Advisory Opinions - All About Substantive Due Process

Episode Date: October 30, 2025

Sarah Isgur and David French walk listeners through the entire history of the Constitution, the Supreme Court, some of the biggest cases ... all prompted by one listener question. Plus: Grifter Sarah makes a reappearance. The Agenda:—Understanding substantive due process—Supreme Court to consider whether to hear challenge to same-sex marriage on November 7—Dred Scott v. Sandford being the worst decision ever—Scaring our libertarian friends with Slaughter-House cases—The dissent everyone knows was right—Liberty to brutally oppress your workers—‘Grown-ass men’ and their group chats—The Based Ritual Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we're going to dedicate basically an entire episode to one listener question. It's going to walk us through the entire history of the Constitution, the Supreme Court, some of the biggest cases that every even non-lawyer, who at least listens to this podcast, will be familiar with, all of it. And then at the end, we might bring back Grifter, Sarah, for just a few minutes.

She's been so lonely out there. All this and more on advisory opinions. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing? blue booking, tables, appendix assembly, bait stamping? Or would you rather focus on your argument? Type law can take your draft and exhibits and transform them into a court-ready, rule-compliant, e-brief, and appendix overnight.

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lift, flow, and go. Explore the new Peloton cross-training tread plus at OnePeloton.ca. All right, David, I've been saving this question for the podcast. because it is not a tack-on at the end. We'll give it a quick answer question. Let me read it to you. Can you guys destroy the best steelman of incorporation through substantive due process soon? I remember in law school reading the due process clause

and not understanding why people hated substantive due process so much. Quote, nor shall any state deprive any person of life, liberty, or property without due process of law. Isn't substantive due process just defining what life, liberty, and property interests are. The low-hanging fruits are enumerated rights, but we know that there are life liberty and property interests that are not enumerated. So maybe there are some other rights the courts can read in. Granted, I think the unenumerated rights part is a problem, but it seems like a lot of folks act like unenumerated rights combined with the corporation through the due process

clause is stupid. I have felt embarrassed that I don't really get this point ever since. What should I read to understand why my question is dumb? Oh, your question's not dumb. dumb. That's the problem. I mean, substantive due process is, you know, the term that launched a thousand law review articles. Literally, endless law review articles, David. Too many for us to have even read to prepare for this pod. There's a lot baked in here. And look, this is also newsy. David, tell us why. Yeah, it's newsy because there is a Kim Davis petition up to the Supreme Court of the United States asking the Supreme Court to reverse Obergefell. And Kim Davis, for those who don't remember, is the Kentucky clerk of court, I believe, who was responsible for, or county clerk who was refusing to sign same-sex marriage certificates or, you know, enshrined same-sex marriage in law and received, you know, obviously was subject of federal lawsuit, huge controversy in the before times.

So this goes back to really before the Trump presidency. So, but there has been, there have been efforts really ever since Obergefell to overturn Obergefell. I think the reversal of Roe gave some folks a sense that Obergefell might be vulnerable, and Obergefell is the same-sex marriage case. And this case is going up to conference on November 7th. Now, there has been a lot of coverage of the possibility that Obergefell might fall. And Sarah, I'm very curious about your thoughts, but I feel like the coverage, far outstrips the possibility that Obergefell might fall. I don't think the court is going to take

this case. I would literally fall out of my chair in shock if the court took this case, that if it didn't deny cert would absolutely stun me. So I don't think that it's actually going to end up being a national conversation here coming up. But absolutely positively, there are a lot of people are very interested in this right now. I've gotten a lot of messages and notes asking for media appearances to talk about this. So it's an important issue. And November 7th is going to be an important day, although I think it's going to be an anticlimactic day. Okay. Let me, let me steal man the argument that Obergefell is on the rocks. Because I don't think it's dumb, right? I think people have been worked up by reading media reports that

maybe, like you said, David, are blowing this way out of proportion compared to its probability. But people aren't dumb. Okay. So here's the Steelman version. One, Kim Davis files this appeal to the Supreme Court after losing below. And we all said, this is the dumbest thing. They're not touching Obergefell. Everyone calmed down. And a day later, the court asked for a response from the other party. It's not that that's unusual, but it means that they didn't think it was such an insane cert petition that they were just going to deny it out of hand, just to like go through a little bit of process here. When one party files a surpetition, the other party can file a response that usually says, don't take this case. But if you want to do like a super baller mic drop move,

you wave your response, meaning I don't even have to like Dane to acknowledge this because it's obviously so stupid on its face. So that's what the other side did in the Kim Davis case. And then the court was like, no, no, deign to respond. Dane yourselves. So that alone, I think, was worth some news stories about, certainly. Now let's get to the substance of Obergefell. Obergafel is going to be sort of the last substantive due process case. Justice Kennedy, the notorious swing vote, if you will, is going to write the majority in that, and it leads, of course, to the famous footnote from Justice Scalia. So Justice Scalia's in dissent. It's a five-four decision. Justice Kennedy writes the most Justice Kennedy-esque opinion ever. While this is not in the

