Gorsuch, the 14th Amendment, and the nebulous void of moral reasoning

As expected, President Trump this evening nominated Neil Gorsuch to replace Antonin Scalia as Associate Justice on the Supreme Court. Given the Court's decades of abuse of substantive due process arguments (I will explain what a substantive due process argument is below), I continue to wonder how Judge Gorsuch thinks the due process clause of the 14th Amendment ought to be construed.

For example, the Court's recent Obergefell decision established a constitutional right to marriage between same sex couples. The majority opinion in that decision, written by Justice Kennedy, reasoned that state prohibitions against same-sex marriage were unconstitutional because they stood in conflict with the due process clause of the 14th Amendment of the Constitution. Let us test the reasoning behind that proposition.

The due process clause reads:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law.

Now, surely, the point of this clause is not that a state may not deprive a person of life, liberty, or property at all. States execute persons convicted of capital crimes on a fairly regular basis, most assuredly depriving them of life. Likewise, states regularly deprive persons of liberty by incarcerating them when they have been convicted of a crime punishable by a prison sentence. And finally, states deprive persons of property all the time when they levy taxes on them. Thus, the 14th Amendment does not prohibit all state deprivations of life, liberty, and property, but only those that are carried out without due process of law.

How, then, do we determine whether such a deprivation has been carried out with or without due process of law? Presumably, by consulting the laws on the books and examining the procedures used to enforce those laws.

For example, Section 26 of Article XIII of the California Constitution grants the state the right to levy income taxes on me:

Taxes on or measured by income may be imposed on persons, corporations, or other entities.

Furthermore, my W2 form, forwarded by my company to the State, is legally valid evidence of my income for the past year. Finally, various state laws and rules establish formulas for determining the fraction of that income I must pay in tax. So, if I were to argue that the State of California, by levying an income tax on me, was depriving me of property without due process of law, this argument would founder in the courts because the State could not only make reference to various laws on the books granting it the authority to tax, but could also demonstrate that it had followed fair and well-defined evidence and procedures in making the assessment against me.

So, now let us turn to the matter of same-sex marriage. The argument is made that state prohibitions of same-sex marriage are unconstitutional because they are in conflict with the 14th Amendment. This is so, presumably, because the ability to marry is a species of liberty that is being denied to same-sex couples. But, now we must turn to our test of whether this denial is being carried out with or without due process of law. Once again, we do so by consulting the laws on the books and the procedures followed to carry out those laws. One such law was Michigan's Proposal 04-2, a duly passed amendment to the Michigan state constitution, which stated:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Presumably, the law intended that the county clerk, as a condition of issuance of the marriage license, follow the procedure of examining the applicants' birth certificates, which are considered legally valid evidence of identity and gender. Thus, it would seem, this particular deprivation was being carried out in accordance with a duly enacted law, namely, Proposal 04-2, and in accordance with a well-defined procedure, so that Michigan's deprivation of this particular species of liberty, namely, the liberty to marry a partner of the same sex, was carried out with due process of law.

We have reached the critical juncture of the substantive due process argument, the point at which the defenders of that argument depart from the solid footing of the law, and float off into the nebulous void of moral reasoning. For, the defenders of the majority opinion in Obergefell (and of other decisions based on substantive due process arguments, such as Roe v Wade) will say: "Well, yes, we do not deny that Michigan's deprivation of the liberty to enter into a same-sex union was in accordance with a duly enacted law and followed a well-defined procedure. But that is mere procedural due process. We can't just look at the laws on the books and the procedures that were followed. There are other moral criteria against which we may test: for example, we may consult our sense of natural justice, or our intuition of natural law. And when we consult those other sources, they tell us that Michigan's deprivation is unjust and must be overturned. In brief, due process cannot possibly have been followed unless we feel that the substance of the decision is just. In other words, we must have substantive due process."

With this argument (actually, a contradiction in terms), we enter into a very dangerous region. Through this reasoning, the defenders of substantive due process manage to untether themselves completely from every vestige of positive, written law and assert that the judicial decision at hand is to be based instead on a sense of natural justice. But whose sense of natural justice are we to refer to when making the judicial decision? Why, that of the defenders of the substantive due process argument, of course. And if their sense of justice is different from the moral sense of millions of voters in Michigan, well, so be it; the voters sense of justice must be overruled. If we follow this line of reasoning, it leads us to a form of government where we are ruled not by ourselves, but by the moral sensibilities of a majority of 9 judges sitting in the Supreme Court in Washington. As Justice Scalia wrote in his dissent from the majority opinion in Obergefell:

I write to call attention to this Court's threat to American democracy. ... [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

We may be happy with (or, as Judge Scalia seemed to be, indifferent to) the outcome of Obergefell -- our gay friends and relatives have been granted the right to enter into a same-sex union -- but the form of government that imposes that outcome on us is certainly not what the Founding Fathers intended, being much closer to rule by a panel of ephors than a democracy, and we should find that form of government by aristocracy of Harvard and Yale Law grads abhorrent. This explains why it is so important that Justices be nominated to the Court who are not going to engage in specious substantive due process arguments of this kind.

And it is for that reason I would like to hear a disquisition from Judge Gorsuch during his confirmation hearings on the subject of the proper way to reason about the 14th Amendment. This is not a question about how he would decide a particular case, but about judicial philosophy in general. As such, I believe it would be perfectly appropriate for him to expound on the topic.