Constitutional Fictions

Updated 4/10/12


"If God did not exist," said Voltaire, "it would be necessary to invent him." I think substantive due process works in much the same way. Current constitutional law in the area of individual rights is based on a few large fictions, including the doctrine of Incorporation and the doctrine of Substantive Due Process. These fictions exist because if they didn't, they would have to be invented.

A Little Background
The Bill of Rights, by its terms, only constrains the Federal government. The First Amendment starts off, for example, "Congress shall make no law...." In 1791, it was assumed that the greatest threat to individual liberty would be the Federal government; states were close to the people and could therefore be counted on to protect individual liberties.

By the time of the Civil War, we realized that this was not necessarily the case, and one of the many provisions included in the Fourteenth Amendment (ratified during Reconstruction) was a clause that appears—from text and history—to be designed to change the presumption in our Constitution that states could be counted on to protect liberty: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Under this clause, the Privileges or Immunities Clause, states would be prevented from violating the rights of their citizens.