Texas Department of State Health Services John Hellerstedt, in His Official Capacity as Commissioner of the Texas Dshs v. Crown Distributing LLC America Juice Co., LLC Custom Botanical Dispensary, LLC 1937 Apothecary, Llc

Supreme Court of Texas
══════════
No. 21-1045
══════════
Texas Department of State Health Services; John Hellerstedt, in
his official capacity as Commissioner of the Texas DSHS
Appellants,
v.
Crown Distributing LLC; America Juice Co., LLC; Custom
Botanical Dispensary, LLC; 1937 Apothecary, LLC,
Appellees
═══════════════════════════════════════
On Direct Appeal from the
345th District Court of Travis County, Texas
═══════════════════════════════════════
JUSTICE YOUNG, joined by Chief Justice Hecht, Justice Devine,
and Justice Blacklock, concurring.
The Texas Constitution refers not to “due process” but to “the due
course of the law of the land.” 1 The Court today “conclude[s] that the due-
course clause does not protect the interest that the plaintiffs assert,” ante
at 2, and I agree. But what does that clause protect—and how does it do
so? We still do not really know, even as we approach the sesquicentennial
1 As I discuss in more detail below, see infra at 31, our Constitution’s Bill
of Rights has two due-course clauses. As in the Court’s opinion, my references
to “the due-course clause” are to Article I, § 19.
of our current Constitution. To the extent we have a due-course
framework, it is that the due-course clause means what the federal due-
process clause means . . . except when it means something else.
We are therefore fortunate that we can resolve today’s case with
comparative ease. As I describe in Part I below, regardless of the
standard that we apply, our judgment would be the same, which means
that we can avoid saying much about the scope of the due-course clause.
That condition will not last long, though. The very fact that the lower
court used the Texas due-course clause to invalidate the statute here
illustrates why we should soon expect cases that require more from us.
We must be ready when those cases come, and in today’s respite, we
should take the perspective of Aesop’s ant rather than his grasshopper.
To that end, in Part II, I explain why I believe that our precedents
do not go much beyond what has permeated most of our jurisprudence:
the unadorned assertion that the Texas due-course clause is essentially
the twin (the junior twin, to be sure) of the federal due-process clause.
Our recent decision in Patel v. Texas Department of Licensing and
Regulation endorsed this view, with a caveat: “[T]he Texas due course of
law protections in Article I, § 19, for the most part, align with the
protections found in the Fourteenth Amendment to the United States
Constitution.” 469 S.W.3d 69, 86 (Tex. 2015). But Patel considered only
how the courts should conduct the rational-basis test when the due-course
clause applies; Patel did not address whether the due-course clause
applied. The parties assumed that it did for purposes of summary
judgment and on appeal, and the Court therefore similarly assumed that
the due-course clause’s substantive reach extended at least as far as the
interest asserted in that case. See ante at 9 n.16. Accordingly, the
2
question of the due-course clause’s definitive scope necessarily remained
as open after Patel as it was before it.
I do not believe that we will have the luxury of kicking the can
down the road much longer. Unlike Patel, today’s case involves the
disputed question of the due-course clause’s scope. But we cannot
provide much of an answer because all roads lead to the same
destination: that the clause does not protect the asserted interest.
Future cases will require us to make harder decisions based on analysis
of what the due-course clause meant in 1876 and whether there is any
good reason for it to mean anything different today.
Thus, in Part III, I offer some preliminary discussion of one possible
reading of the due-course clause: that it operates as an important
procedural and structural limitation, not as a repository of distinct
substantive rights. This approach may remain faithful both to our
precedents and to the due-course clause’s text, yet it has received
relatively little analysis or discussion. Perhaps it is wrong, but I would
hesitate to reach a different result without thoroughly considering a
process-based reading of the due-course clause.
To develop this idea, I first accept the premise, so often stated
(even if superficially) in our cases, that our 1876 due-course clause was
meant to encapsulate the same principles as the 1868 federal due-
process clause. I then ask the question that we have never really
examined—what does such a tandem relationship really mean? It is at
least possible that the People of Texas in 1876 intended our State’s
government to be bound by fixed notions of due process regardless of
what U.S. Supreme Court cases might eventually say about the federal
clause. And it is at least possible that those who ratified our Constitution
3
thought that such a system would protect liberty more than a regime in
which judges are the chief expositors of rights through new
interpretations of the due-course clause. After all, far more than the
U.S. Constitution, the Texas Constitution is vigorous in directly
expressing a multitude of concrete, judicially enforceable rights.
In Part IV, I conclude with a brief discussion of the kind of tools
that I think will facilitate this important work. That coming endeavor,
I hope, will help us confirm, refute, or modify the hypothesis that I have
sketched. I am open to any outcome that faithfully reflects the original
meaning of our constitutional text.
It is hard to overstate the importance of getting the due-course
clause right. Reading the text too broadly risks judicial self-
aggrandizement. By larding more content into that phrase than it
properly contains, we would intrude upon the political branches’ roles
and threaten the vitality of self-government. Reading it too narrowly,
by contrast, risks sacrificing vital rights that the People have removed
from the quotidian realm of the political process—rights that courts
must protect from fleeting majoritarian whim.
I therefore write separately to describe the analytical process that
I think is necessary before we can give a reliable and predictable
meaning to this vital provision of our Constitution. Such analysis is
necessary because our cases, piled one on top of the other, have rarely,
if ever, paused to examine their foundations. We cannot keep building—
at least, not safely—without checking those foundations. I hope that in
coming years the lower courts, able counsel, amici, and scholars will
focus on the constitutional text, history, and structure so that we can
systematically articulate what the People of our State meant by “the due
4
course of the law of the land.”
I
Today’s holding breaks no new ground and relies on principles
that no party has challenged. I can therefore gladly join the Court’s
opinion and judgment, particularly because no due-course framework
would authorize the judiciary to enjoin the enforcement of the statute at
issue. As troubling as the current imprecision in our due-course clause
jurisprudence may be, it at least does not prevent us from resolving this
case. I thus begin by briefly sketching why I think that the result is the
same regardless of whether we apply any of four potential approaches:
• traditional rational-basis analysis, which has largely been the
same in federal and Texas courts;
• the “so burdensome as to be oppressive” test used in the
particular context identified in Patel;
• no-protectable-interest review based on our muddled
precedents about what qualifies as a liberty or property
interest that the due-course clause substantively protects; or
• no-protectable-interest review because the due-course clause
does not itself protect such substantive rights, but instead
ensures a rigorous procedure to protect substantive rights that
some other source of law recognizes.
