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

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No. 21-1045

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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

10

at 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