When Due Process Is “Fairly Debatable”

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .

U.S. Const., amend. XIV, § 1.

• Previously in This Series

  1 | The Right to Inherit, Purchase, Lease, Sell, Hold, and Convey a Home

  2 | The Original Meaning of the Fourteenth Amendment

  3 | The Exile of Privileges or Immunities

“Due process.” If you’re an American with a pulse and you’ve ever read, heard, said, or written anything about constitutional law, there’s a good chance that “due process” figured somewhere in your experience. But what does “due process” mean?

This post covers an awful lot of ground, about which entire courses are taught in law school. To revisit our last post, “due process” was originally a requirement of the Fifth Amendment, which only applied to the federal government. The Fourteenth Amendment (1868) made “due process” applicable to the States. That’s had a ton of consequences. Let’s go.

TWO KINDS OF “DUE PROCESS”

American law recognizes two kinds of “due process,” and yes, that’s confusing. There’s “procedural due process,” a redundant but honest term. Then there’s “substantive due process,” which, well…

Let’s start with “procedural” due process, “which sounds redundant.” Braley v. Pontiac, 906 F.3d 220, 228 (6th Cir. 1990) (Nelson, J., concurring). “The fundamental requirement of [procedural] due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’” before the government “deprive[s]” one of “life, liberty, or property.” U.S. Const., amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Think of procedural due process as a “no shenanigans” rule. Your correspondent has helped win a few precedents against procedural shenanigans: Platt v. Moore, 15 F.4th 895 (9th Cir. 2021) (forfeiture statute violates due process); State v. Johnson (In re $39,500), 521 P.3d 621 (Ariz. Ct. App. 2022) (forfeiture judgment violates due process); City of Charlestown v. Charlestown Pleasant Ridge Neighborhood Ass’n, 111 N.E.3d 199 (Ind. Ct. App. 2018) (code enforcement must follow state statute). Procedural due process violations aren’t uncommon, and it’s often possible to get a favorable judgment when the government refuses to back down. But procedure isn’t substance, and procedural precedents aren’t the most portable.

Enter “substantive” due process, an “oxymoron” that one author memorably skewered as “sort of like ‘green pastel redness.’” Ely, Democracy & Distrust 18 (1980); Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 Mich. L. Rev. 1517, 1531 (2008). The truth is that this doctrine compensates for the exile of privileges or immunities. Having written fundamental rights out of the Fourteenth Amendment in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court had to make up for its error eventually.

SOME RIGHTS GET MORE “PROCESS” THAN OTHERS (SCOTUS SAYS)

The Bill of Rights didn’t use to apply to state and local governments—the Fourteenth Amendment (and specifically, SCOTUS says, the Due Process Clause) changed that. In Timbs v. Indiana, 586 U.S. __ (slip op.) (2019), the Notorious R.B.G. wrote for a basically unanimous Court that “the Excessive Fines Clause [of the Eighth Amendment] is … incorporated by the Due Process Clause of the Fourteenth Amendment.” Timbs was the most recent in a long line of cases outlining a doctrine called “selective incorporation.” We don’t have space to cover it all here, so to try anyway, the Court spent more than a century piecemealing the Bill of Rights into force against state and local governments. See Timbs (Eighth Amendment—excessive fines); McDonald v. City of Chicago, 561 U.S. 742 (2009) (Second Amendment—right to bear arms); Schilb v. Kuebel, 404 U.S. 357 (1971) (Eighth Amendment—excessive bail); Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment—double jeopardy); Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth Amendment—trial by jury in criminal cases); Washington v. Texas, 388 U.S. 14 (1967) (Sixth Amendment—compulsory process); Klopfer v. North Carolina, 386 U.S. 213 (1967) (Sixth Amendment—speedy trial); Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amendment—right to confront adverse witness); Malloy v. Hogan, 378 U.S. 1 (1964) (Fourth Amendment—warrant requirement); Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment—assistance of counsel); Robinson v. California, 370 U.S. 660 (1962) (Eighth Amendment—cruel and unusual punishment); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment—exclusionary rule); Wolf v. Colorado, 338 U.S. 25 (1949) (Fourth Amendment—unreasonable searches and seizures); In re Oliver, 333 U.S. 257 (1948) (Sixth Amendment—right to public trial); Everson v. Bd. of Educ., 330 U.S. 1 (1947) (First Amendment—establishment of religion); Cantwell v. Connecticut, 310 U.S. 296 (1940) (First Amendment—free exercise of religion); De Jonge v. Oregon, 299 U.S. 353 (1937) (First Amendment—freedom of assembly); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (First Amendment—free press); Gitlow v. New York, 268 U.S. 652 (1925) (First Amendment—free speech); Chi., Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) (Fifth Amendment—just compensation for takings). 

some kind words for Clarence Thomas: he’s right about the Privileges or Immunities Clause.

