When explaining the original Constitution, James Madison said that striking an appropriate balance between federal and state power would give citizens “a double security,” because “the different governments will control each other.”188 Eighty years later, Congressman John Bingham argued that the Fourteenth Amendment’s Privileges or Immunities Clause would “protect by national law” the “inborn rights of every person” against “the unconstitutional acts of any State.”189 But the Slaughter-House Court removed the most potent protection against state overreaching and threw that double security out of balance.
3. In Defense of Substantive Due Process
Many scholars argue that after the 1873 Slaughter-House Cases obliterated the Fourteenth Amendment’s Privileges or Immunities Clause, the Supreme Court began utilizing the next clause in the amendment—which promises that no person will be deprived of life, liberty, or property without due process of law—to protect the rights that the Privileges or Immunities Clause was meant to secure. This, they claim, was the origin of what is today one of the most controversial of all legal doctrines: the theory of “substantive due process.” Although (or because) courts have often used this doctrine to protect individual rights, prominent intellectuals on both the left and right have denounced it as illegitimate—as a myth or a trick by which judges enforce their own idiosyncratic political views under the mask of law.
But all of that is wrong. Substantive due process is a legitimate part of our constitutional system, one with roots that reach back far before 1873. Although courts used the Due Process Clause to protect individual rights in the post–Slaughter-House era, they were not merely conjuring it as a substitute. The Due Process Clause, rightly understood, prohibits all arbitrary government action, including unjustified restrictions of individual liberty.
First, though, a point about terminology: the phrase “substantive due process” is relatively new.1 Nineteenth-century judges who developed the doctrine called it simply “due process of law.” The term “substantive due process” implies a rigid separation between substantive and procedural due process that has become a mainstay of American constitutional law, but, as we will see, that distinction makes little sense. Also, the modern habit of referring to “the Due Process Clause” worsens the confusion by leaving out two crucial words: “due process of law.” This clause promises that government will deprive us of life, liberty, or property only in accordance with law, and the question in such famous “substantive due process” cases as Loan Association v. Topeka2 or Lawrence v. Texas3 was whether the deprivations in those cases qualified as law or merely lawless exertions of government force. To understand what it means for the government to promise to act lawfully, we must start with basic principles.
The Law of the Land
The Due Process Clause originated in the Magna Carta, which declared that “no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will [the king] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”4 The phrases “law of the land” and “due process of law” are synonymous, and they mean that the ruler will treat citizens in accordance with the law, and not his mere will.
This distinction between law and mere will reverberates throughout the history of due process of law. The 17th-century jurist Sir Edward Coke built on it his belief that law essentially is reason; a law is a directive that derives its obligatory force from its underlying rightness, and not from the fact that failing to obey will incur punishment.5 This means that for a government act to qualify as law, it must comply with certain preexisting principles. That was what Coke meant when he said that the king is “not under any man, but under God and the law.”6 His contemporary, and sometime rival, Francis Bacon agreed: “In Civil Society, either law or force prevails,” Bacon wrote. “But there is a kind of force which pretends law, and a kind of law which savours of force rather than equity. Whence there are three fountains of injustice; namely, mere force, a malicious ensnarement under colour of law, and harshness of the law itself.”7
If there is a difference between law and mere force, then there must be some qualities or criteria that law possesses and that mere force lacks. It is these qualities, and not the simple fact that the ruler issues a command, that makes a command into a law. If this logic seems familiar, that is because Plato employed the same argument in his dialogue, the Euthyphro, in which Socrates asks whether the gods value a good thing because it is actually good, or whether it is only good because the gods value it.8 If the latter, then goodness is essentially arbitrary; the gods might just as easily value any other thing. But if the gods consider something good because it actually is good, according to some objective criteria, then those criteria should also be comprehensible to us, meaning that there really is such a thing as goodness, regardless of whether or not the gods value it. Likewise, if the ruler’s acts are law merely because the ruler chooses to act that way, then all law is essentially arbitrary. The king’s promise to comply with “the law of the land” would be meaningless, because anything he does would automatically be law anyway. But if there are objective criteria for determining which of the ruler’s acts are really law, then we can use those criteria to enforce the constitutional promise that government will act only in lawful ways.
The idea that not all of the ruler’s acts are law is a necessary condition of what we call the rule of law. Today, many legal scholars attribute the lawfulness of a government act either to its compulsory quality or to the simple fact that government has chosen to do that thing. But “law of the land” or “due process of law” make sense only if lawfulness is something other than the ruler’s say-so—if the lawful quality of a statute or a government action depends on its correspondence to independent criteria, and not on mere force. Whenever a society recognizes that not all of the ruler’s acts are law, then it must develop a way to determine which governmental acts are and are not lawful—and there must be a role for someone other than the ruler (a class of priests, an independent legislative body, or lawyers) to deliberate over whether or not the ruler has acted lawfully. That deliberation accounts for the rule of law because it implies that there are rules that bind the rulemaker; that the ruler’s acts are not law ipso facto.
