticut and the ongoing debate about identifying and safeguarding unenumerated rights. The conversation also touches upon the potential impact of the Dobbs decision on Obergefell v. Hodges, the role of reliance interests, and the Respect for Marriage Act. Finally, the hosts briefly discuss contemporary political discourse and preview upcoming episodes.
Outlines
Introduction to Substantive Due Process and Unenumerated Rights
The podcast begins by introducing a listener's question about the constitutional basis for incorporation and substantive due process. Hosts Sarah Isgur and David French set the stage for a deep dive into the history of the Constitution and the Supreme Court's interpretation of rights, particularly unenumerated rights.
The Evolution of Substantive Due Process and the 14th Amendment
The discussion focuses on the listener's question regarding substantive due process and its application to corporations. This leads to an exploration of the 14th Amendment, contrasting the Due Process Clause with the Privileges or Immunities Clause. The historical context, including the Dred Scott decision and the impact of the Slaughterhouse Cases, is examined, explaining how the Privileges or Immunities Clause was diminished, leading to reliance on the Due Process Clause for protecting rights.
The Lochner Era and the Resurgence of Substantive Due Process
The podcast examines the Lochner era, characterized by the protection of economic liberties, and its eventual decline. The resurgence of substantive due process is then discussed through cases like Griswold v. Connecticut, highlighting the challenges in identifying and protecting unenumerated rights and the ongoing debate about the appropriate constitutional clause for such protections.
The Enduring Relevance of Legal Doctrines and Identifying Rights
David argues for the continued importance of legal doctrines like substantive due process, privileges or immunities, and equal protection in addressing fundamental questions about unenumerated rights. The hosts discuss methods for identifying these rights, such as "text, history, and tradition," and reference Judge Newsom's work on the Slaughterhouse cases and the Privileges or Immunities Clause.
Predictions and Contemporary Issues
The hosts offer predictions for the Kim Davis petition case, anticipating its denial but considering the possibility of a justice's statement. They then shift to discussing contemporary issues, including the "based ritual" in political discourse and criticism of Karine Jean-Pierre's use of identity politics. The episode concludes with a preview of future topics and a call for listener support.
Keywords
Substantive Due Process
A legal doctrine protecting fundamental rights from government interference, regardless of procedural fairness.
Privileges or Immunities Clause
A clause in the 14th Amendment intended to protect citizens' fundamental rights, though its scope has been narrowly interpreted.
Obergefell v. Hodges
Landmark Supreme Court case establishing the right to same-sex marriage nationwide.
Lochner Era
Period of Supreme Court history (c. 1905-1937) known for protecting economic liberties, now viewed critically.
Unenumerated Rights
Rights not explicitly listed in the Constitution but recognized as fundamental, often debated in constitutional law.
Slaughterhouse Cases
1873 Supreme Court decisions that significantly limited the Privileges or Immunities Clause of the 14th Amendment.
Incorporation Doctrine
The process by which the Supreme Court applies the Bill of Rights to the states, primarily through the 14th Amendment's Due Process Clause.
Griswold v. Connecticut
Supreme Court case that established a right to privacy, using the concept of "penumbras and emanations."
Text, History, and Tradition
A method used to identify fundamental rights by examining the Constitution's text, historical context, and established practices.
"Based Ritual" / Vice Signaling
A term describing the practice of signaling ideological purity through extreme statements within certain political groups.
Q&A
What is the difference between procedural and substantive due process?
Procedural due process ensures fair legal proceedings, while substantive due process protects fundamental rights from government infringement, questioning the government's right to interfere at all.
Why is the Privileges or Immunities Clause of the 14th Amendment often overlooked?
The Supreme Court's interpretation in the Slaughterhouse Cases severely limited its scope, leading to greater reliance on the Due Process Clause for protecting rights.
How did the Lochner era impact the understanding of substantive due process?
The Lochner era's protection of economic liberties was criticized, leading to a negative perception of substantive due process and a shift towards establishing tiers of scrutiny.
What is the significance of unenumerated rights in constitutional law?
Unenumerated rights are fundamental rights not explicitly listed in the Constitution. The Ninth Amendment acknowledges their existence, posing a challenge in their identification and protection.
How might the Respect for Marriage Act affect the legal standing of Obergefell v. Hodges?
While the Act provides statutory protection, legal experts suggest it doesn't eliminate the reliance interest on the constitutional ruling of Obergefell itself.
Show Notes
Sarah Isgur and David French walk listeners through the entire history of the Constitution, the Supreme Court, some of the biggest cases ... all prompted by one listener question. Plus: Grifter Sarah makes a reappearance.
The Agenda:
—Understanding substantive due process
—Supreme Court to consider whether to hear challenge to same-sex marriage on November 7
—Dred Scott v. Sandford being the worst decision ever
—Scaring our libertarian friends with Slaughter-House cases
—The dissent everyone knows was right
—Liberty to brutally oppress your workers
—‘Grown-ass men’ and their group chats
—The Based Ritual
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