In defense of substantive due process, or the promise of lawful rule.

AuthorSandefur, Timothy
PositionThirtieth Annual Federalist Society National Student Symposium

"The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."

Cummings v. Missouri (1)

INTRODUCTION I. DUE PROCESS OF LAW AS A PROMISE OF LAWFUL RULE A. Law as the Opposite of Arbitrariness B. Means-Ends Rationality and the Constitution C. Arbitrariness and Government by Whim D. Rule by the Ruler's Self-Interest as an Illusory Principle E. Generality, Regularity, and Fairness F. The Redundancy Argument II. THE LOGIC OF SUBSTANTIVE DUE PROCESS OF LAW A. Procedural and Substantive Lawlessness B. How Implicit Limits Apply in Due Process Cases C. Incorporation as a Due Process Requirement III. PROBLEMS WITH A PROCEDURE-ONLY APPROACH TO DUE PROCESS LAW A. Procedural Lawfulness Makes Sense Only Within a Broader Normative Commitment Substantive Lawfulness B. Formally Evenhanded Rules Can Still Be Substantively Arbitrary C. Can Absolutely Any Order Be a Lawful Order? D. Substantive Due Process and Democracy CONCLUSION INTRODUCTION

Perhaps no doctrine in constitutional law has produced so much calumny as the theory commonly known as substantive due process. Supreme Court Justices left and right have denounced the idea, (2) professors have ridiculed it, (3) and for decades it has been a commonplace of law schools that substantive due process is an oxymoron (4) or a trick by which judges enforce their own policy preferences into law. (5) Indeed, there seems to be a sort of competition among detractors for the most colorful way of ridiculing the doctrine. On the face of it this seems odd; if substantive due process is such obvious folly, how is it that so many of the greatest minds of the Anglo-American legal tradition--from every ideological background--have subscribed to it? This Article is an effort to put away childish ridicule and to understand substantive due process on its own terms. Although there have been several excellent explanations and defenses of the doctrine--especially from a historical basis, showing that the idea was well known when the Constitution was ratified and at the time the Fourteenth Amendment was enacted (6)--there remains a need for a conceptual explanation, and this Article seeks to fulfill that need. What exactly is due process of law? Why do substantive and procedural aspects of due process overlap in the way they do? How does the due process of law requirement fit within constitutional law and with broader political and philosophical considerations?

The due process of law guarantee is an effort--one with deep roots in the history of western civilization-to reduce the power of the state to a comprehensible, rational, and principled order, and to ensure that citizens are not deprived of life, liberty, or property except for good reason. What sorts of reasons are "good" is obviously a normative question, but notwithstanding the arguments of many critics of substantive due process, the Due Process Clause invites--indeed, requires--courts and legal scholars to take seriously the idea that there are real answers to such normative questions. Though contemporary discourse often treats normative matters as essentially irrational, subjective preferences, (7) the Due Process Clause is based on the opposite premise: that law and arbitrary command, justice and mere force genuinely differ. And the idea of a lawful political order depends on recognizing that difference.

We cannot, in approaching the Due Process Clause, hope to avoid normative questions. The Constitution--from its opening commitment to the "Blessings of Liberty" (8) to its closing reference to rights "other" than those specified in its text (9)--is a thoroughly normative document, one that binds the government to act lawfully, where lawfulness incorporates norms of generality, regularity, fairness, rationality, and public-orientation. The Constitution is not a morally neutral framework for mere majority-rules decisionmaking. The Due Process Clause was written to ensure that government does not act without reasons, nor for insufficient, corrupt, or illusory reasons. When we reflect on the suffering of peoples who have been denied such a guarantee, and on the inestimable blessings it has given us (however imperfectly), we can see its value and how unworthy it is for lawyers to belittle, disregard, or mischaracterize the principle of due process of law.