opinion, it launches the phrase, love is love is love. Because that's sort of the vibe of the opinion. Here's the Scalia footnote. If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began, quote, the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons within a lawful realm to define and express their identity, end quote. I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph's story to the mystical aphorisms of the fortune cookie. Worth noting, by the way, the price to be paid for a fifth vote has always stuck out to me because I don't think people think enough about how these

opinions get put together. On the one hand, the justice who's assigned the majority opinion, of course, you know, writes it. They're usually not line edited or anything by the other justices. It's not like they all sit in a room and think about what's the best word for this adverb right here. On the other hand, you know, someone's like, I'll be happy to join that opinion if you take out X or if you add in this thought. And so that's what Justice Scalia means by like, I'm sure Justice Scalia is referencing some time when he wrote some opinion and, you know, it was a five-four case and the person he needed as the fifth vote was like, I'd like to add in something that Justice Scalia clearly thought was a name, but added in so that he could maintain the majority. Fun fact, about 10% of

cases, the last time academics ran this, 10% of cases, change. change from the time of the vote at conference after oral argument to when the opinion comes out, meaning the majority becomes the dissent. That's a much higher number than I would have thought. I would also guess that that number has gone down in the modern era. This is a pretty old stat because we have to rely on the justices notes from when they leave the court and allow their notes to become public and all of that. But nevertheless, 10% at any point, kind of high. Don't you think, David? Yeah, absolutely. And another point to steal man, to steal man, the idea that we should be paying attention to substantive due process right on the eve of this of this vote is that the Dobbs case did not affirm Obergefell. It didn't overturn Obergefell. It just said, we're not touching Obergefell. We're not dealing. This does not, this isn't relevant to Obergefell. And so if people are saying that Dobbs cast doubt on Obergefell, well, no. But if people are saying Dobbs affirmed Obergefell, well, no, it just left Obergefell completely alone.

And Obergefell, as we stated earlier, was rooted in sort of this substantive due process notion. And the reason why, you know, just to back up a bit, from the beginning, from the Bill of Rights, we have known that there are unenumerated rights, just to back up. because the Bill of Rights itself says that there are unenumerated rights. The Ninth Amendment says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. That is very clearly saying there's other rights out there that it very helpfully does not spell out. It can't. That's the point if it spells them out.

Then they wouldn't be unenumerated. I know. Because if you go back into the historical controversy, part of the objection to the Bill of Rights was this idea that there's more rights than you can list. If you're going to create a list of rights, you're going to by necessity exclude some. There's going to be some that you will miss. And if you don't list them, you'll violate them. And so the compromise was we're going to list some key rights, but we're going to say this is not the exclusive list. So we're going to leave it to the political process, leave it to the judiciary, leave it, just leave. it to the people to determine those rights and how they're protected. And so ever since then, ever since that moment, there are really sort of two big questions. One, what are the unenumerated rights? And number two, how do we recognize and protect them? How do we know them when we see them? And so that's why when we talk substitute view process is the name for the legal doctrine that we have used to recognize and protect these unenumerated rights.

kind of. Okay, one more thing on Obergefell, because we've talked about it before you and I, David, when we were sort of brushing aside Obergefell concerns, which is the reliance interest. So one of the things you look at when deciding whether a previous case that you believe was wrongly decided, nevertheless should be upheld, is whether people have come to rely on that decision. And I got an interesting email from someone that basically was like, yeah, I get that the reliance interest in theory could be greater for Obergefeld than, say, Roe and Casey. You know, if you're only pregnant for nine months, it's a pretty short reliance compared to you got married, had children. Even with that grandfathered in, one can imagine, you know,

you're a gay person who moves to a different state to go to college, believing that you could meet someone at college and get married to them, that's a reliance interest of itself. But Congress recently passed the Respect for Marriage Act, which basically, basically says that one state's marriage, gay or otherwise, has to be respected and acknowledged in any other state. So doesn't that solve the problem if Obergefell got overturned? There's no reliance interest and therefore Obergefell can be overturned because there's no reliance interest. David, this gets to a very, very weird part of stare decisis factors reliance interest that I haven't actually seen anyone right about. Maybe they have and I've missed it. So apologies,

if you're the Law Review article that I missed. I believe that the reliance interest is on the court's constitutional ruling, not on the current state of the law, because the court doesn't control what Congress does. So if reliance is a factor, it has to be on the court's decision as the stare decisis factor,

not Congress or state majorities. If the court said no reliance because of a congressionally, you know, past statute, and then the next Congress amends the law, the precedent doesn't come back. so the reliance interest can't work that way, even though the respect for marriage act is supposed to fill that gap, I don't think it can change the reliance interest factor for Obergefell itself. Did that make sense? Yeah, I think that not only makes sense, I think that has to be plainly correct. If you have established that there is a constitutional right to same-sex marriage, saying that that is buttressed by a statutory right to such an extent that it replaces the reliance on the constitutional. right? I think you're right. I don't think that can, I don't think that you can eliminate the

