Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause

Among other things, the Fourteenth Amendment forbids the deprivation of "liberty" without "due process of law."(1) To many, the Due Process Clause means what it says, that is, it merely requires states to follow certain procedures before depriving someone of liberty.(2) Others, however, maintain that the clause has a "substantive" component that limits the authority of the state over certain rights, even if fair procedures have been employed to abridge them.(3) Of course, a conclusion that the Due Process Clause provides substantive protection for certain liberties begs two important questions: which liberties, and how much protection? The logical place to begin, it might seem, would be with the meaning attached to the Due Process Clause when the Fourteenth Amendment was written and ratified. An investigation of that meaning, many have argued, would reveal that the Framers and Ratifiers believed that the phrase "liberty" referred to the right to contract and the right to pursue an occupation--rights that were subject to abridgement only in certain narrow circumstances.(4) Still, for decades, the Supreme Court has refused to offer even the slightest protection for liberty of contract and liberty of occupation under the aegis of the Due Process Clause.(5) Similarly, many influential scholars embrace the distinction drawn by modern constitutional doctrine between economic liberties and so-called personal rights.(6) Predictably, this bifurcation between economic and other rights has led to the charge that the Supreme Court and the scholars who endorse this bifurcation have invoked substantive due process selectively, in furtherance of value choices not discernible from the Constitution.(7) For those few scholars who subscribe to the theory of "constitutional moments," this charge is easy to rebut. As they see things, the Due Process Clause was effectively amended in 1937.(8) This amendment did not take the form required by Article V. Instead, "The People," after significant mobilization and political deliberation, rejected the protection accorded economic liberties in substantive due process decisions such as Adkins v. Children's Hospital(9) and Lochner v. New York.(10) The Supreme Court confirmed this amendment, it is said, in West Coast Hotel Co. v. Parrish(11) and United States v. Carolene Products Co.,(12) in which the Court abandoned aggressive protection for liberty of contract and liberty of occupation respectively.(13) Thus, even if decisions such as Lochner and Adkins were faithful renderings of the Fourteenth Amendment's original meaning, these scholars say, the events of 1937 superseded that meaning.(14) Because this purported "amendment" did not repudiate substantive due process as such, nothing about it was inconsistent with recognition of non-economic liberties,(15) such as the so-called right of privacy announced in Griswold v. Connecticut(16) and applied in subsequent decisions, such as Roe v. Wade.(17) Many scholars have rejected the theory of constitutional moments.(18) Moreover, while scholars can speak of constitutional moments, judges cannot. Whatever their true interpretive theories, our legal culture ensures that judges at least purport to explain their decisions as faithful interpretations of our written Constitution, a document that does not always include the "amendments" produced by constitutional moments.(19) In so doing, they must rely upon the traditional sources of meaning: text, structure, and history.(20) They must appear to exercise judgment, rather than will, implementing decisions not their own.(21) Because the purported Constitutional Moment of 1937 did not produce any changes in constitutional text, we would not expect judges to explain the repudiation of Lochner and Adkins by invoking the "amendment" of 1937. Moreover, scholars wishing to influence judicial doctrine must provide an account of 1937 that is consistent with common conceptions about the judicial role. …