Scalia’s Double Standard on Substantive Due Process

June 28th, 2010

Last week I questioned how Scalia would deal with his hatred of substantive due process, if he were to incorporate the second amendment using the due process clause. In today’s opinion, He addressed this contradiction with two simple sentences.

I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I haveacquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.

Here is the quote Scalia referenced from Albright v. Oliver (Scalia, J., concurring).

Except insofar as our decisions have included within the Fourteenth Amendment certain explicit substantive protections of the Bill of Rights—an extension I accept because it is both long established and narrowly limited—I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty.

In other words, Scalia treats “explicit substantive protections [enumerated in] the Bill of Rights” as a permissible use of substantive due process, but rejects the proposition that “the Due Process Clause guarantees certain (unspecified) liberties.”

This is poppycock. Even if a provision is enumerated in the bill of rights, Scalia still needs to “liberty” provision in the Due Process clause. The “liberty” provision of the Due Process Clause has no textual or historical connection to enumerated provisions in the bill of Rights. This is a distinction without a difference, and a form rationalization.  I was hoping more from Scalia than this two-sentence throwaway.