ESSAY CONTENTS INTRODUCTION I. THE FIFTH AMENDMENT DUE PROCESS CLAUSE A. English Origins of Due Process of Law: Magna Charta and Coke B. Pre-Revolutionary English Disputes About Parliament's Power 1. The Expulsion and Disqualification of John Wilkes 2. The East India Company Debates C. Revolutionary Arguments That Parliament Violated the Law of the Land D. Early State Experiments with Legislative Supremacy 1. Isaac Austin's Case 2. Holmes v. Walton 3. Trevett v. Weeden 4. Bayard v. Singleton 5. Alexander Hamilton's Understanding of Due Process of Law E. The Constitution 1. General and Specific Provisions 2. The Due Process Clause II. THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE A. Due Process as a Limit on the Legislature's Power of Adjudication 1. Legal Principles 2. Illustrative cases a. The Randall Affair b. Calder v. Bull c. Dash v. Van Kleeck d. Society for the Propagation of the Gospel v. Wheeler e. Hoke v. Henderson f. Bloomer v. McQuewan 3. Categories of Impermissible Quasi-Judicial Acts a. An Act That Takes from A and Gives to B b. An Act That Takes Land for Public Use Without Compensation c. An Act That Revises a Charter or Revokes a Land Grant d. Laws That Reduce Procedural Protections for a Small Class of Citizens e. Wynehamer v. People f. Slavery and the Dred Scott Case B. Due Process as a Limit on the Legislature's Power To Abrogate Common Law Judicial Procedures C. Legislative History of the Fourteenth Amendment III. APPLICATIONS A. Defining "Liberty" and "Property" B. Due Process Against the Executive 1. The Steel Seizure Case 2. Excessive Delegations of Power to the Executive 3. "Substantive Due Process" Against the Executive 4. Detention Without Trial: Korematsu and Hamdi C. Substantive Due Process Against Legislatures 1. Lochner v. New York 2. Griswold v. Connecticut 3. Roe v. Wade 4. Planned Parenthood v. Casey and Lawrence v. Texas 5. Rational Basis Review D. Incorporation of the Bill of Rights E. Legislative Acts That Raise Due Process Concerns 1. Northern Pipeline Article III Cases 2. United States v. Lovett 3. Statutes That Are Void for Vagueness CONCLUSION INTRODUCTION
Scholars are showing renewed interest in the original understanding of the Due Process Clauses, and especially in whether that understanding supports the Supreme Court's modern substantive due process jurisprudence. Not long ago, most scholars accepted John Hart Ely's clever dismissal of the idea of substantive due process as an "oxymoron," on the order of "green pastel redness" (1)--with those of an originalist bent concluding that substantive due process is illegitimate (2) and those of a substantive due process bent concluding that originalism is wrongheaded. (3) Now, with originalist approaches to constitutional interpretation gaining greater adherence, even among progressives, (4) we are seeing more serious attempts to discern the "original understanding" of "due process of law."
Scholars who have considered the evidence generally fall into two camps. Some argue that "due process" meant nothing more than judicial procedure. (5) It therefore applied to the courts and, perhaps, to the executive with respect to prosecution and the enforcement of court judgments. Under this reading, due process did not apply to the legislature. Others contend that "due process of law" entailed judicial procedure and natural law norms such as reasonableness, justice, or fairness. (6) Due process thus applied to legislative acts that failed to live up to those norms.
