A few quick thoughts on the substantive due process debate thus far:
- Much of the discussion to this point seems to be focusing on what can best be called matters of institutional politics: What sorts of issues are judges fit to decide? That is a conceptually separate question from the correct understanding of the meaning of the Constitution. For all I know, it might very well be unwise for judges to try to decide real-world cases in accordance with the Constitution, on the ground that they are likely to do it badly and cause great harm in the process, so that the “best” theory of constitutional adjudication may well relegate the actual Constitution to a secondary, or even minimal, role in the adjudicative process. That is certainly an apt description of modern practice. I have no professional scholarly opinion on that point, which is within the domain of political and moral theory rather than law and therefore beyond any expertise that I can plausibly (or implausibly) assert. I am interested only in figuring out what the Constitution actually means; what anybody does with that meaning once they have it is not my concern.
- Timothy Sandefur’s response essays point out that one cannot really discuss the meaning of any part of the Constitution – to the extent that the meaning of the Constitution is really the issue (see above) –without first clarifying how that meaning is determined. That is a whole different conversation from the one that we were charged with having. I will say only that Sandefur’s attempt to decouple constitutional meaning from anyone’s intentions, like his more specific argument about substantive due process, is partly right and partly wrong. Communicative instruments such as the Constitution have meaning only in light of intentions – that is what makes them communicative instruments rather than the equivalent of goat entrails. The question is: Whose intentions? Real people’s intentions? In that case, you need to specify which real people count. Or imaginary people’s intentions? For reasons too complicated to explain in this dialogue, I think the answer is the latter: the Constitution’s meaning is determined by the hypothetical, legally constructed intentions of a hypothetical, legally constructed reasonable observer of 1788. Of course, as Professor Rosenthal aptly points out, there is a long tradition in the case law, and in American politics more broadly, that makes crystal clear that my hypothetical observer’s legally constructed views are “not the sole or even the most important interpretive conventions to be employed in constitutional interpretation.” But I am not trying to give a sociologically or historically accurate account of what various people have said (or are likely in the future to say) about the Constitution. I am just trying to figure out what the Constitution actually means. (And to answer Sandefur’s question: Yes, the historically real authors of a provision can be mistaken about its meaning in any circumstance in which meaning is determined by the intentions of someone else.)
- Professor Rosenthal also correctly points out that a non-arbitrariness principle, even if applicable to most actions by the federal government, will not necessarily yield all of the results that Sandefur (or I) think are prescribed by the Constitution, such as the unconstitutionality of a federal statute forbidding segregated rail cars. That is quite correct. The obligations of a fiduciary include non-arbitrariness, which I emphasized because Sandefur emphasized it, but also include a range of other obligations. Most notably, eighteenth-century fiduciaries were under a presumptive obligation to treat all principals fairly, which roughly corresponds to what today we call “equal protection.” So yes, I do believe that something resembling “federal equal protection” is validly part of the federal Constitution – not because of some weird reverse incorporation of the Fourteenth Amendment, but because the principle was part of the original Constitution as of June 21, 1788.
- I would still like to see Sandefur say more than he has thus far about the federal/state distinction. From a constitutional standpoint, does he think that state and local laws stand on the same footing as federal laws? For example, I assume that he believes (as do I) that the individual mandate to have health insurance in the Patient Protection and Affordable Care Act is unconstitutional. Does he also believe (as I do not) that the equivalent provision in Massachusetts is unconstitutional?