Non-arbitrariness
The promise that government will not deprive a person of life, liberty, or property except through lawful actions is most fundamentally a prohibition against arbitrariness. “Arbitrary” is not an easy word to define, but we can recognize certain basic outlines. An arbitrary act is one that does not accord with a rational explanatory principle: one that has no connection to a legitimate purpose or goal. It may lack reasons to explain it, or be supported by illegitimate reasons, or reasons that would, with equal plausibility, justify the opposite act. An action is rational if it is a cost-efficient means toward some legitimate end. But an arbitrary action does not fit within a reasonable schedule of goals and methods; it is not really a means to any end. It exists of itself, with no (or with only an illusory) guiding principle or purpose. Arbitrariness is to law as mere will is to reason. It is not susceptible of persuasion, but depends only on force. It is essentially ipse dixit—the ruler says “because I say so.” The Due Process Clause is a promise that government will not take away the people’s rights simply because it says so, but only in accordance with principles that we recognize as marking the difference between lawful and arbitrary rule.
As Madison observed in The Federalist, people subjected to arbitrary, lawless rule are no better off than they were “in a state of nature, where the weaker individual is not secured against the violence of the stronger.”9 Consider two classic literary depictions of arbitrary political rule: Shirley Jackson’s short story, “The Lottery,”10 and Jerome Bixby’s “It’s a Good Life”11 (made into a famous Twilight Zone episode starring Bill Mumy). Jackson’s story is set in an unnamed
village, a pastoral hamlet in a timeless alternate universe, where the people assemble every year for the ritual of stoning to death a randomly chosen citizen. The system is procedurally evenhanded—victims are picked by drawing names from an old wooden box—but what makes the story so chilling is precisely the fact that there is no reason for the execution. It has just always been that way, and the villagers go on, year after year, enforcing the fundamentally arbitrary rule, annually killing a villager for no reason whatsoever.12 When Tessie Hutchinson’s name is drawn, and her neighbors close in upon her with rocks in their hands, the horror is not that there has been some formal or procedural mistake, but that there is no point to any of it. The people are subjected to a rule that deprives them of life arbitrarily. “It isn’t fair, it isn’t right,” are Tessie’s last words.13 But she is not the only victim. The other villagers are also vulnerable; they are haunted by the risk of inescapable, regular, utterly pointless annihilation. Life in the village may not seem unstable or unpredictable. But there is no rationale for the use of force, and the people can never know when or why their lives are to be sacrificed. They live under the lawless rule of mere power.
A different kind of terror dominates Bixby’s story. There, 10-year-old psychic Anthony Fremont has used his mind to vaporize all the world except 46 residents of a nondescript Midwestern town. Able to read the villagers’ minds and to punish them telekinetically for their bad thoughts, Anthony presides over a reign of terror: the townspeople must think only pleasant things, and praise him even when he tortures animals, kills loved ones, and destroys the crops on which their lives depend. His rule has no reason whatsoever to it, and one of the cruelest aspects of life in the village is each person’s hopeless effort to figure out what Anthony approves, or will approve—when, of course, his moods are childishly fleeting and incomprehensible. There is no guiding principle, and therefore no safety; every day is different and unpredictable—Anthony might make it snow, or make the television work, or transform animals into startling monsters. There is no hope of revolution, only the paranoia of unpredictable fear.
Different as Bixby’s and Jackson’s stories are, they are both visions of arbitrary rule, in which power is wielded according to no sensible principle. In “The Lottery,” the senselessness is regular, and violence comes every year; in “It’s a Good Life,” the terror is random and unpremeditated. But in both, power is wielded according to no principles, no explicable order; the rulers can provide no rational account for why they should be obeyed. Both villages are realms of utter arbitrariness, and though ruled with an iron fist, they are not ruled by law.
Rule by the Ruler’s Self-Interest as an Illusory Principle
It is easy to see how being governed by the ruler’s mere whim is arbitrary. But so, too, is government that serves the ruler’s self-interest. This is arbitrary because there is no reason why the ruler’s self-interest ought to be privileged over everyone else’s.14 Instead, rule for the self-interest of the ruler is rule according to “because I say so”—rule by ipse dixit.
In Politics, Aristotle distinguished between governments aimed at the benefit of the ruled and those that aim only to profit the ruler.15 Those ruled for the benefit of all he classified as monarchies, aristocracies, or polities, depending on whether they are ruled by one, or a few, or the many. He likened these governments to a family, which is governed “for the sake of the ruled”—that is, for the better flourishing of all concerned. But states that ruled for the ruler’s own benefit he classified as tyrannies, oligarchies, or democracies. These he likened to slavery because just as the master rules the slave for his own benefit, not for the good of the slave, so these societies are governed for the sake of the ruler—whether it be a single tyrant, a cadre of oligarchs, or a vulgar, self-interested mob.