A
Rational basis. Assuming for argument’s sake that the
ordinary rational-basis test applies, I find that this statute fully satisfies
it. When a challenge to legislation comes to court, the executive-branch
official who defends the law—whether the Attorney General or a locally
elected official or anyone else—need not prove up some precise “purpose”
5
or “interest.” The legislative branch’s work does not fall to the
judiciary’s ax merely because the executive fails to argue forcefully or
artfully enough. Anything else would threaten the separation of powers.
Valid legislation would fall because of litigation strategies (including the
possibility of purposefully weak defenses) in particular cases. 2 Such a
regime would place at risk the very concept of self-government because
the work of the People’s representatives could be erased if a single
lawyer in a single court fails to identify and prove an “interest” that
satisfies a single judge, whose factual determinations are generally
given great deference.
So the question here reduces to whether there is any rational
basis for the particular actions taken by the legislature. The answer is
surely yes. Every aspect of smokable hemp can be regulated to the point
of proscription. Appellees admit as much. Despite having no obligation
to do so, the legislature has taken various steps—some small, some
large—to loosen the law. It is not irrational for the legislature to be
tentative and to choose to proceed at a different pace than might seem
logical in the abstract. 3 Our Alcoholic Beverage Code is no model of
pristine logic but is instead the work of compromise and experience over
many decades (and the source of frustration for just as long). It would
be surprising indeed, then, if the law governing smokable products like
2I speak in this paragraph of general principles—I do not suggest that
any parties or lawyers in this case have done anything short of their duty to
this Court and to their clients.
3 Of course, as I further discuss below, the due-course clause is not the
entire Constitution. Governmental actions may violate other provisions
(including our equal-protection clause, see Tex. Const. art. I, § 3, which
prevents arbitrarily disparate treatment of our citizens). The only challenge
before us, however, arises under the due-course clause.
6
hemp would emerge fully formed and perfect, like Athena springing
forth from Zeus’ head.
The analogy to baby steps—tentative, faltering, occasionally
backward—is more reasonable, and better reflects how nearly all law
has developed. Even as the legislature eliminated certain restrictions,
therefore, it retained others—such as prohibiting the product’s
manufacture in Texas. If nothing else, it would be rational for the
legislature to strike the balance it has here—allowing purchase and use,
but not manufacture—to respect individual citizens’ rights while
refusing to countenance the creation of a smokable product that the
legislature may regard as harming the public health.
Beyond that, it would be entirely rational for the legislature to
account for the potential legal consequences of allowing the activities
that Appellees claim a right to undertake. At least sometimes,
authorizing conduct today makes it harder for the legislature to change
its mind tomorrow. See, e.g., House of Tobacco, Inc. v. Calvert, 394
S.W.2d 654, 657 (Tex. 1965) (finding a “due process” violation in part
because, in the specific context at issue, “once [a legislative privilege] is
granted, it cannot be taken away except for good cause”). As the Court
observes, Appellees make the argument that the regulatory program’s
history here requires the courts to view them as having a vested right
that cannot readily be restricted. Ante at 29–31. The Court properly
rejects that argument, which miscasts the regulatory history. Id. at 31.
The Court does not hold that a different regulatory history—one in
which the demanded activities had been allowed for some set period of
time—would necessarily require a different result (particularly given
the kind of activity at issue). Id. at 28. The point I make is that the
7
legislature’s only way to ensure that the State’s public policy would not
be bound is to avoid treading too quickly into uncertain terrain.
Hesitation, as frustrating as it sometimes may be, is therefore both
sensible and rational.
Under this standard, a baby-steps approach is at least enough to
preclude judicial invalidation of a statute under the due-course clause,
whether the State formally asserted the “interests” at trial or not.
B
So burdensome as to be oppressive. Assuming for argument’s
sake once more that it is the Patel standard that applies, I again do not
see how the legislation would fail to meet it. The legislature has no
obligation to authorize any of the desired commercial transactions at
issue here. Its choice to allow some previously forbidden conduct may
lead it in time to allow more. As a matter of law, it is not “burdensome”
or “oppressive” for the legislature to leave intact the challenged
restrictions. Unlike the eyebrow threaders in Patel, see 469 S.W.3d at
90 (disqualified from their profession absent compliance with objectively
burdensome regulatory mandates), the legislature has left room for
Appellees to participate in the affected industry; indeed, the legislature
has expanded the opportunities for them to do so. When Appellees
themselves recognize that the legislature could rationally have been
more restrictive, it is hard to see how the judiciary could have authority
to force the legislature to be less restrictive. 4
4 Even in the context of heightened scrutiny, for example, the U.S.
Supreme Court has held that an insufficient rationale for a distinction justified
imposing a greater restriction on everyone rather a lesser restriction on some.
Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698–1700 (2017).
8
I cannot see how the Court could deem the statute at issue to
violate Patel’s standard without dramatically changing that standard—
and at the same time dramatically increasing the judiciary’s role in
policymaking.
C
No protected interest. Another way to reach the same result is
the one that the Court follows: no longer assuming for argument’s sake
that one standard or the other applies, but instead concluding that
neither of them applies because no interest exists that the due-course
clause protects in the first place. If a given interest does not have
substantive protection, then it cannot be irrational or oppressive for the
legislature to prohibit that interest. Thus, even if we were to apply
rational basis to any governmental restriction, the outcome here would
be the same.
D
Due course as a procedural limitation. Another possibility is
that the due-course clause does not protect producing smokable hemp
for a fundamentally different reason: not that the due-course clause
offers no substantive protection for smokable hemp in particular, but
that it offers no freestanding substantive protection in general. That
approach might be linked most naturally to the due-course clause’s text—
that is, that any substantive interest that is otherwise unprotected by the
law may be extinguished so long as the deprivation follows the due
course of the law.
If—if—that reading of the due-course clause is correct, then this
case would be easy. For a court to find a substantive right that must be
protected, some exogenous source of law—not the due-course clause
9
itself—must provide that substantive sweep. Appellees here invoke no
other law.
Of course, the due-course clause need not be a font of substantive
law for it to protect Texans. The clause would still bite at the government
with teeth if the government denies its citizens the procedural fairness
that they are owed. See, e.g., Mosley v. Tex. Health & Hum. Servs.
Comm’n, 593 S.W.3d 250, 268 (Tex. 2019); id. at 270–71 (Blacklock, J.,
concurring) (“[A]rticle I, section 19 of the Texas Constitution prohibits
the government from affirmatively misleading people about their
procedural rights and then blaming them for not knowing better.”); see
also, e.g., Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 908–10 (Tex. 2021)
(noting the substantial procedural protection guaranteed by the due-
course clause despite the absence of substantive protections).