Recall from before that in United States v. Cruikshank, 92 U.S. 542, 551 (1876), SCOTUS had held that the “right of the people peaceably to assemble,” although the literal text of the First Amendment, was “not … a right granted to the people by the Constitution” against state and local governments. (That’s bananas.) Thanks to the selective incorporation doctrine that last came up in Timbs, see supra, it’s now federal law that the First Amendment does apply everywhere within the country because of the Due Process Clause of the Fourteenth Amendment. But see also Timbs (Thomas, J., concurring in the judgment) (“I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”).

The selective incorporation of (most of) the Bill of Rights is the main form of “substantive” due process, but it’s not the only form. Notwithstanding Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (slip op.) (2022), there really are a lot of “unenumerated” rights that don’t show up in the Constitution’s literal text—that’s the entire point of the Ninth Amendment, but we don’t have space for that here. For housing’s sake, let’s stipulate that unenumerated rights include the right to inherit, purchase, lease, sell, hold, and convey a home. Taking it all together, “substantive” due process refers to rights that the government simply shouldn’t touch: free speech, being with family, that sort of thing. And this brings us to one of the most consequential dichotomies in Supreme Court caselaw:

• FOOTNOTE FOUR, aka “TIERED SCRUTINY”

  In what many recognize as “the most important footnote in constitutional law,” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), the Supreme Court suggested that some rights should get better judicial treatment than others. This doctrine has long since congealed.

  Carolene Products upheld a ban on milk substitutes that was enacted in the Depression to drive demand for dairy. SCOTUS applied something called “rational basis” review, which is in essence a “presumption of constitutionality.” Id. at 152 & n.4. Most laws are subject to rational basis review, and the government almost always wins.

  Footnote Four intimated that the Bill of Rights, political-process rights, and the rights of “discrete and insular minorities” might merit “more searching judicial inquiry.” Id. at 152 n.4. That’s eventually what happened, and what the federal courts now call “fundamental” rights are subject to something called “strict scrutiny.” Under strict scrutiny, the government usually loses.

  Zoning, since the ‘70s, draws an especially deferential version of rational-basis review. We’re not there yet, but we’ll get there two posts forward.

The “rational basis test” is what Justice Alito used to uphold Mississippi’s abortion restriction in Dobbs (slip op. at 77–78). It’s about as old as zoning, and it was from the very beginning about sexism.

YOU’VE READ ABOUT EUCLID . . .

Before Herbert Hoover became synonymous with homeless encampments—and before he won the Presidency—he became famous on the force of his zeal for zoning. Herbert Hoover was an ambitious man. As Secretary of Commerce (whom President Calvin Coolidge would come to regret), Hoover wrote the “standard” zoning act (1922–26) to evade Buchanan v. Warley, 245 U.S. 60 (1917).

dam, Hoover—you can’t legislate 15 million acre-feet/year against nature.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), which upheld zoning as a general (not specific) matter, came down as the “roaring ‘20s” were metastasizing. History records an economic boom that favored America, deluding its politicians with power. Country-club types began zoning as if cities could be designed like golf courses. Euclid upheld zoning, or at least the Village of Euclid’s zoning ordinance, and laid down a test that still stands today:

[I]t must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

Euclid, 272 U.S. at 395. This is now understood as “rational basis” review, though some (state) courts are starting to recall that “substantial” means something stronger than a laugh test. In another famous passage, the Euclid Court explained its reasons for allowing a presumption of constitutionality:

A nuisance may be merely a right thing in the wrong place—like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.

Euclid, 272 U.S. at 388. The 1920s, by the way, were also the first decade that women could vote. You bet the men on SCOTUS were in their feelings.

