Samuel Francis (“A Perpetual Censor,” July 1993) carefully criticizes the dubious “substantive due process” doctrine. But he errs repeatedly in his facts and analysis, not least in counting me among the doctrine’s adherents.
Francis correctly criticizes judicial activism of the sort that creates constitutional rights out of thin air. But he ignores the even more pernicious judicial activism that reads rights out of the Constitution. Among these are the “privileges or immunities” of citizens protected by the 14th Amendment against abridgment by state government, a protection nullified by the Supreme Court in the 1872 Slaughterhouse Cases.
Foremost among these privileges or immunities was economic liberty, the basic right to pursue a business or trade. The 1872 challenge was not to the health or safety provisions of the Louisiana slaughterhouse law, but rather to the bribery-induced imposition of a monopoly that needlessly destroyed competitors’ livelihoods.
No one can seriously maintain that the ubiquitous restraints on economic liberty that are Slaughterhouse’s contemporary legacy are expressions of “community” desire. They are promoted by special-interest groups and enforced by unelected bureaucratic agencies—precisely the evils the 14th Amendment’s equal protection and due process clauses were designed to constrain.
For better or worse, the judiciary is the last refuge for individual rights against government tyranny. That the left has abused this forum is no argument against those who would restore the judiciary’s intended role as a primary bulwark for liberty.
Institute for Justice
Dr. Francis Replies:
Mr. Bolick conveniently neglects to specify any of the occasions on which I “err repeatedly in [my] facts and analysis.” I understand that it is Mr. Bolick’s opinion that the Slaughterhouse Cases of 1873 (not 1872, as he twice erroneously writes) nullified economic liberties and that it is his opinion that the 14th Amendment guarantees these liberties. But with all due respect to Mr. Bolick, contradicting his opinions does not necessarily constitute an error of fact or reasoning.
Mr. Bolick’s response strikes me as bizarre. The 5-4 decision in the Slaughterhouse Cases is conventionally held by legal historians to be a narrow rejection of the doctrine of substantive due process. Thus, Melvin Urofsky writes, “In 1873, the Supreme Court almost adopted substantive due process in the Slaughterhouse Cases,” and Loren P. Beth writes of Slaughterhouse that it was “the first ease seriously to introduce the idea that due process of law could be applied to the substance of laws rather than merely to legal procedures,” that had the minority in the case prevailed, their victory “would have made the [14th] Amendment a bill of rights against the states, enforceable by the national government, which is in effect what it has now become anyway.” It makes absolutely no sense for Mr. Bolick to deny that he is among the adherents of the doctrine of substantive due process and in the same breath advocate the reversal of Slaughterhouse for the same reasons that the minority on the Court dissented.
Mr. Bolick can’t have it both ways. He can’t say, in one paragraph of his letter, that he doesn’t agree with substantive due process and also say, in the next paragraph, that he thinks the 14th Amendment strikes down state and local legislation on the grounds of substantive due process. Nor can he condemn “judicial activism” if at the same time he supports the broad interpretation of the 14th Amendment that creates substantive due process and makes judicial activism possible (indeed, inevitable).
I will bow to Mr. Bolick’s expertise on why states and localities choose to enact certain laws. Unlike him, I am not prepared to second-guess the interests, needs, norms, and wishes of communities of which I am not a member, and also unlike him, I am not prepared to conscript the power of the federal government to impose my own preferences on these communities when their preferences conflict with mine. The point, however, is that despite the existence of imprudent or unjust local and state laws that restrain liberty, there are many legitimate, just, and prudent reasons why communities might wish to enact legislation that reflects local circumstances and conditions—for the protection of public health, morality, safety, etc.—and these may well circumscribe “economic liberties.” Again, unlike Mr. Bolick but more like the Framers and most Americans today, I do not subscribe to the notion that economic relationships determine political and cultural relationships or that they are the principal or sole criterion by which the public good should be measured.
Nor, finally, do I agree with Mr. Bolick that “the judiciary is the last refuge for individual rights against government tyranny.” The proper function of the courts is to protect, not “individual liberties,” but the rule of law, which is not always the same thing. The judiciary, Mr. Bolick might someday discover (most Americans to their rue have already done so), is part of the government and the least representative and responsive part of it. When the judiciary is empowered by ideologues to enforce their private obsessions, it is at least as great a danger to communities and persons, to law as well as liberty, as any other organ of the state.
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