Thus, the due-course clause always remains in play even when
there is no protected underlying substantive interest. Actual enforcement
of a law by the government provides the clearest illustration. If the
government were to use this challenged law, for example, the
government could not disregard the due-course clause’s procedural
requirements. Even though the legislature has no obligation to permit
the manufacture of smokable hemp, the government may not, upon an
official’s whim or error, destroy manufactured products or impose a
punishment. For example, Appellees’ due-course right to prove that
their products comply with the law (whether because they do not include
hemp at all or because the hemp ingredients do not cross any statutory
red line) does not flow from a due-course protection of the right to
manufacture smokable hemp. Instead, the due-course clause operates
independently—to protect any citizen from an unfair trial or
10
governmental proceeding. That role remains powerful despite the
Court’s conclusion that manufacturing of smokable hemp is not itself
protected by that clause, and would remain powerful even if the due-
course clause had no substantive scope.
One serious, sensible, and obvious objection to this potential
reading of the due-course clause is its potential to leave some important
liberty interests substantively unprotected altogether. As I discuss in
more detail below, there may be less to this objection than meets the
eye. One fundamental difference between the U.S. Constitution and the
Texas Constitution is the comparative ease with which Texans can
enshrine and have enshrined specific rights into our Constitution. See
infra Part III.B. The Texas Constitution is far more overtly a liberty-
embracing charter than its federal analogue. Consequently, there is far
less need to find discrete rights within the phrase “due course of the law
of the land.” Thus, if—again, if—the due-course clause requires that
substantive rights be exogenous to the due-course clause itself, the
Texas Constitution has a far greater supply of such exogenous sources
of liberty than the U.S. Constitution.
* * *
I do not claim that these approaches are either exhaustive or
mutually exclusive. There may well be others that we should consider
in a proper case, and they may overlap to some degree. To the contrary,
my point is that we do not need to choose any particular approach
because none of them would lead to affirming the judgment below. That
strikes me as enough for today’s dispute.
We will not be able to be tentative or hypothetical in coming cases,
which will require far more from us. Before proceeding to discuss how I
think we should prepare to make the choice when that time comes, I will
11
explain why I think that, as surprising as it may be, the correct
construction of the due-course clause’s substantive scope remains a fully
open question in this Court.
II
The happenstance that all roads lead to Rome in this case still
leaves open, as to due course, the key question of when that clause will
protect a substantive right. The reason we should focus on this
question—or at least acknowledge that it is a question—is because it is
all too easy to build precedent upon precedent without checking the
foundation. In my view, we still lack a strong foundation, which is why
I regard the scope of the due-course clause to remain an open question.
A
As the Court correctly notes, see ante at 9 n.16, our recent decision
in Patel could not and did not reach that crucial first question of whether
the due-course clause even applies. In Patel, all sides assumed for
summary judgment and appeal that the due-course clause substantively
protected the threaders’ claimed rights. Patel “is a precedent of this
Court and warrants respect.” Mitschke v. Borromeo, ___S.W.3d___, 2022
WL 1510317, at *6 (Tex. May 13, 2022).
But what is Patel a precedent about? The one thing that Patel’s
litigation posture ensures is that our decision lacks any precedential
authority as to the clause’s scope or what the clause means. Instead, the
decision concerns the second question that arises in a due-course case:
assuming (as the Court in Patel had to do) that the clause applied, what
standard of review should the courts use? Even as to that more limited
question, the Court repeatedly confined its analysis to the challenged
statute’s context of economic regulation. See Patel, 469 S.W.3d at 80,
12
87. And while it held that “for the most part” the due-course clause
“align[s] with the protections found in the Fourteenth Amendment,” id.
at 86, the Court also concluded that, at least for as-applied challenges to
statutes like the one at issue there, the standard was higher. In such a
case, if the statute’s application is “so burdensome as to be oppressive,”
id. at 87, the courts will not enforce it.
All of that is to confirm that, by relying on the assumed answer
to the first question, Patel could not address whether the due-course
clause provides any substantive protection. In today’s case, unlike in
Patel, the government does challenge whether the clause’s substantive
scope reaches the claimed interest. But because the interest claimed by
Appellees would not be protected under any approach to due-course
jurisprudence, it turns out that this case provides us with barely more
opportunity than in Patel to draw meaningful lines.
That being said, I recognize that Patel does include some
discussion—relevant to its standard-of-review holding—that might
seem applicable to the threshold question that Patel could not decide.
Given the limited scope of the question presented, it is not surprising
that the parties in Patel did not thoroughly brief the original public
meaning of the due-course clause. It is no criticism of Patel—and I
disclaim any such criticism—to note that the Court had little with which
to grapple. 5 Considering the posture of the case, the Court went as far
5 The briefing that the Court did receive on the history and context of
“due course” came from an amicus—Professor Charles W. “Rocky” Rhodes’s
2014 State Constitutional Law Class. That brief provides an excellent example
of how an “amicus curiae”—in its true sense of “friend of the court”—can
greatly aid the Court in its consideration of murky legal questions. See Brief
of South Texas College of Law 2014 State Constitutional Law Class as Amicus
13
as it could in addressing the standard-of-review question.
It remains important, however, to confirm that we cannot lift
Patel’s discussion into the substantive context. Patel cited only five of
this Court’s cases from the forty-year period following the Constitution’s
1876 enactment. Whatever those cases may say about what standard
we should use when the clause does apply, none supports giving the due-
course clause a broad substantive scope.
The earliest of these cases was Milliken v. City Council of
Weatherford, 54 Tex. 388 (1881). Patel describes Milliken, which was
decided five years after the new Constitution’s promulgation, as
“exemplif[ying]” the “hasten[ing] development of substantive due
process.” Patel, 469 S.W.3d at 83. According to Patel, in Milliken, “[t]he
Court concluded that the city could not prohibit prostitutes as a class
from renting rooms because such action would be ‘unreasonable and in
contravention of common right.’ Although the court did not mention ‘due
course’ or ‘due process’ of law, its supporting citations included Article I,
§ 19.” Id. at 84 (quoting Milliken, 54 Tex. at 394). The fact that Milliken
“did not mention” the due-course clause is because—as Milliken’s other
citations reveal—the Court in Milliken was not focused on substantive
due process. Rather, it was focused on the division of authority between
municipalities and the State.
Milliken, for example, relies on Thomas M. Cooley, Treatise on the
Constitutional Limitations Which Rest Upon the Legislative Power of the
States of the American Union (4th ed. 1878). Cooley had a whole chapter
on due-process protections, id. at 435–527—but Milliken did not cite
Curiae, Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69 (Tex. 2016)
(No. 12-0657).