. . . “FAIRLY DEBATABLE” WAS BORN OUT OF SEXISM . . .

Euclid’s “fairly debatable” standard is now ubiquitous. It pervades the caselaw on challenging zoning, and it gives courts permission to dismiss those challenges. What’s underappreciated is how the “fairly debatable” standard originates from a sexist opinion upholding a criminal conviction for employing a woman at night. See Radice v. New York, 264 U.S. 292, 294 (1924); Jordan, “Horror of a Woman”: Myra Bradwell, the 14th Amendment, and the Gendered Origins of Sociological Jurisprudence, 42 Akron L. Rev. 1201, 1241 n.273 (2009) (noting the Court’s “insincere[]” treatment of women’s issues in the 1920s); see also Buck v. Bell, 274 U.S. 200, 205 (1927) (upholding forced sterilization of—these were Justice Oliver Wendell Holmes’s words—“a feeble minded white woman” who’d had “an illegitimate feeble minded child”). New York really made it a crime for women to work night jobs in cities, and that’s the first law SCOTUS ever upheld—in the wake of the Nineteenth Amendment, no less—as “fairly debatable”:

Adopting the “fairly debatable” standard from Radice, the Supreme Court decided a flurry of zoning cases in the late 1920s, starting with Euclid. 272 U.S. at 388 (citing Radice); see Zahn v. Bd. of Pub. Works, 274 U.S. 325, 328 (1927) (upholding Los Angeles’s five-zone ordinance) (Dear Library of Congress: please append Zahn’s last page!); Gorieb v. Fox, 274 U.S. 603 (1927) (upholding Roanoke, Virginia’s setback requirements). All of these cases, whether upholding zoning or sexism, found that “due process” had been afforded. Gorieb, 274 U.S. at 608; Zahn, 274 U.S. at 327; Bell, 274 U.S. at 207; Euclid, 272 U.S. at 397; Radice, 264 U.S. at 293.

. . . DO YOU KNOW ABOUT NECTOW & ROBERGE?

Euclid has some silver linings. Unlike most Supreme Court cases, Euclid was argued twice. 272 U.S. at 365. Before the second argument, Justice Sutherland—who authored the eventual opinion in Euclid—“was writing an opinion for the majority” that would have “h[e]ld[] the zoning ordinance unconstitutional.” McCormack, A Law Clerk’s Recollections, 46 Colum. L. Rev. 710, 712 (1946). It was Justice Stone who convinced Sutherland to order the reargument that “changed [the Court’s] mind.” Id. If Euclid seems like canon today, it was actually a close call at the time.

Euclid also doesn’t mean what most people think it means. It does not hold that all zoning is constitutional. Sutherland’s final opinion was explicit on this point:

[W]hen … the provisions set forth in [a zoning] ordinance … come to be concretely applied to particular premises … or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable.

Euclid, 272 U.S. at 395. Translated to modern judicial parlance, Euclid simply holds that facial challenges to zoning ordinances (presumptively) shouldn’t succeed. But Euclid also invited as-applied challenges, and that’s exactly how the Court struck down a zoning ordinance two years later. See Nectow v. City of Cambridge, 277 U.S. 183 (1928). The key to Euclid is to understand Nectow. Nectow may have been forgotten, but it’s equally valid law. We hope to bring Nectow back.

The last zoning case that the Court decided in the 1920s, on the heels of Hoover’s election to the Presidency, reinforced the Court’s first YIMBY law: no ordinance shall delegate to nimbys the “authority—uncontrolled by any standard or rule prescribed by legislative action—to prevent [a landowner] from using [her] land [to develop a] home.” Washington ex rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 116, 122 (1928); see also Eubank v. City of Richmond, 226 U.S. 137, 143 (1912) (“One set of owners determine not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power?”). 

SCOTUS to Seattle: make way for affordable senior housing!

Whatever else may be “fairly debatable” about due process, at least in SCOTUS’s minds, Roberge holds that zoning permits (in that case, for affordable senior housing) may not depend on the arbitrary “consent” of nearby neighbors. 278 U.S. at 117–18. As we grow, we’re noticing potential Roberge violations around the country. Local governments, you (could have) read it here first.

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Our next post, continuing within Section 1 of the Fourteenth Amendment, will brief the early development of the Equal Protection Clause.