reliance interest by having a belt and suspenders extra statute given how ephemeral statutes can be compared to constitutional rights. So I think, I think the way you're saying it is not just clear, but clearly correct. Okay, given that, there's one other news hook for why we're about to go into the history of substantive due process. And that's because every time we talk about the 14th Amendment, I say privileges and immunities clause and we get 50,000 emails correcting me. And I respond to each one explaining to them, I basically have a mental block on being able to say privileges or immunities clause when it comes to the 14th Amendment. So this is my apology because for this podcast, just for you guys, I'm going to get it right. The Fifth Amendment is privileges and

immunities. And the 14th Amendment is privileges or immunities. And we'll maybe even go into a little bit of why it's and or or. It's sentence structure, you guys. It's not even that relevant. Okay, whatever. I'm tired of getting the emails because they're right and it hurts my feelings because I know they're right. So the first question we have to answer as we walk through substantive due process from Slaughterhouse to Lochner to Griswold to Obergefell. First thing we have to do, David, is decide whether substantive due process actually starts with dread scott the worst decision ever you know think of it after the big bang you have this constitution and there's all these words in there and you're trying to find doctrines right so there's no such thing as anything like there's no tears of scrutiny

there's no substantive due process we're trying to figure out what to do when a right hasn't been listed in the bill of rights in this case the right to own other people in you know the territories and like Congress has passed some laws on that. What are we the Supreme Court supposed to do? Little fun side note on Dred Scott, by the way. Chief Justice Tawny apparently refused to even allow the other justices in the majority to see the decision before he issued it. Like I've never heard of such a thing. Another fun fact is that Justice Benjamin Curtis, who was one of the dissenters, resigned from the court after Dred Scott. He is the only Supreme Court justice ever to have resigned as a matter of principle and to relate this to current moment, his portrait is hanging in Justice Gorsuch's chambers

right now. Seems fitting, right? Justice Gorsuch are Yolo Justice. I don't care about the consequences. You're just supposed to have principles and follow those principles like Justice Curtis as his North Star. That makes sense. Okay. Remember the Dred Scott isn't just a bad decision because it's like morally repugnant. It's also a bad decision legally because it was incorrect. legally and decided like endlessly more things than they needed to decide to decide the case. They could have just said, Dred Scott, as a black man living in the United States of African descent, isn't a citizen and therefore doesn't have standing to sue. Still repugnant, by the way, but that could have been the end of it and probably wouldn't

have made the civil war more significantly more likely. Okay, so here's what they decide. A, for the government to deprive a person of slave property under a statute that exceeds Congress's lawmaking authority would be a deprivation of property without due process of law. B, Congress has no constitutional authority to ban slavery in the Western Territories, which is what it attempted to do, resulting in depriving Mr. Sanford of his property. Therefore, taking away Mr. Sanford's personal property, meaning property in a other human being, deprive him of property without due process of law.

Okay, so let me read you the text for a second so that you can decide whether this is the beginning of substantive due process or not, because it's not going to literally use the term substantive due process. These powers and others in relation to rights of persons which it is not necessary here to enumerate are inexpress in positive terms denied to the general government, meaning the federal government, and the rights of private property have been guarded with equal care. Thus, the rights of property are united with the rights of person and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person shall be deprived

of life, liberty, and property without due process of law, and an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law. So David, let's do some rubber meets the road here on, I think, the point you want to get at, which is it's life, liberty, or property without due process of law. So this is, like, we all know what procedural due process is. Did you follow the process? Was there a jury? Substantive due process is this idea that there are some things you can't do, even if you did

follow the process. So, like, what do you mean Congress can't do that? they voted on it in the House and in the Senate. It was signed by the president. That is the process. And all it says is that you can't deprive someone of life, liberty, and property without the process. Well, we followed the process. We passed a law. You can argue the law was unconstitutional, but that's not really what he's arguing here. He's saying that Congress can't deprive someone of slave property with any process because that itself violates this like other due process? There is an onion peeling aspect of this because obviously on its face it says you can't be deprived of life, liberty, or property without due process of law. Then the question is,

what are the liberties that cannot be deprived, okay, without procedural due process, without some sort of process. Well, obviously those liberties could be are enumerated in the Bill of Rights, but then there's unenumerated liberties. Now, you could, in an interesting way, you could identify a substantive liberty interest and then state that there is a procedural due process right against its deprivation. But that's not exactly what substantive due process is quite. Because what substantive due process does is sort of say it's going to identify the liberty interest and protect it to a certain degree, regardless of process. Yeah, so this is where we almost have to break substantive due process into two buckets.

The one bucket is what I think would make sense, literally the word substantive due process. That's what you're describing, David. An unenumerated right, the substance of which is protected by due process. But that's not what anyone means if you run into a lawyer who is talking about substantive due process. They're talking about sort of skipping over the process part and just saying there are certain things that the government can't, certain unenumerated rights that regardless of process, the government can't infringe upon. Okay, let's leave Dred Scott for a second, because I want to move forward to the slaughterhouse cases. This is where our libertarian friends

are shrieking, rending their clothes. That's what our libertarian friends do, when they hear the term slaughterhouse cases. We'll be right back. I was recently talking to some of my mom friends about life insurance. We were thinking about our loved ones and what would happen if we weren't here. Life insurance gives me the confidence and peace of mind that they'd be financially secure.