14
that chapter. Instead, it cited Cooley’s chapter on municipal
government. Milliken, 54 Tex. at 394 (citing “Cooley’s Const. Lim. (4th
ed.), 246.”). 6 After all, municipal power came from a highly limited
delegation via a charter as a corporation created by the State; for any
exercise of that power to be valid, it could not be divorced from its State-
approved objective. 7 That test is not about due course but about
municipal overreach.
The other authorities on which Milliken relies only reinforce this
focus on municipal limitations. Milliken’s other secondary source, in
fact, was John F. Dillon, The Law of Municipal Corporations § 259. 8
Dillon and Cooley, in turn, supplied Milliken with many of the cases it
cited, which likewise concerned municipal limitations. 9 Far from
6Cooley notes that municipal power was subject to several restrictions.
The most important of them, for present purposes, is that “[m]unicipal by-laws
must also be reasonable. . . . To render them reasonable, they should tend in
some degree to the accomplishment of the objects for which the corporation was
created and its powers conferred.” Cooley, supra, at 243–44.
7 See id. at 257–58.
8 Milliken does not identify the edition that it cites, but § 259 in the
1873 second edition is titled “Must not Contravene a Common Right.” In the
third edition (1881), § 259 concerns the validity of corporate meetings and does
not appear relevant.
9 For example, in Austin v. Murray, the court held that the town by-law
totally banning bringing in any dead for interment in the town was “wholly
unauthorized by the act of the legislature” empowering the town board to make
rules about interment of the dead. 33 Mass. 121, 124, 127 (1834) (emphasis
added). The other cited cases, with similar import, were Hayden v. Noyes, 5
Conn. 391 (1824); Dunham v. Trs. of Rochester, 5 Cow. 462, 466 (N.Y. Sup. Ct.
1826); Hayes v. City of Appleton, 24 Wis. 542, 543–44 (1869); and Barling v.
West, 29 Wis. 307, 315–16 (1871).
The lone cited case that did not concern a municipal ordinance is Chy
v. Freeman, 92 U.S. 275 (1875). A California statute gave authority to a
“Commissioner of Immigration” to “satisfy himself” that non-citizen passengers
15
fostering any sense that our Court believed itself to be embarking upon
a substantive-due-process endeavor, they suggest the opposite—that if
there was a forbidden economic (or other) encroachment, the main
problem was that the municipality had exceeded its delegated authority.
Patel’s next case was Houston & Texas Central Railway Co. v.
City of Dallas, 84 S.W. 648 (Tex. 1905), another municipal-ordinance
decision, there concerning railroads. These municipal cases show no
general right to substantive-due-process review against the State, but
reflect a check to ensure that authority delegated by the State is being
carried out according to the law of the State. To put it mildly, Milliken
and Houston & Texas Central are not foundational pillars for Texas due-
course jurisprudence.
Patel also cited Mellinger v. City of Houston, 3 S.W. 249 (Tex.
1887), describing that case as holding “that Article I, § 19 was not
violated under the facts of that case because of the [U.S.] Supreme
Court’s interpretation of the Fourteenth Amendment in a similar case.”
469 S.W.3d at 84. The similar case? Campbell v. Holt, which held that
there is no vested right in a statute-of-limitations defense. 115 U.S. 620,
628 (1885). Mellinger and Campbell held only that the respective “due
course” and “due process” provisions do not protect mere expectations of
a benefit under a statute until the interest has been acquired in hand.
A fourth case cited by Patel—some thirty-eight years after the
considered to have undesirable traits could not come ashore without a bond for
indemnification for the care of the person for two years. Id. at 277. It also
attached all kinds of processing fees to be recovered by an official under the
commissioner, some of which the official could keep personally. Id. at 278. The
Court held the state statute void because it invaded the power that the
Constitution expressly granted to Congress concerning “the admission of
citizens and subjects of foreign nations.” Id. at 280.
16
Constitution’s enactment—was not even a due-course case, but one
finding a violation of both the federal and Texas contract clauses. St.
Louis Sw. Ry. Co. of Tex. v. Griffin, 171 S.W. 703, 704–07 (Tex. 1914).
And in a fifth case from this Court that Patel cited—Mabee v. McDonald,
175 S.W. 676 (Tex. 1915), now thirty-nine years post-promulgation—the
Court explained that the federal and state due-course clauses were
essentially identical but that neither had been violated. Id. at 680,
695. 10
B
The foregoing analysis only confirms that Patel had no occasion
to consider the due-course clause’s substantive scope. Yet what about
our other precedents on the due-course clause? Mellinger and Mabee
reflect the gist of them—this Court’s frequent description of our due-
course clauses as largely synonymous with the federal due-process
clause. Mellinger came shortly after the due-course clause was ratified
in 1876, and for that reason alone warrants attention. The Court openly
stated that the due-course clause “must be held” to be coterminous with
the federal due-process clause’s restrictions as announced by the U.S.
Supreme Court. Mellinger, 3 S.W. at 252–53. Several decades later, the
Court again asserted that the federal due-process clause and our due-
course clause, “according to the great weight of authority, are, in nearly
if not all respects, practically synonymous.” Mabee, 175 S.W. at 680.
Our cases have repeatedly and recently drawn this link between
Patel states that Mabee was reversed on other grounds, 469 S.W.3d
10at 84, but the U.S. Supreme Court did reverse on due-process grounds (not
other grounds), see McDonald v. Mabee, 243 U.S. 90, 92 (1917). So beyond
formally being a dead letter, Mabee perhaps also inadequately understood the
Fourteenth Amendment.
17
the due-course and due-process clauses. Even Patel did so (with its
caveat) as to the proper standard of review, exactly one century after
Mabee. Patel, 469 S.W.3d at 86 (due course, “for the most part, align[s]
with” federal due process). The Court today acknowledges both the
traditional link between the due-course and due-process clauses while
reiterating that federal cases are not necessarily dispositive: “Because
the U.S. Constitution’s ‘due process’ clause uses language similar to the
Texas Constitution’s ‘due course’ clause, we may find guidance in the
federal courts’ due-process decisions.” Ante at 10 n.17 (emphasis added)
(citing Villarreal, 620 S.W.3d at 905).
As I see it, this Court’s cases about the relationship between the
federal and state clauses fall into three general categories:
• First, this Court has explicitly said that § 19 is “without
meaningful distinction” from the Fourteenth Amendment’s
due-process guarantee.
