Taking from A and giving to B: substantive due process and the case of the shifting paradigm.

• Author: Orth, John V.

The Fifth Amendment prohibits the federal government from depriving any person of "life, liberty, or property, without due process of law," and the Fourteenth Amendment extends that prohibition to the states. State constitutions say the same thing, in one form of words or another.(1) Scholars have traced the phrase "due process of law" to Sir E4ward Coke's seventeenth century commentary on Magna Carta,(2) in which he used the words, claiming a Law French original,(3) to restate (and perhaps enlarge) the Great Charter's guarantee of freemen's rights against governmental invasion except per legem terre ("by the law of the land").(4) It Should be unnecessary to remark that a guarantee of due process is a procedural guarantee. Before a person can be deprived of life, liberty, or property, certain procedures must be observed, procedures designed to ensure fairness.(5) In its English origin, insistence on due process of law -- or the law of the land -- was designed to protect against executive (or judicial) overreaching.

Six hundred and fifty years after Magna Carta, in the last decades of the nineteenth century, due process in America had become a constitutional limitation on legislative power. No longer exclusively concerned with how the executive (or judiciary) proceeded, due process developed a concern with what the legislature did. Due process had acquired, in other words, a substantive dimension. United States Supreme Court Justice Samuel Miller had the historical perspective to recognize the contrast. In Davidson v. New Orleans(6) in 1878 he wrote on behalf of the Court:

It is easy to see that when the great barons of England wrung

from King John, at the point of the sword, the concession that

neither their lives nor their property should be disposed of by

the crown, except as provided by the law of the land, they

meant by "law of the land" the ancient and customary laws of

the English people, or laws enacted by the Parliament of

which those barons were a controlling element. It was not in

their minds, therefore, to protect themselves against the

enactment of laws by the Parliament of England.(7)

But, he continued, the Fourteenth Amendment directed attention to state action. "[C]an a State make anything due process of law which, by its own legislation, it chooses to declare such?"(8) he asked rhetorically, and answered on behalf of his brethren:

To affirm this is to hold that the prohibition to the States is of

no avail, or has no application where the invasion of private

rights is effected under the forms of State legislation. It seems

to us that a statute which declares in terms, and without more,

that the full and exclusive title of a described piece of land,

which is now in A, shall be and is hereby vested in B, would, if

effectual, deprive A of his property without due process of

law, within the meaning of the constitutional provision.(9)

Taking from A and giving to B had become the shorthand to describe what substantive due process was designed to prevent.

A similar case of taking from A and giving to B had been hypothesized nearly fifty years earlier by Justice Joseph Story in Wilkinson v. Leland(10) in 1829. In the actual facts of that case, the state of Rhode Island had attempted by statute to confirm title to Rhode Island real estate. The property had been sold by an executrix of an insolvent New Hampshire testator pursuant to authority granted by a New Hampshire probate court. Because the United States Supreme Court held that the title was valid without regard to the legislation, it did not need to decide the question of the constitutionality of the statute. In extensive dicta, however, Justice Story examined the issue nonetheless. Today, perhaps, the question would seem to be one of attempted legislative revision of a final judicial decision, a violation of separation of powers. To Justice Story the question involved an attempted taking without due process of law. Any such attempt, he thought, would be plainly unconstitutional: "We know of no case, in which a legislative act to transfer the property of A to B without his consent, has ever been held a constitutional exercise of legislative power in any state in the Union."(11)

From its original use to encapsulate what was wrong with legislative interference with individual titles, the phrase "taking from A and giving to B" became in the heyday of laissez-faire a powerful linguistic weapon against regulatory legislation. In its notorious 1911 decision in Ives v. South Buffalo Ry. Co.,(12) invalidating New York's pioneering Workmen's Compensation Act, the New York Court of Appeals used the phrase to clinch the case against the statute under both state and federal constitutions. Describing the statute's "central and controlling feature" to be that "the employer is responsible to the...