The oxymoron reconsidered: myth and reality in the origins of substantive due process.

AuthorEly, James W., Jr.

The view that the due process clauses of the Constitution impose substantive restraints on governmental power has long been a subject of contention. It has become an article of faith in some quarters that due process pertains entirely to matters of procedure. Thus, John Hart Ely maintained: "[W]e apparently need periodic reminding that `substantive due process' is a contradiction in terms--sort of like `green pastel redness.'"(1) Other observers have also derided substantive due process as an "oxymoron."(2) Similarly, Robert H. Bork considers substantive due process to be "a momentous sham" that "has been used countless times since by judges who want to write their personal beliefs into a document."(3)

Of course, substantive due process has not been so easily banished from the constitutional dialogue as these dismissive comments suggest. As historians are well aware, federal and state courts relied on a substantive interpretation of due process in the nineteenth and early twentieth centuries to vindicate economic liberty.(4) Following the political triumph of the New Deal, however, the Supreme Court abandoned meaningful due process review of economic and social legislation.(5) Yet, far from disappearing, substantive due process has been revamped in the late twentieth century to safeguard a variety of non-economic rights.(6) This dichotomy in the type of rights accorded due process protection is highly suspect.(7) It flies in the face of the language of the due process clauses as well as the views of the framers, and raises another set of issues. On what principled basis can one decide which rights are so basic as to warrant due process scrutiny? Some liberal scholars have endeavored to distinguish "bad" judicial solicitude for economic rights from "good" defense of personal liberties.(8) On the other hand, conservatives tend to reject outright most forms of substantive due process; this approach at least has the virtue of consistency. Justice Antonin Scalia, a critic of substantive due process in many policy areas, has sharply questioned the incoherent use of substantive due process to downgrade economic rights:

The picking and choosing among various rights to be accorded "substantive due process" protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called "economic rights" (even though the Due Process Clause explicitly applies to "property") unquestionably involved policymaking rather than neutral legal analysis.(9) Still another group of scholars, spearheaded by Richard A. Epstein and Bernard H. Siegan, has urged a renewed judicial commitment to due process protection of economic rights.(10)

It is evident that thinking about the substantive dimension of the due process requirement has fragmented. All of the participants in the debate, however, have one point in common--they draw upon the sanction of history to support their position. Unfortunately, the grasp of the historical record displayed by many observers is skimpy. Indeed, a large number of the scholars who address the concept of substantive due process seem more concerned with constructing a grand theory of constitutional law than with carefully examining the past.

Consider, for example, the analysis of the due process clauses provided by Bork. According to Bork, Dred Scott v. Sandford marked "the first appearance in American constitutional law of the concept of `substantive due process.'"(11) This account is flawed in two signal respects. First, by linking a substantive reading of due process to the discredited Dred Scott case Bork seeks to taint all subsequent applications of the doctrine. But due process received only passing attention by Chief Justice Roger B. Taney. Indeed, a leading historian has concluded that "Taney's contribution to the development of substantive due process was therefore meager and somewhat obscure."(12) The problems with Dred Scott must be found elsewhere. The opinion does represent unbridled judicial activism. In Dred Scott the Supreme Court unnecessarily plunged into the heated debate over slavery in the federal territories by invalidating the Missouri Compromise. The decision triggered a political firestorm, hurt the prospects for a compromise solution, and undermined the prestige of the Court. The virus of Dred Scott, however, was not a substantive reading of due process but a failure of judicial statesmanship. Having resolved that blacks were not citizens, Taney could have disposed of the case on jurisdictional grounds and never addressed Scott's status as a slave. Second, Bork's explanation of substantive due process totally ignores the evolution of the doctrine in the antebellum state and federal courts. This omission skews his understanding of due process and illustrates the danger of concentrating solely on the Supreme Court in assessing the course of legal history. Bork is simply wrong in identifying Dred Scott as the fountainhead of substantive due process.(13)

Other critics of substantive due process (even some conservative jurists and scholars) rely on the long-outdated Progressive historiographical view of the courts at the turn of the century as bastions of laissez-faire. The picture drawn by the Progressives, and historians who follow in their footsteps, too often veers into caricature.(14) Put briefly, Progressive historiography holds that judges invented a substantive reading of the due process clauses during the post-Civil War period to safeguard the interests of business from legislative regulation.(15) In so doing, judges frustrated the public will and substituted their own economic judgments for those of elected lawmakers under the guise of enforcing constitutional values. Despite a growing body of revisionist literature challenging the premise of the Progressive interpretation, the legacy of Progressive legal thought has proven remarkably durable.(16)

As might be expected, the Progressives took particular aim at substantive due process doctrines. They insisted that a substantive reading of the due process clauses subverted their original meaning as simply a guarantee of procedural regularity. For instance, Louis B. Boudin advanced a narrow reading of due process. He maintained that the concept of due process initially operated as a restraint on the executive and judicial branches but did not limit legislative authority. Further, Boudin asserted that the due process requirement pertained only to matters of procedure.(17) Edward S. Corwin likewise declared: "All that `due process of law' meant originally was a fair trial for accused persons ...."(18) Under this analysis, of course, due process would not amount to much as a limit on governmental authority.

In this paper I propose to take a fresh look at the origins of substantive due process and to offer an alternative interpretation of the due process norm. I investigate the evolution of the concept of due process as a restraint on government in American jurisprudence before the Civil War. Moreover, I argue that due process was fashioned in part to protect the rights of property owners, and that judicial decisions placing property in a subordinate constitutional category are historically unsound.

One should start this analysis by questioning common terminology. It bears emphasis that the phrase "substantive due process" is anachronistic when used to describe decisions rendered during the nineteenth and early twentieth centuries. Indeed, courts did not differentiate between procedural and substantive due process until the New Deal era.(19) The unitary understanding of due process shattered in the late 1930s, but no Supreme Court justice employed the term "substantive due process" until 1948.(20) Although I employ the term in this paper for convenience, I recognize that it is misleading and betrays a tendency to read history backward.


Scholars agree that the federal and state due process clauses are derived from the Magna Carta granted by King John under duress to rebellious nobles in 1215. Chapter 39 of the Magna Carta provides:

No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by lawful judgment of his peers and by the law of the land.(21) This chapter was designed as a guarantee against arbitrary actions by the king.(22) The clause was directed against royal authority for an obvious reason. The modern distinction between legislative and executive aspects of government had not yet emerged. In 1215 there was no Parliament or other legislative body in England, and the king exercised the law-making function.(23) Disagreements about the substantive dimensions of due process center on the meaning of the "law of the land" clause. Although a matter of some dispute among historians of early England, the expression "law of the land" is sufficiently comprehensive to include substantive law as well as procedural safeguards.(24) It was an effort to reassert customary law in the place of arbitrary royal command.(25)

Magna Carta was repeatedly reissued in later years and confirmed by King John's successors. A 1354 statute by Parliament first used the phrase "due process of law" in interpreting Chapter 39.(26) The historical debate over the meaning originally assigned to the terms "law of the land" and "due process of law" is beyond the scope of this paper. It should be stressed, however, that there is early support for the view that these expressions were 1) essentially synonymous, and 2) embraced a substantive as well as a procedural component.(27)

Although Magna Carta remained a symbol of the rule of law, it did not loom large in English law during the Tudor period. Sir Edward Coke played a vital role in the seventeenth century revival of Magna Carta as a means to check the Stuart monarchs. Since Coke's writing was highly influential in colonial America, his interpretation of Chapter 39...

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