• Second, many cases have treated § 19 and the Fourteenth
Amendment as the same without expressly saying so or
appearing to give any thought to the question.
• Third, we have recognized the possibility of independent
meaning—in two cases, nearly a century apart.
The first category is familiar enough—it begins with Mellinger
and Mabee. Nine decades later, their express statements of federal
synonymity were revived in University of Texas Medical School at
Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“While the Texas
Constitution is textually different in that it refers to “due course” rather
than “due process,” we regard these terms as without meaningful
distinction.”) (citing Mellinger). We have repeated that language, or
18
language like it, frequently since Than. 11
The second category—cases that seemingly without analysis or
thought treat the two provisions (or indeed any other state’s comparable
provision, too) as interchangeable—may well have a causal relationship
with the first category. That is, the early decisions may explain why the
bar and the Court thought that there was little point in seeking to
distinguish the two clauses. Likewise, the accumulation of cases in this
second category may have caused the more recent decisions, like Than,
in which we started reiterating that the two clauses are essentially the
same. This second category of cases includes too many to list, but here
is a sampling: White v. White, 196 S.W. 508, 511–12 (Tex. 1917); State v.
Ball, 296 S.W. 1085, 1088 (Tex. 1927); Railroad Commission v. Texas &
Pacific Railway Co., 157 S.W.2d 622, 626 (Tex. 1941); House of Tobacco,
394 S.W.2d at 657 (from 1965); Tarrant County v. Ashmore, 635 S.W.2d
417, 422 (Tex. 1982).
Still other cases in this category reflect a sense of a general
common law of due process. Particularly in the pre-Erie era, our cases
often cited other states’ and the U.S. Supreme Court’s due-process and
due-course cases, implying that there was no particular expectation of a
siloed doctrine specific to each state’s constitutional text. See, e.g., Hurt
v. Cooper, 110 S.W.2d 896, 901–04 (Tex. 1937) (citing Idaho, Oregon,
South Carolina, Michigan, and District of Columbia cases); City of New
11 See Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 61 (Tex.
2018) (“Our due course clause is nearly identical to the federal due process
clause . . . .”); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019); E.A. v. Tex. Dep’t of
Fam. & Protective Servs., 587 S.W.3d 408, 408 n.1 (Tex. 2019); Wallace v. Tex.
Dep’t of Fam. & Protective Servs., 586 S.W.3d 407, 408 n.1 (Tex. 2019); Horton
v. Tex. Dep’t of Fam. & Protective Servs., 587 S.W.3d 12, 13 n.1 (Tex. 2019).
19
Braunfels v. Waldschmidt, 207 S.W. 303, 304, 309–11 (Tex. 1918)
(relying on U.S. Supreme Court and several states’ cases); Eustis v. City
of Henrietta, 39 S.W. 567, 569 (Tex. 1897) (citing several states’ cases for
the proposition that a law was void under § 19, the Fourteenth
Amendment, and Article VIII, § 13 of the Texas Constitution).
The third and by far smallest category includes two cases that
explicitly acknowledged at least a theoretical difference in scope
between § 19 and the Fourteenth Amendment. In Hutcheson v. Storrie,
we stated that “if the action now undergoing investigation is violative of
the constitution of the United States, it is more palpably a violation of
the plainer provisions of the constitution of the state of Texas.” 51 S.W.
848, 850 (Tex. 1899). Hutcheson did not explain what—if anything—it
meant for the Texas due-course clause to be “plainer” than its federal
counterpart. It took nearly a century for the Court to return to this
theme. In In re J.W.T., the Court stated that “our Texas due course of
law guarantee . . . has independent vitality, separate and distinct from
the due process clause of the Fourteenth Amendment to the U.S.
Constitution . . . .” 872 S.W.2d 189, 197 (Tex. 1994). 12 J.W.T. did not
evaluate § 19’s textual foundation and purported to be only a procedural
decision. Id. at 195. 13 And the issue at stake was the highly unusual
one in which a biological father was claiming the right of contact with
his biological child. Id. at 189–90. As then-Justice Hecht’s concurrence
12 Chief Justice Phillips, who otherwise joined the Court’s opinion, did
not join footnote 23, in which the Court suggested that the due-course clause
may have been broader than the due-process clause.
13 Justice Enoch’s dissent contended that “[u]nder the guise of denial of
procedural due course of law, the Court is in fact creating a substantive due
course of law interest . . . .” Id. at 200 (Enoch, J., dissenting).
20
stated, “parenthood is a constitutionally protected interest,” id. at 199
(Hecht, J., concurring in judgment). 14 This unusual area of law is not
typically one in which we can derive general principles. And without
much more support than these two cases, this category looks fairly
illusory, leaving the synonymity theory in front even if by default and
even if it lacks much reasoning or analytical support.
I fear that our repeated equation of due course and due process,
intoned so often without any thought or analysis at all, leaves us without
mooring. “A grave threat to independent state constitutions . . . is
lockstepping: the tendency of some state courts to diminish their
constitutions by interpreting them in reflexive imitation of the federal
courts’ interpretation of the Federal Constitution.” Jeffrey S. Sutton,
51 Imperfect Solutions 174 (2018). Yet it surely also is a “grave threat”
to our Constitution to resolutely insist on there being a difference if none
was intended. Perhaps that is a graver threat, since judicial imposition
of distinction that lacks any historical or textual support is an
encroachment on the rights of the People and the other branches.
III
One way or other, though, a reasoned decision about the due-
course clause’s scope will have to come, and soon. I will not endorse any
particular view of that question outside a case that squarely presents it,
and even then only with full briefing. But in anticipation of such a case,
14Justice Blacklock likewise has recently suggested that rights like the
parental bond with a child are so engrained in what it means to be a free
human being that they exist without separate expression. See In re A.M., 630
S.W.3d 25, 25 (Tex. 2019) (Blacklock, J., concurring in the denial of review)
(acknowledging that our law recognizes the protection of this bond, which
precedes the law itself).
21
I describe one potential resolution: the possibility, referenced in Part I.D
above, that the due-course clause was written to be an important
procedural limitation yet not a freestanding font of substantive rights.
This reading may be consistent both with precedent and text; it may
have the additional benefit of allowing the Court to use rather than to
discard our precedents equating federal due process and Texas due
course. This approach has received minimal discussion, however,
especially compared to the other three approaches that I discussed in
Part I. We could not responsibly resolve the larger question without
considering a process-focused reading of the clause, and I therefore
describe it here so that it will not be missed—or addressed too late—
when a proper case comes to us.
A
Under the due-course-clause-as-procedural-limitation approach,
it may well be that our 1876 due-course clause was meant to encapsulate
the same principles as the 1868 federal due-process clause. In truth, it
is easy to imagine that those who ratified the 1876 Constitution
expected this result, and there is some real evidence of it beyond this
Court’s precedents. 15 So for purposes of this discussion, I will take the
equation at face value and assume its accuracy (while remaining fully
open to that assumption being proven wrong).
That starting point, however, does not take us very far. The next
question is what effect changing federal due-process notions ought to
have on the Texas due-course clause. Even if the People of Texas
thought that the two provisions meant the same thing at the outset, I
15 See infra Part IV (further discussing the analysis of the historical
evidence).
22
suspect that the People intended our clause to keep that meaning fixed,
regardless of what federal courts might eventually say about the due-
process clause.
For the due-course clause to mean today what it meant in 1876
should seem normal, not odd. The consistent meaning of unchanged
legal texts should be a common feature of all legal enactments, not just
constitutions. See, e.g., New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539
(2019) (“[I]t’s a fundamental canon of statutory construction that words
generally should be interpreted as taking their ordinary . . . meaning . . .
at the time Congress enacted the statute.”) (internal citations and
punctuation omitted).
Thus, even if Texans in 1876 thought that they could enshrine
federal due-process values into our Constitution, it does not follow that
the due-course clause must forever march to the beat of the U.S.
Supreme Court’s drum. It was foreseeable in 1876 that the U.S.
Supreme Court might take a constitutional detour; must the Texas
Constitution go along for the ride?
I doubt it. The opposite is more likely true. The value in locking
down the original meaning of the due-process clause within the due-
course clause would be as a hedge against the possibility that the federal
understanding of the federal due-process clause would go astray. If
Texas courts must resolutely interpret the Texas due-course clause to
follow every federal fad, though, this hedge would be illusory. Why even
have a due-course clause if its meaning must yo-yo up and down with
the changing views of any five U.S. Supreme Court Justices? Nothing
useful could come from such mimicry. Texas courts already can and
do—indeed, must—uphold federal constitutional guarantees. See U.S.
23
Const. art. VI, § 2.
But as Chief Judge Sutton has put it, state courts “may interpret
their own constitutions to provide less protection than the US
Constitution offers.” Jeffrey S. Sutton, Who Decides?: States As
Laboratories of Constitutional Experimentation 141 (2022). Even in the
context of a state constitutional provision that adopts the original
meaning of a federal provision, that principle would suggest rejecting
the ratchet approach in which state constitutions must have at least the
substantive scope that the Supreme Court claims for the federal
Constitution, or perhaps more. In such a “skewed market,” “state courts
innovate only in granting more rights under their constitutions. The
only way in which state court federalism helps the country is when state
courts engage constitutional rights in both directions, registering
respectful disagreement with some federal decisions and creating
prompts for new decisions.” Id. at 142.
Staying the course on the original meaning of the due-process
clause would make sense if we conclude that those who framed and
ratified our Constitution never viewed the judiciary as empowered to
change settled constitutional understandings. How much less likely
would Texans in 1876 have delegated such power to Justices of the U.S.
Supreme Court? Mellinger expressed great deference to that Court’s
construction of the due-process clause, at least in dicta, see 3 S.W. at
252–53, but I see nothing in that statement to consign the due-course
clause to eternally chasing federal standards. 16
16The Court’s dicta seemed to suggest that the Texas Constitution’s
due-course clause could be understood with a reasonable degree of reliance on
then-contemporary U.S. Supreme Court cases. That may be another way of
24
B
Even if the due-course clause meant to embody the original
meaning of the Fourteenth Amendment’s due-process clause, at least
two further serious questions arise.
First, what did those who ratified the Texas Constitution in 1876
think that they were getting by locking down the federal due-process
guarantee? With full recognition of how fraught and contested that
question is, 17 I will continue the hypothesis for present purposes: that
due process, and thus due course, had a primarily procedural import in
1876. The case law briefly surveyed above and the structural aspects of
the Texas Constitution described below, along with the text itself, could
buttress such a reading. This hypothesis may well be proven wrong using
the tools discussed in Part IV below, but it surely warrants consideration.
Second, and relatedly, if the 1876 enactment anticipated a
powerful yet purely procedural role for the due-course clause, what
would that mean for our law—and for our liberty? At first blush, one
might assume a substantial change. I am less sure of that.
One can readily agree that Texans have inalienable rights,
whether included in a constitution or not. Then-Justice Willett’s elegant
suggesting that the meaning of the due-course clause was consistent with the
federal guarantee, fixed at that time. Such an understanding would not
authorize Texas judges to “discover” new rights lurking within its text.
17 Of course, this analysis will require historical assessments not only
of the Texas Constitution of 1876 but also the due-process clause enacted in
1868. The debates over the original public meaning of that provision continue
to rage, but I will resist the temptation to enter those debates here or to describe
the U.S. Supreme Court’s long and winding history of giving meaning to that
clause. In future cases, to the extent that it informs the meaning of the due-
course clause, I hope that parties, advocates, amici, and scholars will bring their
best arguments to bear.
25
and stirring concurrence in Patel provides a wonderful defense of the
inherent rights of us all. See, e.g., 469 S.W.3d at 92–93 (Willett, J.,
concurring) (“Liberty is not provided by government; liberty preexists
government. It is not a gift from the sovereign; it is our natural
birthright. Fixed. Innate. Unalienable.”). Texans tend to think of
rights being “recognized,” not “granted,” by our Constitution. The real
question, however, concerns the lawful role for judges. Basic to our
system is the principle that judicial power is limited to what the People
have delegated to the judiciary. The judiciary, while certainly different
from the policymaking branches, is still part of the government. And
like every other part of the government, the judiciary derives all its
powers from the People alone. The People adopted the due-course clause
and created a judicial system to enforce it. If the People placed only
procedural protections within that clause, the judiciary would have no
proper authority to say otherwise.
But the citizens of our State have many other tools at their
disposal, including other ways to authorize judges to vindicate
individual liberties. A procedural understanding of due course, in other
words, hardly means that the Texas Constitution could not robustly
protect liberty. To think that liberty can only come from judicially
mining substantive rights from the spare phrase “due course of the law
of the land” is an impoverished view of liberty and of our Constitution.