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business. So join the more than 400,000 Canadian entrepreneurs who already count on us, and contact Desjardin today. We'd love to talk, business. Okie-dokey, David. It's time for the slaughterhouse cases. The Louisiana legislature in the city of New Orleans, established a corporation to deal with the regulation of slaughterhouses because New Orleans smelled terrible. It was really, really gross because there were slaughterhouses everywhere and that was disgusting. Members of the Butchers Benevolent Association challenged the constitutionality of this legislatively created corporation's monopoly, claiming it violated the 14th Amendment. Right. So Dred Scott, No 14th Amendment. Dred Scott literally is why we have a 14th Amendment because instead of overturning

Dred Scott, they supersede it, if you will, by constitutional amendment. Okay. So they're going to challenge the monopoly under the 14th Amendment. The argument is the amendment protected the butcher's rights to sustain their lives through labor. So this is an economic liberty argument. This is why our libertarian friends love it so much. We have really broken. down the 14th Amendment, like word by word on this podcast, I feel like, based on just current news this year. So I'm just going to read from the top here of Section 1 of the 14th Amendment so you can see how short this is and yet how many of our cases come down to this. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the

United States and of the state wherein they reside. That's the birthright citizenship clause that we're arguing about. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. That's the slaughterhouse cases. And you've never heard about privileges or immunities because the Supreme Court is about to kill it dead in 1873. And then we're going to have Justice Thomas and kind of Justice Gorsuch saying, come back. Come back. Privileges and immunities. Okay. And then the last, we'll continue after the semicolon in section one of the 14th Amendment, nor shall any state deprive any person of life, liberty, or property without due process of law. so same as the Fifth Amendment, but now it applies to states, nor deny to any person within its

jurisdiction the equal protection of the laws. So in two sentences, we get birthright citizenship, privileges or immunities, due process clause, and equal protection clause. This is going to incorporate the Bill of Rights against all the states. This is going to create substantive due process in Griswold and Roe and Obergefell. It's going to be all of our Voting Rights Act cases. It's going to be the Civil Rights Act and all the employment discrimination cases. It's going to be our transgender identity. All of those cases. I mean, it's all right there, David, but we never talk about privileges or immunities. And it would be fair to ask why, because it seems, first of all, privileges and immunities comes first. No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States. So there are certain rights that have by being Americans that states can't mess with. Doesn't that sound like unenumerated rights? So what the heck are we doing going to the second clause, nor shall any state deprive any person of life, liberty, or property without due process of law? If you were a non-lawyer reading that, you would think the due process thing was more about, yeah, trial rights, you have to follow your real legislative process. You can't sort of like suspend the laws and like do whatever, whatever, arrest people without probable cause. That's due process. Privileges or immunities comes before that. It is paramount, but it's not because of the slaughterhouse cases. These were close. They were

five, four decision in which the majority basically says privileges or immunities isn't a real thing and we're not doing it anymore. Justice Field in dissent, who was a heck of a dude, the only justice ever arrested for murder that I'm aware of. In fairness, someone tried to assassinate him. We also have this great piece up at SCOTUS blog by our famous dissenting colleague, Anastasia Bowden, where she writes up the dissent in the slaughterhouse cases, and the title's great. The dissent everyone knows was right. And here's some of her on Justice Field.

So Field, for what it's worth, is this Western guy, you know, the Gold Rush era of California. He's appointed to the court by Abraham Lincoln, which is going to be relevant for our privileges or immunities clause and just sort of respect for the 14th Amendment probably. He was also said to have commissioned a custom coat with big enough pockets to conceal pistols for shooting his enemies. Don't we all need that coat? He survived the ostensible assassination attempt when he was attacked on circuit duty in California by another judge with a grudge. His bodyguard shot the assailant, after believing him to be reaching for a knife. That's the NRAe Nagle case. Field goes on to serve another eight years resisting his colleagues pleased to retire based on

his declining mental state. But he wanted to stay until he had surpassed former Chief Justice Marshall's record of 34 years. So good on him. He wrote more than 544 opinions for the court more than anyone before him other than his colleague Samuel Miller. He left his deepest mark in dissent. In Slaughterhouse, she writes, he thundered that the majority got the 14th Amendment exactly backward. Field agreed with the majority that the states can pass health and safety regulations, but they cannot, he argued, use public health as a pretense to encroach upon any of the just rights of the citizen. Here, the government safety rationale was a mask for economic favoritism, and if permitted to establish this quarter century monopoly for slaughterhouses,

it would equally grant a monopoly over any kind of business to a single individual in perpetuity, thereby eviscerating economic freedom. So, David, let's spend a few moments on the Privileges and Immunities Clause. I get it. That's the Fifth Amendment. Privileges or Immunities Clause in the 14th Amendment. Because part of the question is, A, do you think they got it wrong? B, how do you think the law would be different if we had a robust privileges or immunities

