Notre Dame Law Review Volume 95 Issue 5 Article 5 6-19-2020 A Workable Substantive Due Process Timothy M. Tymkovich Chief Judge, United States Court of Appeals for the Tenth Circuit Joshua Dos Santos Juris Doctor, Stanford Law School; Law Clerk to the Hon. Timothy M. Tymkovich; Law Clerk to the Hon. Raymond Kethledge Joshua J. Craddock Affiliated Scholar with the James Wilson Institute on National Rights and the Americanounding; F Juris Doctor, Harvard Law School; Law Clerk to the Hon. Timothy M. Tymkovich Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Courts Commons, and the Fourteenth Amendment Commons Recommended Citation 95 Notre Dame L. Rev. 1961 (2020). This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\95-5\NDL505.txt unknown Seq: 1 10-JUN-20 15:08 A WORKABLE SUBSTANTIVE DUE PROCESS Hon. Timothy M. Tymkovich, Joshua Dos Santos & Joshua J. Craddock* INTRODUCTION .................................................. 1962 R I. A BRIEF HISTORY OF “DUE PROCESS” UP TO THE FOURTEENTH AMENDMENT ............................................. 1965 R II. THE MANY FACES OF “DUE PROCESS” IN THE TWENTIETH CENTURY ................................................. 1972 R A. What Process Is Due, Anyway? .......................... 1973 R B. Liberty 2.0 ............................................ 1977 R C. When Officials Do Heinous Things ...................... 1980 R D. Other Kinds of Due Process ............................. 1982 R III. CONFUSION .............................................. 1985 R A. Which Due Process? .................................... 1985 R B. Which Substantive Due Process? ......................... 1989 R C. What Kind of Right?................................... 1993 R 1. Fundamental or Not? ............................ 1993 R 2. Solitary Silos ..................................... 1997 R 3. Distinguishing Genuine Rights ................... 1998 R IV. SOLUTIONS ............................................... 1998 R A. Creating A Due Process Flowchart ....................... 1999 R B. Clearly Established Unenumerated Rights ................. 2004 R CONCLUSION .................................................... 2010 R © 2020 Timothy M. Tymkovich, Joshua Dos Santos & Joshua J. Craddock. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Hon. Timothy M. Tymkovich, Chief Judge of the United States Court of Appeals for the Tenth Circuit. I gratefully acknowledge the assistance of Walter H Hawes IV, Law Clerk to the Hon. Timothy M. Tymkovich (2019). Joshua Dos Santos, Juris Doctor, Stanford Law School (2017); Law Clerk to the Hon. Timothy M. Tymkovich (2017); Law Clerk to the Hon. Raymond Kethledge (2018). Joshua J. Craddock, Affiliated Scholar with the James Wilson Institute on National Rights and the American Founding; Juris Doctor, Harvard Law School (2018); Law Clerk to the Hon. Timothy M. Tymkovich (2018). 1961 \\jciprod01\productn\N\NDL\95-5\NDL505.txt unknown Seq: 2 10-JUN-20 15:08 1962 notre dame law review [vol. 95:5 INTRODUCTION It is now cliche´ to say that substantive due process is controversial. Yet it remains true that few legal doctrines have been more contentious in the last century or so in American law. It is also true, and not coincidentally, that this area of law is not just one of the most contentious, but one of the most con- fused. This Article seeks not to add to the controversy, but to explain the mire, and to propose a path across it. The controversy stems from the judiciary’s interpretation of a brief, but apparently capacious, phrase in the Fourteenth Amendment: “due process of law.”1 Much has been said: the phrase’s original meaning is obvious;2 its meaning is impossibly vague;3 it merely addressed historical ills;4 its very text denounces any substantive component;5 its text connotes a substantive 1 U.S. CONST. amend. XIV, § 1. 2 See, e.g., Gerard V. Bradley, The Bill of Rights and Originalism, 1992 U. ILL. L. REV. 417, 434 (The Due Process Clause “yield[s] [a] manageable, discrete meaning[ ] upon historical investigation.”); James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 CONST. COMMENT. 315, 320–21 (1999). 3 See, e.g., LEARNED HAND, THE BILL OF RIGHTS 30 (1958) (observing that the Due Process Clauses are written “in such sweeping terms that their history does not elucidate their contents”); Lawrence Rosenthal, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . and Parking Tickets, 60 OKLA. L. REV. 1, 52 (2007) (describing “the original meaning of the Due Process Clauses” as “indeterminate”); Arthur E. Sutherland, Privacy in Connecticut, 64 MICH. L. REV. 283, 286 (1965) (“[N]o one knows precisely what the words ‘due process of law’ meant to the draftsmen of the fifth amendment, and no one knows what these words meant to the draftsmen of the four- teenth amendment.”). 