ARTICLE CONTENTS INTRODUCTION I. "SUBSTANTIVE" AND "PROCEDURAL" DUE PROCESS: TERMINOLOGY AND TAXONOMY A. Terminology: "Substance" and "Procedure" B. Taxonomy: Categorizing Interpretations of the Due Process Clauses and Similar Provisions 1. Procedural Due Process a. "Positivist" Due Process b. "Judicial Intervention" Due Process c. "Fair Procedures" Due Process d. "Common Law Procedures" Due Process 2. Substantive Due Process a. "Vested Rights" Due Process b. "General Law" Due Process c. "Police Powers" Due Process d. "Fundamental Rights" Due Process II. "DUE PROCESS OF LAW" IN 1791 A. The English Background: Magna Carta, Coke, and Blackstone B. Pre-Ratification American Background 1. Colonial-Era Declarations of Rights 2. Early State Constitutions and Statutes C. The Legislative History of the Fifth Amendment D. Post-Ratification Interpretive Evidence 1. Evidence from Early Judicial Decisions 2. Evidence from Early Treatises E. Conclusions III. "DUE PROCESS OF LAW" IN 1868 A. Pre-Ratification Interpretive Evidence 1. Evidence from Pre-Ratification Judicial Decisions 2. Evidence from Antebellum Political Arguments Concerning Slavery B. The Legislative History of the Fourteenth Amendment C. Post-Ratification Interpretive Evidence 1. Evidence from Post-Fourteenth Amendment Supreme Court Decisions 2. Evidence from Early Post-Fourteenth Amendment Constitutional Treatises D. Conclusions IV. THE FIFTH AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSES AND THE PROBLEM OF CONSTITUTIONAL SYNTHESIS CONCLUSION INTRODUCTION
Critics of substantive due process have condemned the doctrine as, among other things, a "contradiction in terms," (1) an "oxymoron," (2) a "momentous sham," (3) a "made-up, atextual invention," (4) and the "most anticonstitutional branch of constitutional law." (5) Substantive due process has been criticized both as textually implausible (6) and as contrary to basic principles of democratic self-government. (7) But neither of these criticisms, standing alone, is sufficient to condemn the doctrine as constitutionally illegitimate. After all, even the most ardent textualists acknowledge that constitutional provisions may sometimes reflect specialized "term-of-art" meanings that are not readily apparent from the meanings of the individual words comprised therein. (8) And if a hypothetical constitutional provision were to embody language that was widely understood by the ratifying public to confer upon judges unfettered discretion to recognize and enforce unenumerated rights, the exercise of such discretion could hardly be condemned as constitutionally illegitimate. (9)
It is therefore unsurprising that, from an early date, criticism of substantive due process has focused principally on the contention that the doctrine is inconsistent with the original meaning of the Due Process Clauses of the Fifth and Fourteenth Amendments. (10) Beginning in the early twentieth century, legal scholars seeking to undermine support for the Supreme Court's then-prevailing Lochner-era substantive due process decisions (11) constructed a convincing historical narrative designed to demonstrate that the substantive conception of due process rights reflected in those decisions was a recent judicial innovation unsupported by the text or pre-ratification history of the Due Process Clauses themselves. (12) This historical critique proved remarkably effective--so much so that by 1985, even the United States Supreme Court, in a unanimous opinion, was prepared to concede that its expanding body of post-Lochner substantive due process decisions was "suggested neither by [the] language nor by [the] preconstitutional history" of the Due Process Clauses themselves and was "nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments." (13) The historical critique of substantive due process that predominated for most of the twentieth century was concisely summarized by Professor John Hart Ely, writing in 1980:
There is general agreement that the [Fifth Amendment Due Process Clause] had been understood at the time of its inclusion to refer only to lawful procedures.... Despite the procedural intendment of the original Due Process Clause, a couple of pre-Civil War decisions had construed the concept more broadly, as precluding certain substantive outcomes.... I am by no means suggesting that with these decisions the path of the law had been altered, that by the time of the Fourteenth Amendment due process had come generally to be understood as possessing a substantive component. Quite the contrary: [these decisions] were aberrations, neither precedented nor destined to become precedents themselves. (14) But as Professor Ely himself acknowledged, "Things are seldom so simple ... particularly where the intent of the Framers of the Fourteenth Amendment is concerned." (15) Within a few years after the publication of the statement quoted above, several works appeared questioning whether the pre-Civil War support for substantive due process was really as sparse as the doctrine's critics had long maintained. (16) In more recent years, this historical skepticism has been extended backwards as a growing body of scholarship has begun to question the long-standing consensus that the Fifth Amendment Due Process Clause was originally understood to encompass only procedural and not substantive rights. (17) Critics of substantive due process have paid little attention to this more recent generation of revisionist scholarship, continuing to condemn the doctrine as historically unsupported and constitutionally illegitimate. (18) As a result, the original meaning of the Fifth and Fourteenth Amendment Due Process Clauses is arguably more widely disputed today than at any time since the late 1930s.