clause in the 14th Amendment? Because the fact that we don't is what's going to give rise to Lochner, you know, 50 years later. So let's do some privileges or immunities talk. Yeah. So this was interesting because, well, interestingly wrong, because what the slaughterhouse cases basically did is they took the privileges or immunities clause and basically stripped it of meaning to say that all that is saying is that privileges or immunities are limited only to those areas of the law or that. are already controlled by the federal government. So it's like access to ports, you know, right to run for federal office, you know, these kinds of things that were already part of federal law. But why would you need a constitutional amendment to protect that since you already have a

supremacy clause? So if federal law is conflicting with state law on areas of overlap, already federal law was going to control without the 14th amendment. And so the 14th Amendment kind of has to mean something other than just a simple restatement of the supremacy clause. And the result was essentially the majority in the Slaughterhouse cases really narrow the scope of these Civil War amendments and the 14th Amendment in particular to this is really all about former slaves. This is just what this is about as former slaves. It is not establishing these very big, broad legal rights that are available to all American citizens. And so, you know, field and dissent is what are you talking about? Fourteenth Amendment is not

just, that is not that narrow. Privileges or immunities are not that narrow. But what these cases do is then take that privileges or immunities language and kind of removes it from the field, just sort of takes it away from immediate relevance, and leaves the 14th Amendment with a clause basically sort of stripped out of it. And so then you're walking down the road, into the next iteration of 14th Amendment case law without privileges or immunities really as a key part of it. And that leads us, as you were saying, Sarah, into that Lochner era. But one thing that I think is important to point out about the language of the 14th Amendment and something that I have not seen people wrestle with sufficiently is the scope of privileges

or immunities and the scope of due process are different. So in the 14th Amendment, it says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law. So one of my questions, Sarah, is if you used privileges or immunities to incorporate the bill of rights to the states and local governments, rather than due process, which was used, if you were going to use privileges or immunities, would that mean that non-citizens are not protected by the Bill of Rights, the way they are protected plainly by the language of the Bill of Rights against the federal government, would that mean

that non-citizens are not protected against state and local governments? It's a, I haven't seen enough discussion of that distinction. That would be particularly newsworthy now because we're litigating these cases against, for instance, green card holders who have said something that the government doesn't like, maybe really odious stuff. Let's just, this is going to be my hypothetical, you know, from the river to the sea, Gaza shall be free, kill all the Jews. But you're not a citizen of the United States. Can they deport you for that? And that's a really interesting question, because if the First Amendment is incorporated through the Due Process Clause, it applies to all persons residing in the United States, basically.

But as you said, David, if it's the privileges or immunities clause that gives you First Amendment protection, then unless you are a full citizen, meaning permanent resident, you're here for the rest of your life, you're not protected by the First Amendment? Against the state and local governments, against the federal government, you would be. It would be a two-tiered system that non-citizens would enjoy a range of protections against federal action and no protection or only procedural due process protection from the state and local governments, which would be a big difference. Article 4 of the Constitution, which we never talk about, because remember, legislation is

Article 1, Executives, Article 2, Judiciary's Article 3. What is this Article 4? This is the full faith in credit clause, for instance, and Congress made by general laws prescribed the manner in which such acts, records, and proceedings shall be proved in the effect thereof. Fun. Okay. Section 2, though, of Article 4 says, The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. And remember that then in the 14th Amendment, it says, says, no state shall deny any citizen of the privileges or immunities. Okay, guys, this is just a phrasing thing.

Section 2 of Article 4 is phrased in the positive, shall be entitled to all privileges and immunities, and then 14 shall not be denied privileges or immunities. That's why I don't care. That's why I just use them interchangeably. I know I'm offending a lot of you who for some reason really, really memorize this and say it right all the time. I don't know why I can't. I really should be able to, but I can't.

And the reason is because I don't care. Okay. Moving forward now to the Lochner era. 1905. New York has enacted a statute known as the Bake Shop Act, which forbids bakers to work more than 60 hours a week or 10 hours a day. This was a health and safety thing, right? The bread was gross.

The bakers were disgusting. Lockner, though, wanted fresh bread. And so what he did was his guys, like, prepared a bunch of stuff in the evening. Then they slept at the bake shop where he paid them for their time sleeping. And then they woke up super early and started baking the bread. That's how he violates the 60 hours because he's actually a good boss who's paying his guys while they sleep. The first charge resulted in a fine of $25. That's a lot of money in 1905.

And the second charge, a few years later, resulted in a fine of $50. Lachner appeals his second conviction, argued, that the 14th Amendment should be interpreted to contain the freedom to contract, as in his bakers and he should be able to make a contract, a labor contract, without the state interfering in that contract. And that right is one of those unenumerated rights protected by the 14th Amendment, waving your hands around because now the privileges or immunities clause is a dead letter. 5-4, the Supreme Court says, yeah, sounds right to us. These are like the conservative guys.