In this Journal, Ryan Williams has recently offered a twist on the two prevailing interpretations of the historical evidence. He argues that few at the Founding thought that due process applied to the legislature, but that courts between the Founding and the Civil War developed a version of "substantive" due process. He concludes that the original understanding of the Fifth Amendment did not have a "substantive due process" component, but the original understanding of the Fourteenth Amendment did. (7) This leads to the intriguing possibility that, as a matter of original understanding, substantive due process is legitimate as applied to state but not to federal legislation. He is equivocal about whether the original understanding of the Fourteenth Amendment supports modern substantive due process, (8) as applied in Roe v. Wade, (9) Planned Parenthood v. Casey, (10) and Lawrence v. Texas. (11)
In this Essay we argue, contrary to each of these views, that by the time of adoption of the Fifth Amendment, due process was widely understood to apply to legislative acts, but that this practice did not resemble modern substantive due process. Legislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law procedural protections. These applications of due process to the legislature were based on common law principles about the nature of legislation as distinguished from judicial acts (not "natural law" as that term is commonly used), the constitutional separation of powers, and specific constitutional limits on the power of the legislature. Courts relied on different provisions depending on what constitution governed the case, but their decisions were consistently based on the same separation-of-powers and due process logic. (12) It is true that not everyone was always persuaded by every application of due process to a legislature during this period (for instance, Chief Justice Taney's opinion in Dred Scott v. Sandford (13)); nor are we. But all of them--even the questionable opinions--relied on separation-of-powers logic. None of them invalidated a general and prospective statute on the ground that it interfered with unenumerated but inalienable rights, was unreasonable, or exceeded the police power. It was not until well after the ratification of the Fourteenth Amendment that these notions took hold in the form of what we now call substantive due process. The original understanding of due process of law does not support it.
The meaning of "due process of law" and the related term "law of the land" evolved over a several-hundred-year period, driven, we argue, by the increasing institutional separation of lawmaking from law enforcing and law interpreting. From at least the middle of the fourteenth century, however, due process consistently referred to the guarantee of legal judgment in a case by an authorized court in accordance with settled law. It entailed an exercise of what came to be known as the judicial power to interpret and apply standing law to a specific legal dispute. Application to the executive came first, and reflected the Whiggish contraction of royal prerogative in favor of the supremacy of Parliament with respect to lawmaking, and in favor of the judiciary with respect to adjudication of the application of law to particular persons and cases. Fundamentally, "due process" meant that the government may not interfere with established rights without legal authorization and according to law, with "law" meaning the common law as customarily applied by courts and retrospectively declared by Parliament, or as modified prospectively by general acts of Parliament.
By the time the Fifth Amendment was enacted, everyone agreed that due process applied to executive officials and courts. It meant that the executive could not deprive anyone of a right except as authorized by law, and that to be legitimate, a deprivation of rights had to be preceded by certain procedural protections characteristic of judicial process: generally, presentment, indictment, and trial by jury. More controversially, we contend that, by this time, many informed American legal observers--including Madison, Hamilton, Jefferson, Iredell, Chase, and Tucker--also believed that the principle of due process extended to acts of the legislature in two narrow and specific ways: statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either in the legislative forum itself or in the course of subsequent judicial consideration.
The distinctive aspect of modern "substantive due process," in contrast, is its treatment of natural liberty as inviolate, even as against prospective and general laws passed by the legislature and enforced by means of impeccable procedures. (14) No significant court decision, legal argument, or commentary prior to the adoption of the Fourteenth Amendment, let alone the Fifth, so much as hinted that due process embodies these features. With two controversial exceptions discussed below, antebellum courts did not assert the power to declare that individuals "should have" certain rights that legislatures had denied to everyone. Every known application of the principle of due process involved the deprivation of rights (usually property rights; there are far fewer liberty cases) that had their source in positive law, whether in a written constitution, a statute, or the common law. Moreover, with the two exceptions noted, every known application of the principle of due process involved claims that the imperiled rights were being taken away without adequate process: they had been taken away by a court without proper legal procedure, by an executive official without prior authorization by a legislature or a court, or by a legislature through an act that was effectively a judicial decree. Unlike modern substantive due process decisions, courts prior to the adoption of the Fourteenth Amendment did not treat rights other than those enumerated in positive constitutional law as impervious to prospective and general legislative repeal.
We emphasize that our argument here is confined only to the Due Process Clauses, and only to their original meaning. Our argument is not based...