It is therefore as auspicious a time as any to reexamine one of the central premises underlying nearly all modern discussions of substantive due process--the assumption that resolution of the substantive due process question, as a matter of the original meaning of the Fifth and Fourteenth Amendment Due Process Clauses, will be the same for both provisions. Though the Supreme Court has, at times, flirted with the notion that the two Clauses, having been "engrafted upon the Constitution at different times and in widely different circumstances of our national life," might be susceptible to "different constructions and applications," (19) the general attitude toward this "divergent meanings" hypothesis is better summarized by Justice Frankfurter's terse rejection of the proposition in Malinski v. New York: "To suppose that 'due process of law' meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection." (20) Academic commentary has tended to be similarly dismissive. (21) Indeed, the proposition that substantive due process might be consistent with the original meaning of one, but not both, of the two Due Process Clauses has received remarkably little serious scholarly attention. (22)
This Article seeks to fill this gap in the existing due process literature by reexamining the original meanings of both the Fifth and Fourteenth Amendment Due Process Clauses with a single question in mind: did the original meaning of each Clause, at the time of its enactment, encompass something that today would be recognized as "substantive due process"? My conclusion, after separately examining the textual and historical evidence regarding the original meaning of each Clause, is that one, and only one, of the two Clauses--the Fourteenth Amendment Due Process Clause--encompassed a recognizable form of substantive due process.
This Article proceeds in five parts. Part I deals with two preliminary matters intended to clarify my approach to the inquiry: (a) an examination of the precise contours of the modern conceptual distinction between substantive and procedural due process, and (2) a taxonomy of the various interpretations that have historically been applied to the two Due Process Clauses with a view to categorizing each as either procedural or substantive in nature.
Parts II and III, which compose the bulk of the Article, examine the textual and historical evidence regarding the original meanings of the Fifth and Fourteenth Amendment Due Process Clauses at the time of each Clause's respective enactment. (23) Briefly, the pre-constitutional and Founding-era evidence regarding the meaning of "due process of law" strongly suggests that that phrase most likely would have been viewed in 1791, at the time of the Fifth Amendment's ratification, as guaranteeing either that duly enacted law would be followed or that certain requisite procedures would be observed in connection with criminal or civil proceedings. (24) Between 1791 and 1868, when the Fourteenth Amendment was ratified, due process concepts evolved dramatically through judicial elaboration of due process and similar provisions in state constitutions, and through invocations of substantive due process arguments by both proslavery and abolitionist forces in connection with debates concerning the expansion of slavery in the federal territories. (25) As a result, by 1868 "due process of law" had developed additional, well-established substantive connotations as both a prohibition of legislative interference with vested rights and as a guarantee of general and impartial laws. (26)
Part IV considers two potential alternatives to the divergent meanings hypothesis proposed in this Article, both of which are grounded in notions of "constitutional synthesis." (27) The first alternative, which I refer to as the blind incorporation model, views the original meaning of the earlier-ratified Fifth Amendment Due Process Clause as conclusive evidence of the original meaning of the nearly identical Clause in the Fourteenth Amendment. Conversely, the second alternative, which I refer to as the reverse incorporation model, treats the...