Quite unlike the federal Constitution, our State’s Constitution
already contains a rich repository of carefully written, detailed, well-
known, expressly stated, unambiguous individual liberties. Freedom of
speech, freedom of worship, protection from searches and seizures—all
of these and more are provided with much greater detail than their
26
federal analogues. See Tex. Const. art. I, §§ 6, 8, 9. Our People continue
to add to the Constitution, too—eight more amendments last year, and
two more just last month. “[O]ur Texas Constitution is quite lengthy
and frequently amended. When Texans want to provide substantive
constitutional protection . . . , they are not shy about saying so
expressly.” Villarreal, 620 S.W.3d at 909–10 (footnote omitted). 18 Our
Framers provided for these amendments. Thus, our Constitution also
recognizes far lesser-known rights, like public beach access, Tex. Const.
art. I, § 33, and the right to hunt and fish, id. § 34. The People added
this hunting-and-fishing right to our Constitution’s Bill of Rights only
six-and-a-half years ago, illustrating how active they are in articulating
the rights that Texas courts must enforce. 19
Even more obscure constitutional provisions reflect the People’s
ability to preserve rights without courts stretching to find them. In City
of Dallas v. Trammell, 101 S.W.2d 1009 (Tex. 1937)—a case that the
Court cites, see ante at 12—we held that public-retirement benefits were
not vested. The People responded by adding what is now Article XVI,
§ 66(d), which prohibits reducing or impairing public-pension-payment
amounts. Better appreciation of our entire Constitution would well
serve the development of our law.
18 The omitted footnote quantifies the difference: While “the Texas
Constitution contains approximately 86,000 words and has been amended
nearly 500 times since 1876,” its federal analogue “has a mere 4,543 words and
has been amended only twenty-seven times since 1789.” Id. at 910 n.6.
19 The proposed amendment went to the ballot as Proposition No. 6,
where it won by a sixty-two-point margin—81% to 19%. See Office of the
Secretary of State, Race Summary Report for 2015 Constitutional Amendment
Election, https://elections.sos.state.tx.us/elchist190_state.html (November 3,
2015). Now it is part of our fundamental law. See Tex. Const. art. XVII, § 1
(amendment process).
27
Under these circumstances, our distinct Texas constitutional
tradition seems to provide some evidence that the judiciary exists to
protect rights that are textually expressed, but not to discover new ones
in the due-course clause itself. A tradition in which judges dispense
rights from comparatively vague texts is not self-evidently more pro-
liberty than a tradition in which the People themselves decisively stand
at the helm.
With greater specificity comes greater clarity about when the
judiciary should act. A robust role for the judiciary, like the one
described in Patel by Justice Willett, can be every bit as powerful—
perhaps more—when the judiciary uses concrete provisions that directly
protect liberty.
If the hypothesis that the original meaning of “due course” (and
“due process”) was primarily procedural is right, saying so could advance
our law’s clarity and predictability, not to mention the core principles of
self-government. Our federal experience, with its comparative paucity
of textually expressed rights, has led to an instinctive resort to due-
process-type litigation. Such litigation prioritizes judge-centered
questions (like what deeper truths might be lurking within the textually
vague phrase “due course”). Moving away from that instinct would lead
toward text-centered questions about the meaning of the Texas
Constitution’s many and varied substantive provisions. It would also
encourage the People to remain vigilant about governing themselves
rather than assuming that courts will supply any desired deficiency.
Or, I cheerfully recognize, perhaps all of that is wrong. Maybe
something quite different should be the true doctrine of our due-course
clause. In other words, we have a lot of work to do. It is fortunate that
28
today’s case does not require us to plumb these depths. But we must be
prepared for the arrival of cases that demand far more from us. To that
end, I turn, finally, to some of the tools that will help us discern the
proper meaning of the due-course clause, whether it is the framework I
describe above or something fundamentally different.
IV
To determine what “due course of the law of the land” means
today, we need to know what those words meant to the Texans who
agreed in 1876 to incorporate that provision within our current
Constitution. Analyzing that question will facilitate our ability to
meaningfully and accurately describe the due-course clause’s proper role
within our constitutional order. I therefore conclude with some
preliminary and non-comprehensive thoughts about how that analysis
might unfold.
Perhaps most importantly, the history of the clause in our
Constitution warrants careful assessment. Neither this Court nor the
larger legal community were strangers to the phrase “due course” when
the 1876 Constitution came into force. That phrase was common
enough, not least because it was part of our prior Constitutions.
Examining the use of that phrase in the time leading to the current
Constitution’s ratification may provide considerable persuasive force
even if it is not necessarily dispositive.
In the run-up to the 1876 ratification, our cases seem to largely
use that phrase in a procedural sense. Sometimes the cases directly
applied current § 19’s predecessor (Article I, § 16 of the Texas
29
Constitution of 1869), 20 and sometimes they used the phrase in other
and more generic contexts. 21 Perhaps countervailing usages or
explanations would rebut the sense that there was any limitation to
procedural contexts. My point is that I hope we will learn, with much
greater certainty than we have today, how “due course” was understood
at the time of ratification. Likewise, it will be important to know if there
is a textually and historically reasonable basis to discern any departure
from whatever the existing usages were. 22
The records of the convention and ratification may provide
further evidence. No member of the convention or any other historical
figure warrants dispositive weight because of any personal views, but as
with the federal Constitution, the history surrounding the drafting and
ratification can provide overwhelming evidence of the original public
understanding of the text. 23 Importantly, these materials are likely now
20 See, e.g., Honey v. Graham, 39 Tex. 1, 8 (1873) (“[T]he incumbent can
only be deprived of his office in the manner pointed out in the above quoted
section of the constitution.”).
21 See, e.g., Evans v. Bell, 45 Tex. 553, 555 (1876) (“[H]e merely
stipulates thereby that the note is collectable in due course of law by use of
reasonable diligence.”).
22 For example, the 1869 due-course clause included “privileges.” Tex.
Const. of 1869 art. I, § 16 (“No citizen of this State shall be deprived of life,
liberty, property, or privileges, outlawed, exiled, or in any manner
disfranchised, except by due course of the law of the land.”). Only in 1876 was
the phrase “or immunities” added. Does that addition tell us anything new or
different about what “due course” itself means? Or does it simply confirm that,
to the extent something qualifies as a “privilege” (a separate inquiry), the state
cannot deprive someone of it absent compliance with the long-established
understanding of “due course” protections?
23 See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 386
(2010) (Scalia, J., concurring) (“Of course the Framers’ personal affection or
disaffection for corporations is relevant only insofar as it can be reflected in the
30
more accessible than ever before to the widest range of Texans who wish
to read them. 24
Moreover, any investigation into the original public meaning of
“due course of law” must acknowledge that the 1876 Constitution uses
that phrase twice in the Bill of Rights. Section 13 provides that “[a]ll
courts shall be open, and every person for an injury done him, in his
lands, goods, person or reputation, shall have remedy by due course of
law.” Indeed, every Texas Constitution since 1836 has included not just
one but at least two “due course” clauses—the Texas Republic’s
Constitution used “due course” three times. 25 Our cases typically treat
them as wholly distinct: “We have also held that Article I, § 13 and
Article I, § 19 are different provisions providing separate guarantees.”