Aristotle’s pejorative use of the word “democracy” seems strange to modern eyes, but his point was to distinguish healthy majority-rule societies from lawless mob rule. Governments “that look to the common benefit” are “correct,” meaning they are actually governments—“whereas those which look only to the benefit of the rulers are mistaken and are deviations from the correct constitutions” and are not really governments at all. In other words, the basic ground for distinguishing between these types of political rule is whether they abide by a rule of law that respects the values of equality and individual autonomy. Corrupt governments are “like rule by a master,” in which the people, like slaves, are considered inferior to the ruler, and the ruler asserts a right to rule others for his own benefit. But a “correct constitution” is “a community of free people.” It is a group of basic equals who associate for the benefit of all—to enable each to flourish. Their commonwealth is not premised on any primordial hierarchy in which some have the right to obedience from others.16
Although Aristotle was not a classical liberal like America’s Founding Fathers, both he and they started with the same basic principle:17 that legitimate, lawful rule depends upon a community of basic equals who agree in a sort of contract to submit to reasonable rules for protection against violence and fraud. Law is not submission to arbitrary command for the ruler’s benefit. Each person’s basic right to freedom entitles him to an equal say in the formation of the state and to equal treatment by that state. This baseline of equal liberty is not a mere assertion, but a logical presumption from which deviations are allowed only when justified by rational argument.18 And the presumption against deviations means that the ruler cannot simply demand compliance with his whims. Where no good reason justifies treating people unequally, such treatment is arbitrary, and where no good reason entitles the ruler to limit a person’s freedom, he may not do so.
If the ruler’s power is legitimate only insofar as he can give good reasons for rule, then what is a good reason? John Locke answered this with a reasonable-person argument: it would be unreasonable for people to subject themselves to arbitrary rules or to agree to become mere tools for the king or the majority. This would put them “into a worse condition than the state of Nature, wherein they had a Liberty to defend their Right against the Injuries of others.”19 The minimum conditions of legitimate, lawful rule are that the state’s coercive powers must be used according to general guidelines, and must rationally promote the public good, which means government must protect the people’s rights regularly and fairly. The rule of law establishes an order that deserves compliance because it respects everyone’s freedom: the purpose of law “is not to abolish or restrain, but to preserve Freedom,” Locke wrote. “For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law.” Contrary to what some people claim, freedom does not mean “Liberty for every Man to do what he lists: (For who could be free, when every other Man’s Humour might domineer over him?)” Instead, it means “a Liberty to dispose, and order, as he lists, his Person, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own.”20
While the dystopian fantasies of Jerome Bixby and Shirley Jackson depict memorable examples of lawless rule, an even more jarring picture of a society ruled for the ruler’s self-interest is found in Freidoune Sahebjam’s book, The Stoning of Soraya M., based on a true story and made into a film in 2008. The village of Kupayeh is governed by a perverted mullah, Sheik Hassan, and a complaisant mayor, Ebrahim, who together allow Soraya’s abusive and hypocritical husband, Ghorban-Ali, to frame her for adultery and execute her so he can marry another woman.21 Unlike in “The Lottery,” this execution does serve a purpose, but that purpose is merely to satisfy the desires of the men in power. Soraya and the other women in the village cannot navigate the patterns of rule because there are none—and thus no safety.
After making a fortune in blackmail by exploiting his job as a prison guard, Ghorban-Ali becomes bored with Soraya and makes a pact with Sheik Hassan: Hassan will see to it that Soraya agrees to a divorce, allowing Gh
orban-Ali to marry the girl with whom he is now infatuated. In exchange, Hassan will have Soraya for his own wife. When Soraya refuses, the two frame her for having an affair with another man and execute her. Sheik Hassan is a murderer and thief whose “master[y] at the art of obsequiousness and the art of scheming”22 has given him a “visible ascendancy over the mayor.”23 Unchecked by the cowardly Ebrahim, Hassan becomes the village’s ruling power, and his house becomes “a kind of law court where the mullah played all the roles, those of both prosecutor and public defender. And since any service rendered had its price, it was not long before the sheik had managed to acquire a few acres of land, half a dozen head of cattle, some poultry. . . . All this was done by perfectly legal means, with the full accord of the mayor and his deputies.”24 With nothing more than truth on her side, Soraya cannot hope to resist the power of these men; robbed of the opportunity to defend herself, she retreats into silence and dies for no good reason at the hands of the brutal villagers, all “according to the rules of law.”25 Here we see the realization of Locke’s and Madison’s warnings. In a society like Kupayeh, where coercive power is wielded arbitrarily, people like Soraya have gained none of the benefits that are supposed to emerge from the establishment of political rule. On the contrary, she is worse off than she would have been in a state of nature, because she is intimidated by the emblems of apparent legitimacy and disarmed by the government’s official powers.
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