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

Our Constitution's Due Process Clause has occasioned some of our most heated constitutional disputes. Many of these have involved the claim that the Clause incorporates a rule of "substantive due process."

This term, often used pejoratively, presupposes a distinction between "procedural" and "substantive" law. Substantive law, it may be said, provides the rules for defining rights or liabilities, hut procedural law establishes the method for determining whether an individual has such rights or liabilities. So. for instance, the substantive law might define the elements of an offense (e.g., kidnapping) and the punishment for that offense (e.g., deprivation of life or liberty), but the procedural law would determine the manner (e.g., trial by jury) whereby an individual is found to be liable and is then subject to such punishment.

As critics have noted, "substantive due process." like any non-procedural due process, seems a plain oxymoron, while "procedural due process" is a redundancy.(2) If so. the required "due process" cannot incorporate a standard for the underlying substantive law. The required "due process" would seem only procedural.

Despite the apparent force of this textualist objection, various contemporary scholars have offered extensive arguments to support the conclusion that the Due Process Clause, at least as set forth in the Fourteenth Amendment, originally incorporated a standard of good "substantive" law,(3) These claims have been, in turn, subject to extensive originalist critique by other scholars.(4)

In this essay. I aim to offer a small contribution to this debate. My approach will focus heavily on an analytical reading of the Clause's text, as its meaning is suggested by the words and deeds of those participating in the drafting, ratification, and initial interpretation of the Fourteenth Amendment (roughly 1865-1872). This essay will not treat in any substantial way the pre-1865 evidence nor, conversely, even begin to adequately engage with the massive body of subsequent case law and secondary literature.

This essay will have two main parts. First. I will present a brief account of the drafting and adoption of the Due Process Clause to indicate the purpose and general understanding of the measure. Second. I will undertake an onginalist analysis of the prohibition's text to identify how its various parts--"nor shall any state deprive." "any person." of "life, liberty, property." "without due process," and "of law"--incorporate limitations on state legislative powers as to substantive and procedural matters.

This essay's tentative conclusion is that the Fourteenth Amendment's Due Process Clause, according to its original meaning, does not incorporate any general rule governing substantive law. Nonetheless, by prohibiting state deprivations of life, liberty, and property, in the absence of lawful process, the measure does incorporate major restraints on the government on behalf of human rights. In particular.

(1) the prohibited de-privation incorporates a presumption that privy to the human person are the private rights of life, liberty, and property:

(2) that this presumption can be overcome only for some good reason or cause such as (a) the person's forfeiture, (b) the person's total incapacity to govern his body or his property, or to another's superior title to this property:

(3) that the finding of this cause generally requires a judicial trial involving the sort of allegation to which the person can give an "answer." and a judicial investigation, and perhaps would preclude any deprivation where the allegation or investigation would attenuated to, e.g.. (a) asserting the identity of the defendant (as in the enforcement of a bill of attainder), or (b) asserting the unpublished will or pleasure of some official or officials;

(4) that this proscess must he "of law," and thus, the process must

(a) be enacted or made by the legislature or other entity authorized to make laws on behalf of the community, but also:

(b) be promulgated so as to be adequately known by defendants (or at least their counsel), and therefore with a presumption favoring long-established, widely accepted procedures as opposed to legislative innovation:

(c) he a genuine rule and not a mere decree, that is. an enactment applicable to an unpredictable group of persons rather than tailored to identifiable persons, and;

(d) be for the public good, and not manifestly and solely for the private good of another (e.g., transferring an individual's property to another's private good).

On the other hand, neither this law" requirement nor any aspect of the Clause provides a more general ban against arbitrary, unreasonable, or otherwise unjust laws.


    When the Thirty-Ninth Congress met in December 1865. the Republican majority's leadership had already resolved to delay the admission of the former so-called "Confederate Stales" unless certain major evils were remedied, whether by statute, constitutional amendment, or otherwise.(5) The Joint Committee on Reconstruction was charged with proposing these conditions/' One of those evils was widespread lawless violence in those states. chiefly against free blacks, but also white unionists.7 Because southern white governments were either unwilling or unable to stem this violence, many believed that the federal government should have the authority and duty to secure the basic rights of body and property Most notably, Ohio Representative John Bingham proposed to the Joint Committee on Reconstruction a constitutional amendment to empower Congress to "make all laws necessary and proper... to secure to all persons in every State within this Union equal protection in their rights of life, liberty. and property."(8) In late January, the Committee bundled this proposal into a provision empowering Congress to secure not only these human rights, but also certain rights of citizenship. On February I. the Senate passed a resolution urging the Committee to consider a constitutional amendment "to declare with greater certainty" Congress' power to enforce "all the guarantees" of the existing Constitution.'' In apparent response, Bingham proposed, and the Committee agreed, to redraft the proposal to expressly correlate its two goals with two existing constitutional guarantees: (1) the Privileges and Immunities Clause of Article IV and (2) the Due Process Clause of the Fifth Amendment;

    The Congress shall have power to make all laws which shall be necessary and proper 10 secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and properly (5th Amendment).(10) The Committee then transmutted the measure to the full Congress.(11)

    With this proposal, the Committee suggested that full congressional enforcement of the Due Process Clause would involve the affirmative duty to secure persons' life, liberty, and property against private as well as governmental violence. This proposal might seem strange, for the Fifth Amendment restrained only governmental deprivation and, more specifically, only fedral-governmental deprivation.|: How could the enforcement of its Due Process Clause protect persons against private violence! Yet for Bingham and many Republicans, the prohibition in the Clause reflected a broader and more fundamental principle: that all men are equally endowed by God with rights of person and property, and should be secured in such rights against all violence, whether private or otherwise. For instance, in support of the 1862 bill to abolish the private violence of slavery in Washington. D.C., Bingham had invoked the Due Process Clause as a "clear recognition of the rights of all... no matter whether citizens or strangers; no matter whether rich or poor; no matter whether wise or simple; no matter whether, strong or weak" for "this new Magna Charta to mankind declares that the rights of all to life and liberty and property arc equal before the law. (13) Consequently, "the letter and spirit" of this provision was inconsistent with congressional toleration of slavery anywhere Congress had exclusive jurisdiction (as in the federal district).(14) In a similar vein, the whole Republican Party, in its I860 platform, had affirmed that the Clause meant that no person "should" he unlawfully deprived of life, liberty, or property by anyone and hence the Clause prohibited Congress from giving "legal existence" to slavery in the national territories.(15)

    After a cool reception in Congress--where many objected to the breadth of the congressional powers to be granted--he Committee (at Bingham's suggestion) redrafted the proposal so as to replace the grant of primary power to Congress with a primary prohibition on the States (with a merely supplemental enforcement power in Congress):

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or property, without due process of law. nor deny to any person within its jurisdiction the equal protection of the laws.(16) This prohibitory sentence had two independent clauses, separated by a semicolon; these clauses reflected the Committee's two goals of securing (I) certain rights of citizenship, and (2) the rights of life, liberty, and property of all persons. Refrained as a prohibition, the second measure now required a disjunctive, with a twofold compound predicate The two predicates (which jurists now call two "clauses"), properly separated by a mere comma,(17) corresponded to complementary duties of government vis-a-vis the rights of person and property: both the duty to refrain and the duty to act: that is, the duty not to take away unlawfully life, liberty, or property and the duty to provide (or not...

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