4 See, e.g., Nathan Schlueter & Robert H. Bork, Constitutional Persons: An Exchange on Abortion, FIRST THINGS (Jan. 2003), https://www.firstthings.com/article/2003/01/002-con- stitutional-persons-an-exchange-on-abortion (statements of Robert H. Bork). 5 See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 812 (2010) (Thomas, J., concur- ring) (“But any serious argument over the scope of the Due Process Clause must acknowl- edge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.”); United States v. Carlton, 512 U.S. 26, 40 (1994) (Scalia, J., concurring in the judgment) (“I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process.”); Gosnell v. City of Troy, 59 F.3d 654, 657 (7th Cir. 1995) (Easterbrook, J., for the court) (describing substantive due process as “an oxymoron” and procedural due process as “a redundancy”); JOHN HART ELY, DEMOC- RACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 18 (1980) (calling substantive due pro- cess “a contradiction in terms—sort of like ‘green pastel redness’”); Antonin Scalia, Address at the Woodrow Wilson International Center for Scholars: Constitutional Interpre- tation the Old Fashioned Way (Mar. 14, 2005) (“Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny.”). \\jciprod01\productn\N\NDL\95-5\NDL505.txt unknown Seq: 3 10-JUN-20 15:08 2020] a w orkable substantive due process 1963 requirement of justice;6 it incorporates cherished limits on the federal gov- ernment and applies them to states;7 it incorporates nothing.8 This back and forth has surely had its benefits; it has caused us to think more deeply about the role of the courts in our constitutional republic. And it has caused us to reevaluate our belief in democracy—to reaffirm our belief in its virtues and necessity. But one thing, we can all agree, has not been positive: the resulting con- fusion about how courts are supposed to evaluate substantive due process claims. Battles often blur boundary lines. This battle is no different. No sooner is one line drawn in the sand when its opponents’ counteroffensive wipes it out—or, worst of all, wipes it out incompletely. To put things plainly, the controversial nature of substantive due process doctrine has made the Supreme Court’s due process caselaw unclear. A case might establish a prin- ciple, but soon afterward that principle will be disavowed, nodded to without compliance, or simply ignored. The Court’s caselaw is, therefore, contradic- tory, imprecise, and sometimes impossible to understand. The inferior courts are left surveying the battlefield with little to guide them. The problem goes deeper, however. Perhaps more problematically, dif- ferent kinds of cases bearing the banner of substantive due process have developed separately, with no semblance of connection or doctrinal equiva- lence. In part, this stems from imprecise language. But it also has much to do with courts’ natural tendency to resolve the cases before them without identifying the relationship between the case at hand and the wider world of substantive due process. The results are siloed strands of substantive due process caselaw, along with a hodgepodge of warring quotations and maxims with uncertain authority. All this leaves courts adrift. It is not just that substantive due process doctrine is messy. It is that judges often don’t know what to do with a newly asserted claim of substantive due process. Should they use one of the existing frameworks for substantive due process? More than one? If just one, which? Or maybe they should come up with a new test, as many cases seem to have done? There are no clear answers to these questions. Courts are not likely to get the answers from litigants. In substantive due process cases, plaintiffs often allege they’ve been wronged grievously. At this, judges raise their eyebrows: “That sounds pretty bad,” they think, “but what’s the law here?” The briefs don’t help much because plaintiffs often brief all 6 See, e.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1333 (3d ed. 2000) (“[T]here is a reasonable historical argument that, by 1868, a recognized meaning of the qualifying phrase ‘of law’ was substantive.”). 7 See Duncan v. Louisiana, 391 U.S. 145, 147–48 (1968) (“In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increas- ingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.”).