Last summer, when the Supreme Court overturned Roe v. Wade (1973), Justice Clarence Thomas’s bold concurring opinion in Dobbs v. Jackson Women’s Health Organization showed once again that he is serious about saving American constitutional government from judicial overreach. But it understates Thomas’s ambition and intellectual seriousness to say that he is only concerned with reining in the Court. Unlike even his conservative peers, he wants to reform our national jurisprudence more fundamentally by dismantling the fiction of “substantive due process.” In this way, Thomas seeks to help stave off the moral nihilism that has infected American institutions since they were reconfigured by progressive ideologues in the mid-20th century. He seeks to situate constitutional reasoning in both inalienable rights and a deeper understanding of legal history—especially of the English constitutional tradition on which American notions of legality rest.
Justice Samuel Alito, by contrast, based his majority opinion in Dobbs on existing legal doctrine, ritually going through the motions of “substantive due process” analysis as established by the judiciary itself. Alito’s argument rested on the same kind of legal legerdemain that was used to create a “right” to abortion in the first place. In other words, he set out to determine whether the 14th Amendment’s reference to “liberty”—in the phrase “nor shall any State deprive any person of life, liberty, or property, without due process of law”—protects a substantive right to abortion. The Court suggested that the answer is “yes” 30 years ago in Planned Parenthood v. Casey (1992), which reaffirmed the essential holding of Roe. Alito raised the same question as Casey and simply answered in the negative. Thomas would like to reject the question altogether.
Alito’s decision invoked the “established method of substantive-due-process analysis.” This method is a judicial invention. It refers to the “substance” of what can and cannot be made illegal under the 14th Amendment. But the amendment itself only refers to the process of law that is “due” or necessary to make a deprivation of liberty legitimate. In other words, whereas the 14th Amendment only governs how states may enact or apply laws, “substantive due process” takes it to govern which laws states may enact. Under the substantive analysis, courts hold rights to be “fundamental” if they are rooted in the nation’s “history and tradition” and implicit in “ordered liberty.” After an extensive review of history and case law, Alito concluded for the Court “that the right to abortion is not deeply rooted in the Nation’s history and tradition.” The evidence is abundant: “when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.” A majority of states prohibited it even at the time of Roe. He was at pains to emphasize that this judgment “concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
In other words, under conventional substantive due process analysis, most of the Court’s conservatives share with its progressives the view that certain rights are essential to “liberty,” very broadly construed. A show of mere procedural fairness is not enough to justify constraining those rights, and laws that do so are not entitled to a presumption of validity. Members of the Court merely argue over which rights are fundamental. Liberals favor unenumerated rights like abortion and same-sex marriage; conservatives favor enumerated rights like gun ownership.
This does not sit well with Thomas. He joined the majority opinion because “[t]he Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause. Such a right is neither ‘deeply rooted in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty.’” But for Thomas, there is also “a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that ‘due process of law’ merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.”
Thomas’s crisp, compact prose conveys an understanding of legal history that has largely been lost in American jurisprudence. The 5th and 14th Amendments demand, respectively, that neither the federal nor state governments ignore due process of law when matters of life, liberty, or property are at stake. The meaning of these words was known long before they found their way into the U.S. Constitution. They were borrowed from the English legal tradition with which the framers were intimately familiar, and whose protections they sought to maintain in American law.
The Law of the Land
When King John met his Barons and assented to Magna Carta in 1215, he agreed that no free man shall be imprisoned or “in any way destroyed” other than by “the lawful judgment of his peers or by the law of the land.” As ancient as Magna Carta is, it merely served to remind the king of rights that were older than the document itself—in this case, to be free from the arbitrary judgments of royal caprice. Instead, kings must always act in accordance with the known “law of the land.” As the centuries wore on, the specific phrase “due process of law” made its way into English statutes in order to require a fair hearing according to this “law of the land.” It eventually became clear that such law was embodied not simply in English custom, royal prerogative, or courts of star chamber, but in the express will of Parliament. The “substance” of the law was what Parliament ordained. Due process involved treating people fairly, i.e., in accordance with the substantive law of the land, with clearly defined procedures in place to ensure proper notice and an opportunity for self-defense.
The founders understood well that the English legal system does not empower its judiciary to mint substantive rights not protected by Parliament, or by the deeply embedded English traditions that point to justice simply. Even procedural protections only apply in cases where there is a threat to the most important privileges of Englishmen: life, liberty, and property. William Blackstone made clear the extent of these protections, and what is contemplated by “liberty,” in his Commentaries on the Laws of England. First published in 1765, the Commentaries became an instant bestseller in America when republished in Philadelphia in the early 1770s. They became the touchstone for thinking about law and legal interpretation for virtually all major American political commentators, statesmen, and jurists from the founding era through the 19th century.
