Substantive Due Process

Author:Laurence H. Tribe

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To say that governmental action violates "substantive due process" is to say that the action, while adhering to the forms of law, unjustifiably abridges the Constitution's fundamental constraints upon the content of what government may do to people in the name of "law." As the Supreme Court put the matter most succinctly in HURTADO V. CALIFORNIA (1884), "Law is something more than mere will exerted as an act of power.? [It] exclud[es], as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation ? and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."

Substantive due process thus restricts government power, requiring coercive actions of the state to have public as opposed to merely private ends, defining certain means that government may not employ absent the most compelling necessity, and identifying certain aspects of behavior which it may not regulate without a clear showing that no less intrusive means could achieve government's legitimate public aims.

The phrase DUE PROCESS OF LAW derives from King John's promise in MAGNA CARTA to abide "by the law of the land," as translated four centuries later by Sir EDWARD COKE. But the belief that even the sovereign must follow a HIGHER LAW can be traced further back still. Even before the Middle Ages, kings symbolically acknowledged their limitations when they accepted their crowns; royal coronations were religious rites in which the rulers supposedly received power directly from God. The medieval notion of a divine law that even the sovereign might not transgress lay at the heart of English COMMON LAW and of the barons' demands at Runnymede. By the eighteenth century, the idea was phrased in terms of a natural law philosophy of SOCIAL COMPACT between sovereign and citizen. Although individuals were thought to surrender certain freedoms to the state, other rights were considered so much a part of personhood that they lay outside the scope of the social compact. Indeed, protection of such rights had to be the aim of any valid government; a state would abrogate its essential function were it to deny its citizens these fundamental freedoms.

The most famous articulation of that social compact philosophy in American history is the statement in the DECLARATION OF INDEPENDENCE that "all men? are endowed by their Creator with certain unalienable Rights ? among these are Life, Liberty and the Pursuit of Happiness ? to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed." Although the Declaration of Independence does not, of course, use the words "due process," the notion that substantive limits may be implied from the character of our society and from our reasons for ceding coercive authority to the state underlies both that document and the system of law and politics structured by our Constitution. The Fifth and FOURTEENTH AMENDMENTS to the Constitution provide, respectively, that neither the federal government nor the states may deprive persons "of life, liberty, or property, without due process of law." The Supreme Court has long recognized that STATE ACTION that follows fair procedures and thus satisfies PROCEDURAL DUE PROCESS may nonetheless violate substantive due process by exceeding the limits of the proper sphere of government. In the name of substantive due process, the Supreme Court has accordingly struck down hundreds of statutes governing matters ranging from wages and hours to sexual conduct.

Some commentators have called "substantive due process" a contradiction in terms. But a dismissal on semantic grounds of the very notion of substantive due process is unwarranted. First, the very idea of "process" has often been taken to include concerns as to the nature of the body taking an action, and legislatures have at times been understood as structurally improper sources of particular kinds of public actions. Second, the Constitution guarantees "due process of law," and, as the passage quoted above from Hurtado suggests, the term "law" can itself be taken to imply various normative requirements. Third, even the purest "procedural" norms inevitably embody substantive choices. Finally, the choice of the constitutional phrase on which substantive review has been pinned is to a large degree accidental; the Fourteenth Amendment's "privileges or immunities" clause might have been a happier selection?but the real question is whether and how individual rights not explicitly guaranteed by the Constitution should be protected under that document taken as a whole, not whether courts have picked a felicitous phrase to describe that protective task.

The Constitution, however, does not specify the essential rights of personhood; the BILL OF RIGHTS lists only certain rights that particularly warranted articulation in 1791, and the NINTH AMENDMENT makes clear that the list is not to be taken as exhaustive. It is on a largely open landscape that courts, including the Supreme Court, have had to mark out our fundamental freedoms. The process has necessarily been one of continual redefinition, responding to the changing?one hopes evolving?values and concerns of the Justices and the nation. Due process, as FELIX FRANKFURTER noted, has a "blessed versatility."

Not until the adoption of the Fourteenth Amendment in 1868 did the Constitution explicitly require state deprivations of liberty or property to comply with "due process

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of law"; BARRON V. BALTIMORE (1833) had interpreted the parallel Fifth Amendment bar to limit only the federal government. Well before 1868, however, both the Supreme Court and various state courts had begun to articulate inherent, judicially enforceable bounds on governmental interference with individual autonomy. Insofar as these limits were announced and enforced by federal judges, such holdings occurred in cases not involving specific provisions of the United States Constitution but falling within the DIVERSITY JURISDICTION of federal courts because the opposing parties were citizens of different states. The liberties the courts protected were almost exclusively economic: the ability to contract as one wished and to do as one pleased with one's own property.

Thus, as early as 1798, Justice SAMUEL CHASE wrote in CALDER V. BULL that any law that "takes property from A. and gives it to B." is invalid as contrary to "general principles of law and reason," even if it is not "expressly restrained" by the Constitution. Justice Chase reasoned that such a law would usurp judicial authority if intended to correct an injustice A had done to B, and, if intended simply to improve matters, would not be "law" at all but would instead transgress limitations implied by the very notion of representative government: "the nature, and ends of legislative power will limit the exercise of it."

From time to time throughout the nineteenth century, the Supreme Court struck down state statutes it judged to exceed these inherent limits on legislative power. Typically, however, the Court left unclear whether the limits derived from the purpose and character of legislatures, as Justice Chase had argued; or from an ahistorical body of natural law; or from specific, if unnamed, provisions of the Constitution. In FLETCHER V. PECK (1810), for example, the Supreme Court invalidated a Georgia statute that attempted to revoke state land grants. Writing for the Court, Chief Justice JOHN MARSHALL explained only that the statute was rendered invalid "either by general principles which are common to our free institutions, or by the particular provisions of the Constitution." Similarly, when the Supreme Court in TERRETT V. TAYLOR (1815) struck down Virginia's attempt to divest the Episcopal Church of its property, it rested its holding on "principles of natural justice" and "fundamental laws of every free government," as well as on the "spirit and letter" of the Constitution.

Within a decade or so after the Civil War, however, the Supreme Court more clearly embraced a theory of implied limitations. When, in LOAN ASSOCIATION V. TOPEKA (1875), the Court invalidated a tax designed to finance a bonus for local industry, it did not mention the Constitution at all; exercising the common law power of a federal court sitting in a diversity case, the Court simply found the tax "purely in aid of private or personal objects" and hence "beyond the legislative power and ? an unauthorized invasion of private right." Echoing Calder v. Bull, the Loan Association Court declared that there are "rights in every free government beyond the control of the state" and that limitations on sovereign power "grow out of the essential nature of free governments."

Ironically, it was a notion of intrinsic limits on proper government action, including judicial action?a notion similar to that underlying the Court's invalidation of state and local laws in Fletcher v. Peck, Terrett v....

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