AuthorGreen, Christopher R.
PositionSubstantive Due Process: Critical Safeguard of Fundamental Rights, Flawed Doctrine or Illegitimate Fiction


This paper identifies some problems for a strain of substantive due process lately in vogue one focused on discrimination A strong antidiscrimination reading of the Fifth and Fourteenth Amendments' Due Process Clauses is undoubtedly morally attractive, and not without some historical support. However. I will set out seven contrary clumps of historical and textual evidence. These arguments doom the view that a ban on the states or federal government "depriv[ing] any person of life, liberty, or property without due process of law" would have expressed. in the context of 1791 or 1868, the sort of ban on discrimination contained in Bolling v. Sharpe (2) or the Civil Rights Acts of I806. (3) 1870. (4) and 1875. (5) A constitutional ban on those sorts of discrimination--bans on racial discrimination related to the right to enter occupations. own land, attend integrated public schools, and the like--can only he found in the sort of equal-citizenship rule contained for the states in the Privileges or Immunities Clause" and for the federal government in a fiduciary rule treating all citizens as equal beneficiaries of the Constitution. (7) Non-citizens have constitutional rights under the Due Process Clause to traditional judicial proceedings before losing their life. liberty, or property, of course. (8) and the constitutional right under the Equal Protection Clause to be protected against violence to their persons and property and the right to sue when those interests are invaded. (9) as well as any statutory rights that Congress may grant them under the Commerce Power as part of "foreign nations." (10) Non-citizens do not, however, have a constitutional right against racial discrimination as such.

In March 1818. Daniel Webster presented an important argument to the Supreme Court, one of many he made defending Dartmouth College against New Hampshire's attempt to take it over. Quoting Edward Coke and then William Blackstone.

Webster asked the Court.

Have the plaintiffs lost their franchises by "due course and process of law''. On the contrary', are not these acts "particular acts of the legislature, which have no relation to the community in general. and which are rather sentences than laws''.? By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is. that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to he considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another. legislative judgements, degrees and forfeitures, in all possible forms, would be the law of the land. (11) A year later, the Supreme Court itself used the Contracts Clause rather than New Hampshire's law-of-the-land provision to rule in favor of Dartmouth As Ryan Williams recounts, however, Webster's definition was widely quoted, first by several cases in Tennessee. (12) and later by those in Arkansas. Iowa. Maryland. Michigan. Mississippi, and Texas. (13) Echoing Akhil Amar.

Williams has called these uses of Webster's definition "a recognizable form of substantive due process," (14) commenting, "This general law conception interpreted due process to require general and impartial laws rather than 'special' or 'class' legislation that imposed particular burdens upon, or accorded special benefits to, particular persons or particular segments of society." (15)'' That does not seem right to me; Williams will thus be this article's first target.

In February 1866. John Bingham proposed a rough draft of the Fourteenth Amendment which he claimed--quite implausibly--was merely a restatement of the Fifth Amendment. Just before his proposal was defeated in the House (postponed, never to be taken up again), Bingham made a final pitch in his inimitable style:

Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life, liberty or property without due process of law--law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations. (16) Two weeks later. Bingham explained why he wanted rights for non-citizens added to the Civil Rights Act of 1866:

If this is to be the language of the bill, by enacting it arc we not committing the terrible enormity of distinguishing here in the laws in respect to life. liberty. and property between the citizen and stranger within your gates? Do we not thereby declare the States may discriminate in the administration of justice for the protection of life against the stranger irrespective of race or color? Sir. that is forbidden by the Constitution of your country' The great men who made that instrument. when they undertook to make provision, by limitations upon the power of this Government, for the security of the universal rights of man. abolished the narrow and limited phrase of the old Magna Chart a of five hundred years ago. which gave the protection of the laws only to "free men" and inserted in its stead the more comprehensive words, "no person;" thereby obeying that higher law given by a voice out of heaven. "Ye shall have the same law for the stranger as for one of your own country " Thus, in respect to life and liberty and property, the people by their Constitution declared the equality of all men, and by express limitation forbade the Government of the United States from making any discrimination. This bill. sir. with all respect I submit, departs from that great law The alien is not a citizen You propose to enact this law. you say, in the interests of the freedmen. But do you propose to allow these discriminations to be made in States against the alien and stranger? Can such legislation be sustained by reason on conscience? With all respect to every gentleman who may be a supporter of it, I ask. can it be sanctioned? Is it not as unjust as the unjust State legislation you sock to remedy? Your Constitution says "no person," not "no citizen," "shall be deprived or life, liberty, or property." without due processor law. (17) Relying heavily on Bingham, particularly this speech, Kurt Lash has recently embraced a strong antidiscrimination reading of the Due Process Clause as the real basis for the Civil Rights Acts of 1866 and 1870. (18) One of Lash's purposes is to make room for his cnumerated-rights-only reading of the Privileges or Immunities Clause. (19 )That would not work if the Privileges or Immunities Clause treats constitutionally-unenumerated rights from the Civil Rights Act, like the rights to contract and testify, as privileges of citizens of the United States. A bigger Due Process Clause. however, makes more plausible a smaller (or at least more clearly hounded) Privileges or Immunities Clause. A broader, antidiscrimination Privileges or Immunities Clause, likewise. makes an antidiscrimination Due Process Clause less plausible. Lash, then, is our second target. Though Bingham is the one who proposed the language of Section One to the Joint Committee on Reconstruction on April 21, 1866. his views on due process turn out to be an unreliable guide to the meaning expressed by the text in the context of its adoption by the country. (20)

I should note some caveats in my hostility to substantive due process As Justice Gorsuch. Chief Justice Roberts, and Justice Thomas recently noted, the untimely death of the Privileges or Immunities Clause in 1873 produced "hydraulic pressures" expanding the Due Process Clause. (21) Unit the Slaughterhouse Cases are overruled, improperly expanded Due Process and Equal Protection Clause might offer the closest available approach to the fourteenth Amendment's original meaning. Also, the actual "traditional judicial process" meaning of the Due Process Clause would require courts in assess the merits of constitutional disputes more aggressively than they have since O'Gorman & Young v. Hartford fire Insurance (22) and Williamson v. Lee Optical (23): courts have a duty to clarify the law by imposing a burden of production. though not a burden of persuasion, on those who rely on governmental regulations or claim that they are justified. (24) Much of the "substantive" due process from Randy Barnett and Evan Bernick (25) is thus quite defensible, though I would put my hostility to Williamson in terms of the need for judges to perform their traditional role of clarifying initially unclear constitutional requirements, rather than a heavy distinction between mere legislation and genuine "law."

The next seven sections each set out a problem for antidiscrimination due process as a basis for Boiling and the Civil Rights Acts The first four problems arc broadly historical: racial discrimination against non-citizens alongside the Fifth Amendment (Problem I); racially-based slavery and limits on the rights of free black populations in the South alongside Webster-influcnccd readings of due process (Problem 2); Democratic hostility to the Civil Rights Acts alongside their enthusiasm for due process (Problem 31: and Matthew Carpenter's very explicit identification of the Privileges or Immunities Clause as the only source for equal occupational freedom (Problem 4). The other three problems focus on text: Republican treatment of racially based...

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