An almost archeological dig: finding a surprisingly rich early understanding of substantive due process.

• Author: Weinberg, Louise

There exists a hitherto unnoticed early disquisition on substantive due process, setting out in 1840 a theory of substantive due process far more powerful than the bare-bones concept Chief Justice Taney would deploy seventeen years later in Dred Scott. This remarkable text has languished in obscurity until now because it is layered over and threaded through with matters extraneous to it. It exists buried within the report of an oral argument about a different question, (1) in a case, Holmes v. Jennison, (2) about a wholly unrelated problem. (3) The ancient relic has now been unearthed, in an almost archeological dig, by separating its fragments from the layered deposit in which it is submerged, as if lifting the clay from a potsherd.

With a single exception, (4) a 1993 paper on the Ninth Amendment, I have found no mention of this old argument of counsel in books or articles or cases. There appears to be no quotation or excerpt from it. As far as the Tarlton Law Library, Westlaw, or Google can discover--apart from the exception noted--the argument has no existence beyond the official reports of the case in which it appeared. And in the 1993 paper in which this argument of counsel is mentioned, there is no recognition of the existence of the surprisingly rich theory of due process discoverable within it.

The fons et origo of substantive due process is commonly supposed (5) to be Dred Scott, (6) the first Supreme Court case to strike down an act of Congress on a substantive due process ground. But scholarly examination of antebellum case law has shown that at least a skeletal concept of substantive due process, as it appears in Dred Scott, was already familiar at the time Dred Scott was decided. (7) Lawyers and judges understood, then as now, the half-substantive, half-procedural point that due process requires reasonable law. Arbitrary or irrational law is not due process. (8) Nor may good law be applied unreasonably, either by officials or judges. Nor may officials take other arbitrary or irrational action. Such acts or laws are not the process that is due. (10)

But writers have found little, if any, early intimation that due process was thought to protect fundamental rights. Where in our early cases can we find an understanding that the Due Process Clause of the Fifth Amendment protects fundamental, substantive liberties? Liberties not enumerated in the Bill of Rights?

To be sure, Dred Scott's due process might be read to have protected liberty as well as property, specifically implicating a right to travel. Taney declared, referring to the Fifth Amendment, that a law that has the effect of destroying a man's property, merely because he travels with his property to a place at which such property has been abolished by law, cannot be due process. (11) But Taney's was hardly an encompassing vision of fundamental unenumerated rights. Nothing in his terse pronouncement protecting property from confiscation by action of law necessarily implied specific protection even for property rights already mentioned in the Bill of Rights. (Today, of course, the Due Process Clause of the Fourteenth Amendment literally does protect against state violations of rights enumerated in the Bill of Rights, by "incorporating" them.) Rather, Taney was saying, in line with the most expansive general understandings of the time, that due process substantively protects against law that is arbitrary and unreasonable. Dred Scott's protection against unreasonable law also did not necessarily imply protection against violation of rights which, like the right to travel, are not enumerated in the Bill of Rights, but which may be as fundamental as those that are.

Yet identifiable fundamental rights, although unenumerated, would seem to call for judicial protection. The Ninth Amendment acknowledges the existence of such rights and cautions that the Constitution not be construed in disparagement or in derogation of them. In the antebellum period, unenumerated rights--rights to marry, to have children, to seek gainful employment, to have access to courts, and so forth--were sometimes assigned to a category of unalienable rights antedating the Constitution, the existence of which is acknowledged in the Declaration of Independence. (12) Or they were conceived as essential attributes or privileges of state citizenship. (13) This latter understanding, as regards United States citizenship, appears in Dred Scott, but not in its holding striking down an act of Congress. Rather, it appears in the passages in Dred Scott rejecting black rights by denying the possibility of black citizenship. (14) In Chief Justice Taney's admired early opinion in the Charles River Bridge case, a suggestion of substantive due process appears when he launches his Contracts Clause analysis with Magna Carta and the Due Process Clause." But until now, we have not found an antebellum discussion of substantive due process in the potent sense in which we understand the doctrine today. We have not found due process asserted in protection of unenumerated fundamental rights, not in that early period. The interest of the edited argument from Holmes v. Jennison, reproduced below, resides in the fact that it does seem to embody, as early as 1840, something like the modern, if still contested position, as it has developed since Meyer v. Nebraska, (16) that due process protects unenumerated fundamental rights.

Greatly complicating the discovery of this find is the fact that counsel making the argument, Governor Van Ness, (17) was not, in his own mind, making a substantive due process argument. Articulating a theory of substantive due process was not the end he had in view. His argument was not focused on the proposition that the Due Process Clause is substantive as well as procedural. He was not focused on making the points that in fact he did make: that the Due Process Clause is not only a limit on government power, and not only a shield against arbitrary governance, but also a positive protection of fundamental human rights. The original unedited passage from Van Ness's argument, which can be read in the Appendix, was about something else, and, understandably, no previous commentator has considered it in its possible bearing on the history of substantive due process theory. All that Van Ness did mean to argue in this passage was that the Due Process Clause of the Fifth Amendment should be applied against the states as well as the nation. This proposal was bold enough, a quarter-century before the Fourteenth Amendment's own...