Substantive Due Process, Black Swans, and Innovation

The United States Supreme Court in 2010 declined to set right what many view as an old and egregious constitutional wrong. The Privileges or Immunities Clause of the Fourteenth Amendment, eviscerated by the Court in The Slaughterhouse Cases, was left in its hollowed out condition. The Court in McDonald v. City of Chicago rejected arguments to use the clause as the textual anchor for the right to bear arms vis-à-vis state and local governments. Doing so would have paved the way to relocating many, if not most, of the “substantive due process” rights—the nonprocedural due process-based protections against deprivations of life, liberty, or property identified by the Court over time.

This would have restricted those rights to natural persons and citizens, and may have even opened the door to adding new rights to the Fourteenth Amendment. Fearing the consequences of such a dramatic departure from past practice, the Court instead left in place the considerable body of judge-made law that situates “unenumerated” rights within substantive due process—such as privacy and reproductive freedom—and “enumerated” rights incorporated into due process from the Bill of Rights.