LeCroy v. Hanlon, 713 S.W.2d 335, 341 (Tex. 1986). Section 13’s
reference to “due course,” for example, was not cited by any of the four
opinions in Patel and was cited by none of the briefs in this case, either.
Before we finally resolve what § 19’s due-course clause means, we
understood meaning of the text they enacted—not . . . as a freestanding
substitute for that text.”) (emphasis added).
24 The University of Texas School of Law’s Tarlton Law Library’s Jamail
Center for Legal Research has a wealth of primary sources available at, e.g.,
https://tarlton.law.utexas.edu/constitutions/introduction. Dedicated archivists
have, among other things, digitized Texas’ historical constitutions and the
journals and debates of the constitutional conventions, which are all available
through tabs shown at that link.
25 Repub. Tex. Const. of 1836, Declaration of Rights, cl. 6 (protection
“[i]n all criminal prosecutions” against being “deprived of life, liberty, property,
but by due course of law”); id. cl. 7 (“No citizen shall be deprived of privileges,
outlawed, exiled, or in any manner disfranchised, except by due course of the
law of the land.”); id. cl. 11 (“All courts shall be open, and every man for any
injury done him in his lands, goods, person, or reputation, shall have remedy
by due course of law.”).
31
should at least ask if the use of that exact phrase only six sections earlier
within the same Bill of Rights may shed any meaningful light. Likewise,
if contemporaneous or existing statutes used “due course” or defined
what “due course” would be for certain rights, that might be useful
evidence of accepted usage.
As alluded to above, other states’ constitutions frequently have
used the phrase “due course.” 26 There appears to be evidence that our
Framers and Ratifiers consciously drew from and sought to remain
basically consistent with this larger body of law. Treatises like Cooley’s
surveyed many cases from other jurisdictions; our (and other states’)
courts then used those treatises and cases. Particularly those sources
in common use by Texas courts may help reflect the prevailing
understanding of how due-course provisions properly operated. Usage
drawn from English law’s references to “due course” will likely be
informative, too.
What came soon after enactment may also point to the original
meaning. Cases, treatises, and legal publications could help sketch the
then-new text’s contours. Even if the text proves indeterminate, settled
post-enactment practice may prove instructive. See William Baude,
Constitutional Liquidation, 71 Stan. L. Rev. 1, 13–35 (2019) (explaining
the theory of so-called “liquidation” of constitutional provisions via
26 See, e.g., Ala. Const. of 1819, art. I, §§ 10, 14; Conn. Const. of 1818,
art. I, §§ 9, 12; Del. Const. of 1831, art. I, § 9; Ind. Const. of 1816, art. I, § 11;
Ky. Const. of 1799, art. X, § 13; Me. Const. of 1820, art. I, § 19; Miss. Const. of
1832, art. I, §§ 10, 14; Ohio Const. of 1802, art. VIII, § 7; Pa. Const. of 1790,
art. IX, § 11; Tenn. Const. of 1835, art. I, § 17. Usage in those and other states
may help us understand what “due course” traditionally required. That
understanding, in turn, may help us determine whether there is good reason
to depart from that tradition because of any Texas peculiarity, whether in our
existing law or in the constitutional drafting and ratifying process.
32
established practices); id. at 50–51 (considering the possibility of
applying liquidation to individual rights).
Such methods of analyzing the text are, of course, by no means
exhaustive. And as to them or others, advocates will need not start from
scratch. Scholars have been working to unravel the knotted meaning of
“due process,” “due course,” and “law of the land” at the time of the U.S.
Constitution’s Founding. See, e.g., Max Crema & Lawrence B. Solum,
The Original Meaning of “Due Process of Law” in the Fifth Amendment,
108 Va. L. Rev. 447, 462 (2022) (“Simply put, ‘course of law’ meant legal
procedure, covering the entirety of a legal proceeding from initiation
through to judgment and execution.”). Such work could inform, at least
as a starting point, the question of how the phrases had evolved by 1876.
And if the Fourteenth Amendment ends up as the end-all-be-all of the
due-course clause, then there is substantial scholarship there, too. 27 Of
course, it is not scholarship per se that matters—what matters is the
relevant and probative historical evidence that judges can use in the
non-academic context of setting boundaries in deciding actual cases.
27 I cannot survey the literature in this (already too lengthy) opinion,
but I will mention several examples while readily acknowledging how many
others merit such a mention. Ryan C. Williams argues the bulk of state-court
practice—twenty of the then thirty-seven states—had some version of
substantive due process with only two rejecting it. The One and Only
Substantive Due Process Clause, 120 Yale L.J. 408, 469–70 (2010). And Randy
E. Barnett and Evan D. Bernick have a new book complicating the picture. The
Original Meaning of the 14th Amendment: Its Letter & Spirit (2021). They
present substantive and procedural due process as a false dichotomy. By 1868,
they argue, “due process” had begun to mix with “law of the land,” and any
legislative act had to comply with the “law of the land” before it itself could
become “law.” Id. at 273–75. And Ilan Wurman defends the conventional
originalist view that due process of law was indeed about process, not
substance. See generally The Second Founding: An Introduction to the
Fourteenth Amendment (2020).
33
In the end, the purpose of my separate writing today is to
encourage careful consideration of all the questions and scenarios that I
have discussed and more. The stakes are too high for us to continue on
the path of least resistance. We cannot build on foundations that are
themselves merely assumptions. I thus echo Judge Oldham, who invites
an “iterative” and “rigorous” process by scholars, lawyers, judges, and
others so that, by the time a “constitutional question reaches [this]
court” such that we must make a hard decision, “the range of possible
meanings carried by [the due-course] clause is as narrowly
circumscribed as” the evidence allows. Andrew S. Oldham, On Inkblots
and Truffles, 135 Harv. L. Rev. F. 154, 172 (2022).
* * *
The linchpin in the Court’s decision today is that, to proceed any
further, a party must identify a vested right that the due-course clause
protects. See ante at 30–31. I am confident that, as to its conclusion,
the Court has not departed from our precedents. No party has asked us
to overturn those precedents. I am also confident that this result would
follow from any available approach to the due-course clause. With these
observations, I am pleased to join the Court’s opinion and its judgment.
Evan A. Young
Justice
OPINION FILED: June 24, 2022
34