They're going to be eventually, not these specific guys, different guys, but same idea. They'll be known as the Four Horsemen of the Apocalypse during the FDR era because they believe that the Constitution protects economic business interests, liberty interests as part of those unenumerated but very, very important rights that Americans have. David, the Lochner era, when we say that, is usually said derisively. Why? Let's just begin with Lochner. Struck down protection for child labor. I mean, so what we're talking about is the idea that individual liberty could be wielded in such a way as to be so brutal towards vulnerable people. And so what that did is it created a kind of appall around

the concept of substantive due process. Think of it as sort of the air, although child labor horrible, not as bad as slavery, but sort of the air to thinking of using due process concepts as in Dred Scott to ratify a profound injustice. So here you had sort of, if the intention of the 14th Amendment, if the goal of the 14th Amendment is to expand and extend the sphere of American liberty, most people when they think of liberty, they do not think of the liberty to brutally oppress your workers as sort of one of the core liberties, by the 14th Amendment. Now, obviously, I think that there are contractual elements that I do think are protect. There are economic interests that are protected by the 14th Amendment. I am so with

my libertarian pals on this concept. But the idea that among those core economic interests was the ability to employ children who shouldn't have even really been able to be determined to have the capacity to enter contract, that to employ children 60 hours a week or however many hours it was. That's why, that's why it's sort of the air to Dred Scott in that sense that you're using concepts of due process to protect activity and act, in this case, economic action that most people today would look at is utterly, utterly appalling. All right, I'll just read you guys a part of Lochner before we move forward. The statute, this bake shop statute, necessarily interferes with the right of contract between the employer and employee concerning the number of hours in which

the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the federal constitution. Under that provision, no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor, is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers existing in the sovereignty of each state of the union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt

at more specific limitation, relate to safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state and the exercise of those powers. And with such conditions, the 14th Amendment was not designed to interfere. Okay, David, so Lochner's decided we now have substantive due process, which the liberals are going to hate. And liberal and conservative is not going to line up perfectly against today's liberal and conservative, but I do mean here political liberal and conservative, really. So they hate the Lochner era. FDR is going to come in. That's how so many of his programs get struck down. This is the switch in time that saves nine, the end of the

Lochner era where FDR threatens to pack the court. Instead, they kind of change their mind. They start upholding some things. There's a retirement that helps. You have the Caroline Products case, which is not purely the switch in time, but it comes a little bit of a moment later, just a couple years, where it has the famous footnote setting up the tiers of scrutiny. Basically, if the state passes a law that's rationally related to like something, anything, literally anything, we're going to uphold it. That is the reversal of the Lochner era. But also in that footnote, it says, but if you're trying to screw over an insular minority, either in their fundamental rights or in their ability to exercise political power to maybe not be a minority,

then we're going to have closer scrutiny, i.e. strict scrutiny, where you have to have a compelling government interest. It's narrowly tailored to that purpose. So right there, your tears of scrutiny come because of the Lochner era. So liberals are super happy that Lochner's dead and gone, but then they're also really happy with strict scrutiny. They're going to use that a ton, obviously. And just a few decades later, David, they basically reignite the Lochner era. But for their stuff, so substantive duplicates. process comes roaring back in Griswold v. Connecticut in 1965 with one of the more famous lines in constitutional history, again, really in conservative world. Here's the majority.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance. instance. So this is the penumbras and emanations line that has led Justice Thomas to have a little sign in his office that says, don't emanate the penumbras. But you know, you still are left with a conundrum. There's no way to shake this out in a way that it's going to make, that it's going to be very clear, need, and easy for everybody because we know, as I said at the beginning of this podcast, that there are unenumerated rights. You can't be an originalist and think there are no unenumerated rights because right there in the text, it says there are. And so there has to be a mechanism for

recognizing them. What is it? You know, so there's three key, there are three key elements to the 14th Amendment. You have the privileges or immunities clause. You have the substantive view process clause. You have the equal protection clause. Which of these three are the clause that recognizes unenumerated rights and applies them to the states? Which one is it? Or is it any of them? Is it just going back to the Bill of Rights that they're actually we're implying it we're not pulling it

from the 14th Amendment that we're pulling it from the Bill of Rights and sort of saying that it's the Bill of Rights that has given us the idea of unenumerated rights and we're using that

as the recognition and then the 14th Amendment is just the incorporation device in some ways it almost feels like Sarah how many angels can dance on the head of a pen because we know

they're unenumerated rights we know they need to be recognized. We know they need to be protected. We know they need to be protected against the states and local governments. And you have this sort of menu item. Like you've got a restaurant menu and which is the line item that you're picking to do it. Justice Potter Stewart had a famous line in dissent in Griswold v. Connecticut. We are not asked in this case to say whether we think this law, sorry, I didn't actually say what Griswold was. Griswold is a law in Connecticut banning birth control for married couples, including married couples, I should say, which really hadn't been enforced for a long time. Everyone already knew that was a stupid law. This isn't one of those cases where people

were like really grappling with whether it was moral or the state should intervene in married couple's use of birth control. It was more of a test case, but they upheld the right to privacy and struck down Connecticut's laws unconstitutional. So Stewart and dissent here is saying, we are not asked in this case to say whether we think this law is unwise or even asinine we are asked to hold that it violates the united states constitution and that i cannot do that to me sets up the substantive due process fight that brings us you know into the creation of originalism the federalist society um the scalia era this idea of penumbres and emanations like judges are sort of charged with finding these unenumerated rights

based on their own principles and policy and vibe checks and the sort of Potter steward on the other side, I don't get to decide whether laws are unwise or assonide. That's not how we determine whether it's an unenumerated right. Substantive due process pretty much dies out in the 21st century, David, even among the liberals on the court. We're never really hearing much about substantive due process, even in Obergefell, Kennedy, you can see going out of his way to try not to use that term,

although it's definitely baked in there. My last question to you, David, on this, should we even care about substantive due process anymore? And you'll answer it after the break. Rinse takes your laundry and hand delivers it to your door, expertly cleaned and folded. So you could take the time once spent folding and sorting and weighting. to finally pursue a whole new version of you. Like tea time you. Or this tea time you.

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$400 in annual credits for travel and dining means you not only satisfy your travel bus. but your taste buds too. That's the powerful backing of Amex. Conditions apply. All right, David, do we care about substantive due process? Yes, we should care about doctrine where things come from, because even though I said there are angels dancing on the head of a pen, how many angels on how narrow a head of the pen

is still matters to some degree. And as we said, there's language difference in the different clauses. that and difference in scope. So these things do matter. But I think at the end of the day, you're still going to wrestle with the exact same fundamental question, which is, what are the unenumerated rights and how zealously should they be protected? And the bottom line is that the Constitution does not provide a clear answer to either one of those two questions. We just know that there are unenumerated rights. We know that they should be protected, but we don't have the specificity. So, yes, it matters. But whether we're talking substantive view process, privileges or

immunities, Ninth Amendment, equal protection, all of it adds up to much the same thing. There are unimmunerated rights. They deserve protection, and they're not defined. So how do we do it? A question that I don't think is going to go away anytime soon, because to your point, David, there has to be some, what did Justice Gorsuch in your interview with him describe it as? It was judgment. Was that his point? Like, there has to be some judgment. Someone has to make the judgment because they're not written.

That's the point. There are unenumerated rights. And, you know, Justice Gorsuch, as we mentioned, and Justice Thomas, to some extent, seem to want to bring back the privileges or immunities fun times. In terms of what the unenumerated rights are, it's not going to help you a whole lot. I think from a text history and tradition standpoint, you can kind of go back to the founding and see, like, what did people think was fundamental, but a lot of the things we think are fundamental, we don't write down. You're not going to see a whole lot of statutory protections

for David's right to wear a hat, for instance. You're going to see the things that were controversial at the time, for sure. I think we should have a rule on this podcast. It's not really a rule. It's more like a doctrine. Whatever we talk about, Judge Newsom has already written about. In this case, he had a 102-page law review article, setting in corporations straight, a reinterpretation of the slaughterhouse cases. And you're thinking, like, of course he did. This is what he does now. He's a judge. He has nothing better to do. Guys, this was from 1999, 2000. It's from 2000, he wrote this. It's so old. but in it he talks about this one case that's kind of interesting called Sands v. Rowe from

1999, so the year before, it is the most recent case that I'm aware of to use the privileges or immunities clause. And it was about a California law that said if you came into the state and needed welfare benefits, you only got the benefits from the state you came from for one year because California had such high good welfare benefits. They were worried about people coming into the state just to get bigger welfare benefits. So for a year, you were limited to the benefits you got from your previous state. And this went to the Supreme Court, and they said that the right to travel was a privilege or immunity in the 14th Amendment. And therefore, California's law infringed on that right to travel because it made you a second-class citizen in California

by having different welfare benefits than a native California or a long-term resident of California. Lots of reasons to maybe think that's a weird decision. Justice Thomas, the guy who loves the privileges or immunities clause, is actually in dissent in that, for instance, while saying, like, I love privileges and immunities, but this isn't even a right to travel case. Nobody stopped you from coming to California. Anyway, if you're curious for more on that, I do recommend, now, Kevin Christopher Newsom. I don't think I ever knew his middle name, but he put it in the Law Review article authorship. Kevin Christopher Newsom's article, setting a corporation straight, a reinterpretation of the Slaughterhouse cases. So to bring us back full circle, Sarah, after all of this discussion, what do you predict happens on November 7th? With the Kim Davis case. It's a no.

A no with a statement regarding denial of cert? Nope. I think it's a no with nothing. But my second choice is a no with a statement. And even then, I don't think the statement will be, we need to revisit Obergefell. So, number one, no, no statement. Number two, statement, but it's not about Obergefell. It's about sort of the process arguments that Kim Davis was making. And then, yeah, three statement and four granting cert? Like, that's my last pick.