Blackstone noted that liberty consists in such things as “the power of locomotion…without imprisonment or restraint, unless by due course of law.” It’s thus fair to say the framers would not have recognized Justice Anthony Kennedy’s flowery assertion in Casey that the “liberty” protected by the 14th Amendment has to do with “choices central to personal dignity and autonomy,” including “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Such language represents the cartoonish culmination of substantive due process doctrine, which does not limit itself to ensuring that the known law of the land is brought to bear in a fair manner. Instead, it anoints courts as the final arbiters of which substantive rights exist. It leaves judges unbound by the text or inherent logic of the Constitution. They instead rely on standards that the courts themselves have created. They then refract those standards through the progressive intuitions shared by much of the American judiciary, not to mention American elites generally. Substantive due process has licensed and encouraged judges to concoct a plethora of new rights—including the right to abortion.
In cases that predate Dobbs, Thomas has gone out of his way to note that the fiction of “substantive” process “is a particularly dangerous one,” providing no “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not” (McDonald v. City of Chicago ). Furthermore, “because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is…unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions” (Timbs v. Indiana ).
The substantive due process doctrine insinuated itself into federal courts some seven decades after the Constitution was ratified, with Chief Justice Roger Taney’s infamous decision in Dred Scott v. Sandford (1857). The Court held slaves to be property and insisted that a congressional enactment abolishing slavery in certain areas of federal jurisdiction “could hardly be dignified with the name of due process of law.” It was, to say the least, a novel suggestion that the words “due process of law” could be used to strike down the substantive content of congressional legislation that was properly passed, generally applicable, and aimed prospectively at governing human conduct—or even, as in this case, at protecting the equal natural rights of human beings.
By the middle decades of the 20th century, progressive legal theorists and jurists had ensured that “substantive due process” would not be used to review economic regulation, which they tended to favor, or to protect property rights, which they tended to disfavor. Instead, it would be brought to bear on legislation that infringed non-economic rights if progressives considered them “fundamental,” despite their being mentioned nowhere in the Constitution. The consequences of this progressive cherry-picking include Griswold v. Connecticut (1965), Roe v. Wade (1973), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015), which respectively invented rights to privacy (specifically encompassing marital contraception), abortion, homosexual conduct, and same-sex marriage. Even though none of these things is mentioned or remotely implied by the Constitution, the Court happily substituted its moral sense of each for the outcomes of democratic deliberation which the Constitution contemplates.
Miscarriage of Justice
Thomas sees all this and more. For him, the phrase “due process of law” refers to…process. On its face, it does not and cannot define the substance of rights. Substantive due process is an “oxymoron” lacking “any basis in the Constitution.” This made the path to overturning Roe far more straightforward for Thomas than for Alito: as he wrote in his concurrence, “Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion” (emphasis in the original). The Court in Dobbs thus missed a golden opportunity to do away with substantive due process, root and branch: in future cases, “we should eliminate it from our jurisprudence at the earliest opportunity.” And so, unlike Alito, Thomas is more than willing to “cast doubt on precedents that do not concern abortion.”
Thomas justified this willingness by identifying three corrosive effects of substantive due process. First, it “exalts judges at the expense of the People from whom they derive their authority.” Determining which rights are “fundamental” inevitably involves policymaking rather than legal analysis. The Court discovers new rights that align with “its own, extraconstitutional value preferences.” The shifting rationales for the right to abortion furnish a case in point. The right is purportedly based in a conception of “personal liberty,” which first included a “right of privacy” in Roe, then, less than 20 years later in Casey, a “right to define one’s own concept of existence,” then finally, according to the arguments in Dobbs, rights to “bodily integrity,” “personal autonomy,” and “equal citizenship.” This meandering list indicates to Thomas that “[t]he right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”
Second, substantive due process effectively produces a gravitational field that bends constitutional light and reason. Once the Court identifies a right as “fundamental,” it sets itself on a search-and-destroy mission against statutes that infringe that right. For example, relying on Griswold, the Court quickly invalidated a state statute limiting distribution of contraceptives to married couples. As the Court pursues its own policy objectives, the people are prevented—on a variety of ever-shifting grounds—from pursuing theirs. In addition, any rights that have not by judicial fiat been deemed “fundamental” receive short shrift. That some rights are more equal than others is perhaps not a surprise, but what rightly galls Thomas is the arbitrariness of the distinctions: “Substantive due process is the core inspiration for many of the Court’s constitutionally unmoored policy judgments.”
Finally, substantive due process causes monumental and irreparable harm, thus bringing the Court and justice itself into disrepute. Thomas has been fearless in drawing comparisons between the reasoning of Dred Scott, which protected slavery from political challenge, and that of Roe, which protected some 63 million abortions from political challenge. In his Dobbs concurrence he concluded that “[t]he harm caused by this Court’s forays into substantive due process remains immeasurable.” If the Court is to regain lost legitimacy, turning away from substantive due process is as good a place as any to start.
But whither rights in the face of such a judicial revolution? Thomas has an answer. If there is an American “law of the land” that transcends the enactments of any legislature and might be protected by courts, it is most clearly revealed and best supported by the Privileges and Immunities Clause of the 14th Amendment. This clause reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the 19th century, the Supreme Court constricted the meaning of those words to a few relatively unimportant matters. Thomas maintains that this was a grave error. Properly interpreted, the clause supports a robust understanding of the rights or immunities that people have by nature and longstanding convention, beyond the reach of government.
Thomas’s thinking on the scope and utility of this approach was evident in the Second Amendment case McDonald v. Chicago (2010). The majority opinion, in which Thomas ultimately concurred, ground its way through the substantive due process mill, finding the right to possess a firearm “fundamental” and “deeply rooted” in American history and tradition. But while Thomas agrees the right is fundamental, he “cannot agree that it is enforceable against the States through a clause that speaks only to ‘process.’” The idea that process can define substance “strains credulity for even the most casual user of words.”
Instead, Thomas bases his concurring opinion entirely on the Privileges and Immunities Clause, which he says protects constitutionally enumerated rights, including the right to keep and bear arms. There are bedrock privileges of American citizenship that cannot be interfered with by the states unless the reasons for interference are subjected to the highest level of scrutiny. For Thomas, this clause, enacted after the Civil War, “On its face appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.” He also makes clear that a privileges and immunities jurisprudence would help bring us back to the idea of inalienable rights—some of which are revealed in “our country’s English roots,” including those enumerated in Magna Carta, the Petition of Right, and the English Bill of Rights. “These rights included many that later would be set forth in our Federal Bill of Rights, such as the right to petition for redress of grievances, the right to a jury trial, and the right…to ‘have arms for their defence’.”
Thomas’s concurrence has triggered considerable palpitations among progressives, especially due to its suggestion that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” With the overturning of Roe, the most sacred cow in the Left’s temple is now slain—surely every subordinate god is also at risk? President Biden, in characteristic style, fretted over “[t]he right to make the best decisions for your health. The right to use birth control. A married couple in the privacy of their bedroom, for God’s sake. The right to marry the person you love…. This is an extreme and dangerous path the court is now taking us on.”
Thus, in addition to its other virtues, Thomas’s decision has laid bare the Left’s terror that the people, free from arbitrary judicial constraints, might choose a path other than the one progressive elites have ordained. But this hyperventilating is surely overblown. Media outlets were quick to suggest Thomas’s reasoning could be used to overturn Loving v. Virginia (1967), which deemed laws against interracial marriage unconstitutional. Legal experts ranging from comedienne Whoopi Goldberg to former Labor secretary Robert Reich piled on, suggesting Thomas’s own marriage could be in jeopardy.
But the decision in Loving was based primarily on the Equal Protection Clause of the 14th Amendment, which stands on its own feet and is untouched by Thomas’s reasoning. Furthermore, after singling out cases for reconsideration, Thomas suggests that the Court should explore whether other constitutional provisions, especially the Privileges or Immunities Clause, might “guarantee the myriad rights that our substantive due process cases have generated.” The right of a man and a woman to marry, rooted as it is in nature, has been inherent in every civilization of which we have record. It was certainly assumed by the laws of England and America long before the Constitution or its amendments were ratified. It can easily be understood as a clearly established privilege or immunity of citizenship. But the insistence that it is threatened, absent an explicit Supreme Court holding, illustrates the extent of progressives’ attachment to the Court as the ultimate government power and final antidote to all society’s ills.
Blackstone long ago reminded the heirs to the English legal tradition that “law, without equity, tho’ hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” Clarence Thomas cautions us not to indulge a jurisprudential dogma that has, in effect, given American courts an unlimited equitable jurisdiction to do as they please, leaving “the decision of every question entirely in the breast of the judge.”
It remains to be seen whether Thomas will prove a trendsetter for constitutional restoration, or merely a voice crying in the wilderness. If there is to be support for his jurisprudential revolution, it will not likely be found in the immediate sentiments of his colleagues. It will instead grow incrementally, from the realization of the Court’s declining legitimacy. Several current Justices, Thomas included, have openly raised this concern: if the Supreme Court does not reform itself, it must be reformed from without.