The Due Process Clause of the Fourteenth Amendment appears in the sources chiefly as a vehicle — the textual route by which other guarantees, enumerated and unenumerated, are made to bind state and local governments. Guests across three episodes treat the clause less as a rule of procedure than as a contested gateway: Sam Gedge describes it as one of two possible channels for applying the Excessive Fines Clause to the states Awaiting the Verdict in Timbs v. Indiana (2018); Ilan Wurman argues that the clause has been misread to support substantive due process and that incorporation itself was a mistake The Conservative Constitution (2021); and Evan Bernick traces a gradual line of decisions recognizing personal autonomy under the clause Evan Bernick on the Dobbs Draft (2022).
The clause as a vehicle for incorporation
In the Timbs v. Indiana episode, Bob Zadek introduces Sam Gedge as an associate attorney with the Institute for Justice and frames the case as one in which the Indiana Supreme Court declined to honor a federal right until the US Supreme Court got involved Awaiting the Verdict in Timbs v. Indiana (2018). Gedge describes the question his firm presented to the Supreme Court as a narrow one: whether the Excessive Fines Clause of the Eighth Amendment applies to the states through the Fourteenth Amendment, “through the Due Process Clause or the Privileges or Immunities Clause of the 14th Amendment.” He is explicit that the petition did not ask the Court to decide whether forfeiting Tyson’s car was in fact excessive, only the threshold question of whether the protection applies at all when state or local authorities take property.
Gedge also sketches what he expects to follow. In his telling, the Court would likely decide the gateway question and remand to the Indiana Supreme Court to take a first cut at what makes a fine or forfeiture excessive. He notes that the Supreme Court has said a fine or forfeiture is excessive if it is grossly disproportional to the underlying offense, but that this formulation supplies little more guidance than the word “excessive” itself, and that courts differ over whether to look at the financial status of the property owner and other contextual cues.
Substantive due process and its critics
Ilan Wurman, discussing The Second Founding: An Introduction to the 14th Amendment, sets out the doctrine in some detail. He notes that the Due Process Clause says no state shall deprive any person of life, liberty, or property without due process of law, and that the text sounds like a procedural limitation. Substantive due process, he says, is the idea that the clause is also a substantive limit on legislation — that some rights, even unwritten ones, are so fundamental the state cannot interfere with them without exceptional justification The Conservative Constitution (2021). He lists rights to use contraception in marriage, to abortion, and to same-sex marriage and same-sex sodomy as doctrines the Supreme Court has enforced under that concept, and says it is hardly clear that many of them are commanded by the Constitution.
Wurman’s own position is that the original meaning of the Fourteenth Amendment precludes substantive due process, which he says was made up in the 1870s and ’80s when the Supreme Court conflated antebellum doctrines that loosely resembled it. He also argues that incorporation was wrong, and that states should be able to experiment with Second, First and Fourth Amendment rights so long as they do not discriminate and treat their citizens equally. He acknowledges that modern doctrine disagrees with him on both points. In the model constitution he helped draft, he says, the rights section provides that the Due Process Clause shall not be construed to empower the national judiciary to impose unwritten rights on the nation, while the Bill of Rights is explicitly incorporated so that neither the United States nor any state may abridge its equivalents.
Bob Zadek’s framing in that episode is his own: he asks Wurman about fundamental rights, notes the Ninth Amendment’s role in capturing rights beyond those enumerated, and raises conscription and national criminal laws as matters that get his “dander up.” Those questions are Bob’s, not Wurman’s claims.
Unenumerated rights before and after Dobbs
Evan Bernick places the abortion right in a longer line of due process decisions. Long before Roe, he says, the Court had recognized that the guarantee of liberty in the Fourteenth Amendment’s Due Process Clause includes rights not specifically listed in the Constitution — the right to raise and guide the upbringing of one’s own children, for example Evan Bernick on the Dobbs Draft (2022). Over a series of cases, he says, the Court held that people have the right to choose whether to have children and to contracept or not, first for married couples and then for unmarried couples, with Roe as the next step: a right to choose whether to bear children once conceived. He characterizes this as a gradual progression through decisions recognizing a space of personal autonomy under the clause.
Bernick also describes the concern that followed the Dobbs draft: what happens to the other due process precedents recognizing unenumerated rights. He notes that the opinion says the other rights are safe, apart from the right to terminate a pregnancy, which he describes as unique in involving potentially the life of another person — but he adds that if the analysis the Court actually applies is applied to those other rights, there are questions about how good that promise will be.
In the same episode, Bob Zadek supplies the historical scaffolding himself: the Bill of Rights as the first ten amendments, enacted in 1791, Madison’s promise during ratification, and Madison’s objection that countless rights would go unlisted — answered, in Bob’s account, by the Ninth Amendment’s assurance that the omission of a right does not mean it does not exist. He then asks Bernick how the Supreme Court identifies unenumerated rights over time, and whether it simply makes them up as a super-legislature would. The excerpt ends before Bernick’s answer.
Across episodes: incorporation and unwritten rights
The excerpts show the same underlying question — what the Due Process Clause does — argued in more than one episode, but not a development from an earlier to a later position so much as a widening disagreement among guests. Gedge, in 2018, treats the clause instrumentally, as one of two possible vehicles for applying an enumerated Eighth Amendment protection to the states, and takes no position on unwritten rights Awaiting the Verdict in Timbs v. Indiana (2018). Wurman, in 2021, rejects both substantive due process and incorporation as a matter of original meaning, and would replace the latter with an explicit textual incorporation in a drafted constitution The Conservative Constitution (2021). Bernick, in 2022, describes the unenumerated-rights line as an established progression and asks what remains of it after Dobbs Evan Bernick on the Dobbs Draft (2022). The three guests do not engage one another’s arguments in these excerpts; the shift is one of topic and emphasis rather than of any guest changing position.
What the sources do not cover
The excerpts do not state the holding of Timbs v. Indiana or how the Supreme Court resolved the Excessive Fines Clause question, and they do not identify which clause the Court ultimately relied on. They do not give the outcome of the Dobbs decision or the fate of the other due process precedents Bernick discusses. The procedural history of the forfeiture case, the text of the model constitution’s rights section, and Bernick’s account of how courts identify unenumerated rights are all absent — the last because the excerpt ends before his answer.