What about you? I might flip the order a little bit. I think it's going to be a no. I think it might be a no with maybe a Thomas statement regarding privileges or immunities, very similar to what he said in Dobbs, where he kind of went on a bit of a almost like wrote a larvae article about privileges or immunities is sort of the better way of doing all of this. I tend to, I think it'll be a no with a Thomas statement, maybe. And then the second option is no. I really have a hard time seeing them. Grant it. That would,

as I said, I would just be absolutely shocked. But I've been shocked before. Thank you, Joshua, for your question. I hope by virtue of the fact that we spent an hour on it, we have convinced you that your question about substantive due process isn't dumb, but also what is substantive process? That's not a thing. No, no, no. It wasn't a thing in Lochner. It wasn't a thing in Griswold, whether it's the conservatives who like it or the liberals who like it, whether it's used for the things you like or the things you don't like. No, I'm a no on substantive due process. David, before we go, the leaders of young Republican groups throughout the country were all in a group chat together, and it leaked. And sort of funny enough, in the group chat, they're talking about how bad it would

be if the chat leaked, which would make you think maybe don't say the things that you think would be really bad if the chat leaked. But no, that didn't stop them. I'll read a few quotes. Everyone that votes know is going to the gas chamber. Great. I love Hitler. If we ever had a leak of this chat, we'd be cooked for real, for real. It was rape. Epic. Was the, response to that one. I'd go to the zoo if I wanted to watch monkey play ball. It's not great. They love the watermelon people. He also hates the Jews' heart. Okay, so the point is there's bad stuff in this chat, anti-Semitic stuff, racist stuff, misogynist stuff, all of that. Let's stipulate that that's the case. Also, stipulate that these aren't.

college Republicans. These aren't kids. These are 20-something and 30-something, late 30-something in some cases. They're like basically my age in this chat. They're professional people. Yeah, yeah, real people, including people who'd been elected to office, state office. Yeah, they're grown-ass men by and large. Okay. So, David, we're not talking about this to dunk on them, but more because each side of any group, of any tribalist situation, no matter what it is, is going to to have their lingua franca. And that will change and become more extreme as people sort of have to prove that they're the most pure version of whatever that tribe is. On the left, we've called it virtue signaling. Some have called the rights vice signaling, for instance. Or as Richard

Hania called it, the based ritual, where you have to prove how based you are with certain known topics and statements to show that you are based. David, the fact that this leaked made it seem like it's the crazy thing, the really unusual thing. And I think what we've talked about privately so far is like, no, no, this is the based ritual. Richard Hania talked about this months and months ago. He wrote a whole one-act play that I have to put in the show notes

because it's so good and scary and sad about what all of these conversations look like when two people within the right meet each other for the first time and what that conversation needs to look like so that they can confirm that the other person is a member of their tribe, what that shibboleth sounds like. Yeah. And if you read that article, which actually, again, this is something, I want to say this about the immediate reaction to political article. If you don't have very much memory at all, you would say, wow, well, this is terrible, but who cares what just a few staffers say, whatever. But then you realize, wait, no, this is only the latest version of this.

We have been for years, how many leaked group chat stories have there been on the right involving outright racism, outright flirtation with fascism, some of the most gross misogyny you can imagine. And that it just keeps happening. It just keeps bubbling up. If your kids are very online, they will tell you this is young right-wing culture. and that young right-wing culture in many parts of the internet is overrun with this kind of based signaling.

How extreme can I get? My poster child on the left for today will be Karin Jean-Pierre, the former press secretary to Joe Biden, who has announced that she's leaving the Democratic Party because Democrats were too mean to Joe Biden and to Vice President Harris. the interview in the New Yorker is stunning because it's so clear that she doesn't speak the normal language that everyone else speaks. But the point of the interview was sort of pushing her on

if Trump is such a threat, which you think he is, and Biden was going to lose, did it really matter whether people were mean to Biden? Isn't something more important than how people treated Joe Biden, which was winning the election against Donald Trump? And instead of being able to answer that question, which is, look, a nuanced question, I know what it feels like to be very loyal to your boss and to feel like your boss is being mistreated. But instead of engaging in that, she basically pulls this identity politics card. Well, you don't live in the body of a black woman so you can't understand. It's like, whoa, whoa, this is an interesting question. Engage with the question. Don't shut down the question with this like left language that isn't responsive. And, you know, there's also this moment where the interviewer says, well, you said that Harris, you didn't think Harris could ever win, but then you're also mad that people wanted a primary? And again, that's an interesting question, but she doesn't engage in it and instead shuts it down about racism and sort of goes to this, like, for lack of a better word, left-wing, shiboleth language.

So Republicans should be very grateful for this interview from Corrine Jean-Pierre. nothing could be more helpful, both in terms of burying Joe Biden. Like, if this is your best offender, this is really, really bad for him. They still don't have a leader of their party on the left. It hurts Harris almost more than Biden because she wanted to have a political future. This is devastating for Harris as far as I'm concerned. And honestly, the Biden administration, the gift that just keeps giving to the Trump administration. So next week on Wednesday will be the tariff oral argument.

On Monday, we'll get everyone up to speed what they need to know before they start listening to that argument. And don't forget, we will be live blogging the argument over at SCOTUS blog and then hosting a live advisory opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us.

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or corrections, you can email us at advisory opinions at thedispatch.com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time. Thank you. Oh! Thank you. Thank you.