NO ARBITRARY POWER: AN ORIGINALIST THEORY OF THE DUE PROCESS OF LAW.

• Author: Barnett, Randy E.

TABLE OF CONTENTS INTRODUCTION 1603 I. THE LETTER: THE ORIGINAL MEANING OF "DUE PROCESS OF LAW" 1606 A. The English Origins of the Phrase "Due Process of Law 1606 B. The "Due Process of Law" in 1791 America 1612 1. The Law of the Land 1612 2. Distinguishing a "Law" from a Mere Legislative "Act" 1619 C. The "Due Process of Law" in 1868 America 1623 D. The "Due Process of Law" Is a Substantive Procedure 1628 E. Competing Originalist Interpretations 1631 1. Nathaniel Chapman and Michael McConnell 1632 2. Ryan Williams 1635 3. John Harrison 1638 4. Christopher Green 1641 II. THE SPIRIT: IMPLEMENTING THE DUE PROCESS OF LAW CLAUSES 1643 A. The Spirit of Due Process of Law: Barring Arbitrary Power 1643 B. Identifying Good-Faith Exercises of Legislative Discretion 1647 1. Rationality Review: Means-Ends Fit 1650 2. Good-Faith Exercises of Legislative Discretion: Smoking 1654 out Pretext III. THE PROPER ENDS OF LEGISLATIVE POWER 1657 A. The Ends of Congressional Power: Few and Defined 1657 B. The Ends of State Legislative Power: General but Not 1661 Unlimited 1. The Origins of the "Police Power" Before 1868 1663 2. Police Power Doctrine After 1868: Securing the Rights 1666 Retained by the People 3. Protecting the Health, Safety, and Morals of the Public 1674 C. Beyond Securing the Rights Retained by the People? 1679 CONCLUSION 1683 A man... cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. --John Locke (1) INTRODUCTION

The Due Process of Law Clauses of the Fifth and Fourteenth Amendments are among the most frequently litigated and controversial provisions in the American Constitution. As Frederick Mark Gedicks has observed, "[i]t is difficult to imagine a more maligned constitutional doctrine than 'substantive due process,'" understood as the proposition that the Due Process of Law Clauses impose limits on the substance or content of federal and state statutes rather than merely guaranteeing a particular legal process prior to the deprivation of life, liberty, or property. (2)

The dominant originalist view has long been that due process of law is solely a procedural guarantee that does not constrain the content of legislation. (3) "Substantive due process" has been long denounced as incoherent babble on par with "green pastel redness." (4) In recent years, however, scholars have made fresh inquiries into the historical evidence and concluded that the case for some form of judicial review of the content of legislation under the Due Process of Law Clauses is weightier than initially supposed.

Among the most notable examples are Gedicks's own work undertaking to demonstrate that the original meaning of the Fifth Amendment's Due Process of Law Clause protects natural and customary rights against legislative deprivations; (5) Ryan Williams's investigation of the Fifth and Fourteenth Amendments, which concludes that the latter but not the former constrains the content of legislation in certain ways; (6) and Timothy Sandefur's argument that both clauses forbid legislation that has "no connection to a larger purpose or goal." (7)

Even scholars who continue to defend something resembling the once-dominant originalist interpretation of substantive due process have made important modifications of that view. For example, Nathan Chapman and Michael McConnell have argued that due process of law requires judges to determine whether a legislative enactment is in fact legislation or is instead an attempt to exercise judicial power. (8) On this "separation of powers" account, the due process of law guarantees a measure of judicial review of the content of legislation--if only to ensure that an enactment is general and prospective and does not abrogate common law procedural rights. (9)

In this Article, we revisit the original meaning of the text--the "letter"--of the Due Process of Law Clauses. We then apply our model of good-faith construction based on the clauses' original functions--their "spirit"--of barring arbitrary exercises of power over individuals. (10) We contend that the original letter and spirit of "due process of law" in both the Fifth and Fourteenth Amendments require legislatures to exercise their powers over the life, liberty, and property of individuals in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends. Further, the original letter and spirit of "due process of law" impose a duty upon both state and federal judges to make good-faith determinations of whether legislation is calculated to achieve constitutionally proper ends.

In this way, the "process" required by "due process of law" requires a judicial inquiry into the "substance" of a statute to assess whether an act of a legislature is a law. An act that deprives any person of "life, liberty, or property" (11) is only a law if it is within what Alexander Hamilton referred to as the "just and constitutional powers" of a legislature to enact. (12) At the federal level, legislation must be within one of the enumerated powers of Congress (including the incidental powers to which the Necessary and Proper Clause expressly refers); (13) at the state level, legislation must be within the so-called "police powers" of a state, which are not specified in the text of the federal Constitution. (14) In this way, our approach provides guidance to state court judges enforcing their own state constitutions as well as to federal judges.

In Part I, we consider the original meaning of the "letter" of "due process of law." In Part II, we consider its "spirit" or function. Part III identifies the just and constitutional powers of Congress, as well as those of state legislatures. A conclusion follows.

1. THE LETTER: THE ORIGINAL MEANING OF "DUE PROCESS OF LAW"

   1. The English Origins of the Phrase "Due Process of Law"

      There is not much dispute about the origin of the phrase "due process of law." Scholars with profound disagreements about the meaning of the phrase in our Constitution trace the phrase to Magna Carta, a series of concessions extracted at sword point from King John at Runnymede in 1215. (15) The crucial language is found in Chapter 39, which provides: "No free man shall be arrested or imprisoned, or diseissed or outlawed or exiled or in any way victimised... except by the lawful judgment of his peers or by the law of the land." (16) This language was directed against King John's notorious efforts to impose his will by avoiding the regular processes of the common law courts, and attempting to rely instead upon prerogative courts that lacked independent, presumptively impartial judges, and traditional procedures designed to protect individual rights. (17)

      In the fourteenth century, when King Edward III disregarded the promises made by King John, summarily punishing subjects outside the common law courts, Parliament codified a series of statutes that more particularly described what Chapter 39 entailed. (18) A 1354 statute linked "due process of law" to access to common law courts with judges and traditional proceedings: "No man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law." (19) In 1368, when Edward III failed to adhere to this prohibition, Parliament enacted yet another statute that specifically indicted the King for bringing subjects before his council and provided that "no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land." (20)

      Thanks in significant part to Lord Edward Coke's commentaries, the phrases "law of the land" and "due process of law" became synonymous. Coke invoked the Magna Carta's constraints on royal power to combat the absolutist claims of King James I, the first Stuart King. (21) His discussion of the due process of law and the law of the land in his Institutes of the Laws of England reveals an understanding of these two phrases that is concerned both with the personnel and procedures that are required before people may be deprived of what is rightfully theirs and with the legal authority that supported those deprivations.

      Coke interpreted Chapter 29 of King Henry III's now-definitive 1225 confirmation of Magna Carta (corresponding to Chapter 39 in the original), which provided:

      No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. (22) In interpreting this language, Coke drew upon a 1363 statute which stated "that no man be taken, imprisoned, or put out of his free-hold without process of the law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the common law." (23)

      It is clear that by "process" Coke meant a particular set of procedural rights and personnel that had long since come to be associated with the common law courts. (24) Yet there is more to Coke's exposition of "process of law" than "process"--there is also "law." The passage in which Coke identifies "law of the land" with "due process of law" reads thus:

      Nisi per Legem terrae. But by the law of the land. For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred...