The Development of Substantive Due Process

• Author: Jack Fruchtman
• Profession: Professor of Political Science and Director of the Program in Law and American Civilization at Towson University, Maryland
• Pages: 99-114

American Constitutional History: A Brief Introduction, First Edition. Jack Fruchtman.

© 2016 John Wiley & Sons, Inc. Published 2016 by John Wiley & Sons, Inc.

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The Development of Substantive

Due Process

The United States experienced phenomenal economic growth in the

years following the Civil War. By 1900, it was the leading industrial

nation in the world, producing more steel and iron than the combined

efforts of Britain and Germany. From 1860 to 1900, the railroads grew

from 30,000 to 300,000 miles of track, while the population grew

from 31 million to 71 million. In 1860, just 16 percent of Americans

lived in urban areas but, by 1900, this had risen to nearly 40 percent as

people began to move from the country to the cities. The number of

states increased from 33 in 1860 to 45 by 1900.

Industrialists found sympathetic allies in the Republican Party,

which typically supported high tariffs, manufacturing‐friendly

banking regulations, and subsidies. They believed in the common‐

law doctrine of vested rights that had been introduced into

the Constitution by the Supreme Court in its first four decades.

Thedoctrine held that government ought not to impose arbitrar y

regulations that infringed on certain fundamental rights like an

owner’s enjoyment of his private property. When the states and even

the federal government began to place controls on the railroads and

other industries, many lawyers turned to the due process clause of

the Fifth and Fourteenth Amendments to defeat these efforts. For

the most part, they were successful.

100 The Free Market Republic, 1877–1937

Procedural Due Process

The phrase “due process of law” evolved over the years. Both the

Fifth and Fourteenth Amendments provide for due process: the

former binds the federal government as of 1791; the latter the states

as of 1868. The basic meaning of due process is rooted in the Magna

Carta of 1215 as “the law of the land.” The Magna Carta reinforced

baronial feudal rights and privileges when King John signed it after

the Battle of Runnymede. However, it was decidedly not a statement

of fundamental human rights, but it was a major step toward English

constitutionalism. For the first time the king officially acknowledged

the rights and privileges of others. Due process of law, as it developed

in the seventeenth and eighteenth centuries in the Anglo‐American

legal tradition, was understood as procedural due process, as the

Magna Carta mostly specified. American constitutional theory holds

that due process forbids the government from depriving any person

of life, freedom, or property – and note that the amendments do not

specify “citizens” or “free men,” only “persons” – unless they first

have had access to courts of law and all the essential safeguards that

courts offer.

The government may not execute, imprison, or fine defendants, that

is, deprive them of life, liberty, or property, until it provides them with

certain guarantees, many of which are embodied in the Fourth, Fifth,

Sixth, Seventh, and Eighth Amendments:

1. They must not be subjected to unreasonable searches and seizures

(Fourth Amendment).

2. Law enforcement officers must have good reasons for the

government to issue a warrant in advance of a search (Fourth

Amendment).

3. They must have access to legal counsel (Sixth Amendment).

4. They must have a speedy and public trial by jury (for criminal

cases, Article III and the Sixth Amendment; for civil cases, the

Seventh Amendment).

5. They must not be subjected to double jeopardy in that they will

not have to stand trial a second time after a court has acquitted

them of a crime (Fifth Amendment).