  1. DUE PROCESS OF LAW AS A PROMISE OF LAWFUL RULE

    One cause of the controversy over the concept we now call substantive due process lies in the confusing terminology with which legal academics have approached the subject. The term "substantive due process" is a recent innovation. Nineteenth-century judges who employed this doctrine never used this phrase, which was devised in the 1940s by theorists trying to make sense of the application of the Bill of Rights to the States through the Fourteenth Amendment. (10) The nineteenth-century judges best known for using the doctrine simply referred to it as "due process of law."

    So, too, the tendency to refer to "substantive due process" or "the Due Process Clause" perpetuates confusion by leaving out the Clause's last two words, words that are crucial to understanding its importance: "due process of law." (11) The Framers used these words in the Fifth and Fourteenth Amendments for a reason--just as they used the word "due" for a reason. To refer to the Clause as the "Due Process Clause" implicitly suggests that it guarantees the citizen only the right to an unspecified procedure or ritual, rather than to a catalogue of substantive protections. The Clause's language actually guarantees that "[n]o person shall be deprived of life, liberty, or property without due process of law." (12) Much of the controversy in such famous "substantive due process" cases as Loan Association v. Topeka (13) or Lawrence v. Texas (14) centers on whether the process by which a citizen has been deprived of life, liberty, or property, is a process of law or merely a lawless assertion of power. (15) One cannot resolve that question without consulting normative considerations or by systematizing some formalistic approach that only focuses on procedure.

    1. Law as the Opposite of Arbitrariness

      The Due Process Clause, as the Framers were well aware, originated in the Magna Carta's "law of the land" provision. (16) The most famous early exposition of the idea of substantive due process in the U.S. Supreme Court came in Daniel Webster's oral argument in Dartmouth College v. Woodward, (17) when he was discussing the "law of the land" clause of the New Hampshire Constitution. Sir Edward Coke explained in his Institutes--the textbook on which such founding-era lawyers as Jefferson, (18) Adams, (19) Marshall, (20) and Madison (21) cut their teeth--that the terms "law of the land" and "due process of law" were synonymous. (22)

      Instead of absolutely prohibiting the king from depriving individuals of their rights, the Magna Carta's "law of the land" clause guaranteed that when the crown acted against an individual, it would do so in accordance with certain general, regular, traditionally accepted principles: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land." (23) This language promised that the king would act according the rule of law and not his own mere will.

      This distinction between willful government force and reasoned law echoes throughout the history of due process of law. Lord Coke built on the law of the land clause his belief that law is, in essence, reason itself: "a rational ordinance or directive judgment, commanding obedience to itself primarily because what it directs the citizens to do is reasonable and in that sense just," as opposed to "an act of will that derives its binding force from the threat of sanction...." (24) This was why Lord Coke believed that "the King hath no prerogative, but that which the law of the land allows him," (25) and that the king is not under any man, but under God and the law. (26) On this principle, his contemporary and sometime rival Francis Bacon agreed: "In Civil Society, either law or force prevails," he wrote. "But there is a kind of force which pretends law, and a kind of law which savours of force rather than equity. Whence there are three fountains of injustice; namely, mere force, a malicious ensnarement under colour of law, and harshness of the law itself." (27)

      The law of the land clause is not easily categorized as either "procedural" or "substantive," or as only applicable to the judiciary, legislature, or executive. Originating at a time before the clear separation of powers, the law of the land provision allows the king to deprive people of rights only under certain circumstances, and thus appears procedural: it guarantees only that the king must follow certain procedures before depriving people of their freedom or property. Yet the presence of those circumstances is constitutive of the lawfulness of the king's act, which means that those circumstances are also substantive: It is the presence of those circumstances, not the king's royal authority--the what, not the how--that gives the king's acts their lawful character. In other words, the lawfulness guarantee presupposes that there can be a difference between the ruler's act and truly lawful acts. Certainly this guarantee would be meaningless if the king's mere assertion sufficed to make any of his acts "the law of the land." This would make all of his acts self-ratifying, and render the clause surplusage.

      This gap between a ruler's act and truly lawful acts is bridged by certain principles whose presence gives the ruler's acts the character...

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