Substantive due process
I find in Wikipedia’s article on “due process” that the United States Supreme Court in Snyder v. Massachusetts (1934) held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
The above would seem to be a good definition of “substantive due process,” which basically means that any legislative act or judicial holding that we think violates someone’s rights is a violation of due process. Thus if we believe that a law outlawing certain private sexual behaviors “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (even though such laws existed in all the states up to recent years), then that law violates due process. But this makes a hopeless mishmash out of the words “due process,” which simply mean that a legislature in passing a law or a court in reaching a decision follows its normal and proper procedures under the law. Now, if a legislature or court deprives a person of some liberty that you think should never be infringed, regardless of the procedure by which the person is deprived of that liberty, then say so. But don’t destroy the objective meaning of words—and thus the very basis of law and liberty—by calling this supposed injustice a failure of “due process.”
A further problem is that due process properly understood only refers to decisions and holdings by a court, not to acts of a legislature. So there seems to be two principal ways in which the concept of due process has been distorted: (1) due process is changed to substantive due process, which means that certain types of deprivations of liberty and property simply can’t be enacted no matter how proper the process is; and (2) due process is used in reference to legislative acts, to declare a legislative act illegitimate because it fails “due process.” There are legitimate ways for a court to overturn the act of a legislature; claiming a lack of due process in the legislative act is not one of them.
Here is a brief, understandable explanation of substantive due process. Here is a list of 23 Supreme Court decisions that invoked substantive due process. Many of them involve laws governing sexual behavior and abortion: Loving v. Virginia, Griswold v. Connecticut, Doe v. Bolton, Roe v. Wade, Bowers v. Hardwick, Planned Parenthood v. Casey, and Lawrence v. Texas.
A final note: When the U.S. Supreme Court in 1857 held that Dred Scott could never be freed under any law, since that would be taking away Scott’s owner’s property rights in him without due process, that was correctly seen as an outrage against the Constitution, law, and logic. Yet today, a major part of the power of the federal courts over our society is based on the same illegitimate concept of substantive due process, and there’s not a peep of protest.
A reader recommends David Bernstein’s article at the Volokh site defending substantive due process against its critics and tracing its origins to Dred Scott, and a brief overview of due process by Nick Szabo. I notice that Bernstein says that Bork’s Tempting of America has misinformed the critics of substantive due process. That would apply to me since I was influenced by Bork. I look forward to reading Bernstein’s article.