The Fourteenth Amendment provides that a state cannot deprive a person of “life, liberty, or property, without due process of law.” With respect to substantive due process cases, courts determine whether an asserted right constitutes a protected “liberty” interest within the meaning of the 14th Amendment. That is, does denying someone a right to contract, abortion, or marriage, for example, deprive them of a constitutionally-protected “liberty.” For some–but not all-famous substantive due process cases, there is an additional liberty interest at stake: jail.

It is shorthand to call the case Lochner v. New York, but the full name is Lochner v. The People of New York (1905). A violation of the New York Bakeshop Act was a misdemeanor. Lochner was “sentenced to pay a fine of $50, and to stand committed until paid, not to exceed fifty days in the Oneida county jail.” (I have been unable to determine whether Lochner in fact spent any time in jail, or whether he was able to appeal prior to paying the fine; because it was a test case, I lean towards the latter.) Likewise, Muller v. Oregon (1908) was a criminal prosecution. Employing female workers could result in a “misdemeanor subject to a fine of not less than $10 nor more than $25.” The failure to pay a criminal fine–unlike a civil fine–could result in a bench warrant and arrest. In Meyer v. Nebraska (1923), a teacher who taught a foreign language that was not “ancient” or “dead” could be found “guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense.” Nebbia v. New York (1934) upheld a conviction for a grocer who sold milk at a discount. The New York statute declared that such conduct was “punishable by not more than a year’s imprisonment, or not more than $100 fine or both.” (I have been unable to determine if Leo Nebbia actually spent time in prison.)

This analysis is by no means limited to economic liberty cases. In Griswold v. Connecticut (1965), the use of contraception in violation of state law could be “fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” (Estelle Griswold and C. Lee Buxton, who “were found guilty as accessories” of the predicate offense, were “fined $100 each.”) In Eisenstadt v. Baird (1972), the Court reversed a prosecution for providing a woman with contraception. The Massachusetts statute at issue “provide[d] a maximum five-year term of imprisonment.” Criminal prohibitions applied to marriage, as Justice Thomas recounted in his Obergefell dissent, Justice Thomas:

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia. They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. In a similar vein, Zablocki v. Redhail, involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations.

Justice Thomas cited the fact that these cases resulted in criminal prohibitions on marriage as a critical distinction with the Plaintiffs’ prayer for a positive right of marital recognition. Likewise, in Lawrence v. Texas, the defendants pleaded nolo contendere to a Class C misdemeanor, and paid a $200 fine.

In each of these cases, a conviction would result not only in a deprivation of an asserted unenumerated liberty interest (i.e., contract, abortion, marriage, etc.) but also a possible deprivation of physical liberty–that is incarceration. As I discussed in a recent lecture at Waynesburg University, the level of scrutiny should be stricter when there is a double-deprivation: you can’t engage in the protected conduct, for doing so  could result in a physical custody by the government. As best as I can tell, this thread has not played a role in substantive due process cases. Justice Kennedy alluded to it in passing in Lawrence. He wrote that though a Class C misdemeanor was a “minor offense,” it “remains a criminal offense with all that imports for the dignity of the persons charged.” Even after the payment of the fine, the Defendants would “bear on their record the history of their criminal convictions.” This argument has far more weight than Kennedy’s “dignity” hortatory fluff.

When the Court applies strict scrutiny, or the “undue burden” framework, there is little reason to demand a heightened review based on a double-deprivation of rights. Doing so would be largely superfluous. Yet, this principle would be far more significant in the economic liberty cases, where the Court only reviews for minimum rationality. Under the rational basis test, as articulated in Williamson v. Lee Optical (1955), the burden is on the plaintiff to disprove every conceivable basis on which a law could be justified–whether it is advanced or not by the government. With respect to civil suits, I’ve long viewed this standard as an unconstitutional delegation of the judicial power to the legislative or executive branch: courts cannot give up their power of judicial review because a given right is deemed to be disfavored under the bifurcation of liberty in Carolene Product’s fourth footnote. But as applied to criminal prosecutions, this standard is even more unjustifiable. Generally, in criminal prosecutions, the burden is on the state, not the defendant, to prove every element of the offense beyond a reasonable doubt. But when the rational basis test is applied in a criminal prosecution, the framework is reversed: the defendant now bears the burden to attack the constitutionality of the statute. Such an approach is not consistent with the due process of law.

In future writings, I hope to engage the intersection of substantive due process and the criminal law. Putting aside for a moment of what rights are protected, the subsequent question of who bears the burden in a criminal prosecution remains. In short, the Defendant–whose physical liberty is on the line–should not have the responsibility to shadow-box with the rational basis test.