TBJ JANUARY 2023 OPINION
The Disorderly Origin of
Why the Dobbs standard for substantive due process is unlikely to endure.
Written by Christopher R.J. Pace
Dobbs v. Jackson Women’s Health Organization1
reintroduced into the common legal lexicon a phrase few lawyers have
heard since their constitutional law classes in law school. The phrase
is “ordered liberty,” as in a right is guaranteed by the 14th
Amendment’s due process clause only if it is “‘deeply rooted in this
Nation’s history’ and ‘implicit in the concept of ordered
liberty.’”2 It is a peculiar phrase used not just once or
twice in Dobbs, but 10 times across the lengthy majority
opinion and twice more in the concurring opinions.
Many are debating right now what substantive due process rights previously recognized by the U.S. Supreme Court can pass muster as being “implicit in the concept of ordered liberty”—same-sex marriages, same-sex sexual relationships, birth control, etc. This, however, may focus on the wrong question. Rather, the real question may be whether the court will replace the current “ordered liberty” standard altogether with a more workable, predictable, comprehensible model to judge future substantive due process cases.3
The problem with “ordered liberty” as a constitutional touchstone stems from its very origin. Justice Benjamin N. Cardozo grafted the standard onto the 14th Amendment’s due process clause in a 1937 case, Palko v. Connecticut.4 He did not cite to a direct source for this new standard but simply announced it as his synthesis of recent Supreme Court decisions: “In these [decisions] and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, became valid as against the [S]tates.”5
The phrase “ordered liberty” was not new to constitutional discourse. It is most famously attributed to President George Washington.6 Closer in time to Palko, it is a phrase that was frequently used by President Herbert Hoover—the president who nominated Justice Cardozo to the U.S. Supreme Court.7 Neither president, however, used the phrase to describe either due process or the Bill of Rights but instead to epitomize the benefits of democracy, the rule of law, and/or the American form of government. Secretary of State Bainbridge Colby captured this sense of “ordered liberty” when he invoked the phrase in his 1920 “Loyalty” speech, proclaiming: “America stands for individual liberty, but that means an ordered liberty. A liberty subject to law and subordinate to the common welfare.”8 So while Justice Cardozo may not have coined the phrase “ordered liberty,” he did mint a new and novel use of the phrase.9
The Palko court (over only one dissenting justice) applied this new test to conclude that the Fifth Amendment’s double jeopardy protection against retrials of a criminal defendant did not apply to the states through the 14th Amendment’s due process clause. This was so, according to the court, because to deny a defendant such protection would not “subject him [to] a hardship so acute and shocking that our polity will not endure it.”10 Along the path of reaching this conclusion, the court also made clear that its due process “ordered liberty” analysis was not an incorporation doctrine but a free-standing inquiry into whether certain rights that happen to be reflected in the Bill of Rights are also fundamental to liberty and justice. In the court’s words, “[i]f the Fourteenth Amendment has absorbed [rights reflected in the Bill of Rights], the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed.”11 The court also quoted from Twining v. New Jersey to the effect that if safeguards found in the Bill of Rights also apply against state action, “it is not so because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.”12
Palko was essentially doomed from its inception. It was decided in the same year (1937) as the famous (or infamous) “switch in time that saved nine” case, West Coast Hotel Co. v. Parrish.13 That case rejected a constitutional challenge to a state minimum wage law and overruled Adkins v. Children’s Hospital.14 Parrish marked the end of the “Lochner era” during which the Supreme Court struck down various pieces of economic legislation under the due process clause based on natural law concepts of liberty of contract and other economic rights. “Ordered liberty,” however, was similarly tethered to paternalistic natural law concepts. As Justice Black explained a decade later in his Anderson v. California dissent: “[T]o pass upon the constitutionality of statutes by looking at the particular standards enumerated in the Bill of Rights and other parts of this Constitution is one thing; to invalidate statutes because of application of ‘natural law’ deemed above and unidentified by the Constitution is another.”15
Over the decades that followed, the Supreme Court slowly chipped away at the foundation of Palko. It applied more and more Bill of Rights protections to the states through the 14th Amendment’s due process clause. The court also embraced an “incorporation” approach so that if a Bill of Rights protection was extended as against the state, it was enforced using the same standard applicable to the federal government.16 Finally, the Supreme Court expressly overruled Palko in Benton v. Maryland, decided in 1969.17 In the words of the Supreme Court, “Palko’s roots had thus been cut away years ago. We today only recognize the inevitable.”18
Maintaining “ordered liberty” as a constitutional principle following the demise of Palko has led to ongoing confusion. As used in Palko, “ordered liberty” was the basis to apply to states less protective, more malleable versions of rights reflected in the Bill of Rights and to reject incorporating the first eight amendments into the 14th Amendment’s due process clause. As the Supreme Court explained in McDonald v. City of Chicago, however, the court has clearly “abandoned the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”19 The court has also “decisively held that incorporated Bill of Rights protections are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”20 In short, not only has Palko been overruled, but the root application of “ordered liberty” has been eviscerated. Modern invocation of due process “ordered liberty” simply lacks any concrete historical moorings.
Modern Supreme Court decisions have also struggled to define clearly the interplay between “ordered liberty” and our nation’s history and tradition in deciding whether a right is guaranteed under the due process clause. Some cases suggest that due process embraces a right if it is either “deeply rooted in this Nation’s history and tradition” or encompassed within the concept of “ordered liberty”;21 others suggest the right needs to be both “deeply rooted” and encompassed within the concept of “ordered liberty”;22 and still others suggest that a right having deep roots in the nation’s history and tradition is essentially the same as the right being a component of “ordered liberty.”23 A state of confusion or ambiguity, of course, is more associated with disorder than order, making it a paradoxical environment in which the phrase “ordered liberty” should reside.
Finally, the Supreme Court has invoked the notion of “ordered liberty” in a related context: It was one of the standards employed to determine whether a newly recognized constitutional rule of criminal procedure was a “watershed rule” so that it applied retroactively in habeas proceedings even to otherwise final convictions.24 Just last year, however, the Supreme Court in Edwards v. Vannoy abandoned the “watershed rule” exception to non-retroactivity of new procedural rules, calling it “a theoretical exception that never actually applies.”25 Such an exception, the court explained, “offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.”26 It is hard to see how “ordered liberty” is a viable benchmark to evaluate unenumerated constitutional rights when that phrase has contributed nothing (quite literally) to the appraisal or classification of independently recognized constitutional rules of criminal procedure.
As noted above, Dobbs has brought renewed attention to the concept of “ordered liberty.” But that attention—and its accompanying scrutiny—is likely to lead to the demise, not the development, of “ordered liberty” as a barometer of constitutional rights. As Justice Samuel Alito acknowledged in Dobbs, historians have “cataloged more than 200 different senses” in which the term “liberty” has been used.27 For such an expansive noun, related adjectives are of critical significance. They should promote clarity, differentiation, and (by being clear and distinct) predictability. The Palko court’s description of due process liberty as being “ordered” accomplishes none of these goals. Coupled with its natural law overtones, “ordered liberty” is an ill-suited measure of 14th Amendment rights. As a due process precept, it should be—and, in time, will be—archived, not advanced. TBJ
CHRISTOPHER R.J. PACE
is a seasoned trial attorney and partner in Winston & Strawn’s Dallas office, focusing his practice on complex commercial and competition cases and government investigations. He is a former law clerk to U.S. Supreme Court Justice Anthony M. Kennedy.