Original Intent and Substantive Due Process
Another persistent criticism of substantive due process is that the authors of the Constitution did not intend the Due Process Clause to bar lawmakers from depriving people of rights—they only meant to require courts to abide by traditional procedures. For judges to restrict legislators’ powers through the Due Process Clause is a modern idea, it is often said, and not a part of the Founders’ original intent. But this is also wrong.
First, the historical evidence shows that the Constitution’s authors were familiar with what we today call substantive due process. In fact, when the Constitution was written, common-law courts protected individual rights almost exclusively through this theory. Then, as now, Britain had no written constitution. The 1628 English Petition of Right and the English Bill of Rights of 1689 were considered mere statutes, which articulated some—but not all—of the principles of lawfulness. Courts relied upon them when determining whether or not a government action qualified as the “law of the land.” When British courts protected individual rights under the unwritten constitution, they did so by holding that violations of those unenumerated rights did not qualify as “law” and therefore could not be enforced.
Such decisions were commonplace in the 17th century, when colonization of North America was under way. In 1615, for example, an English court ruled that a Parliamentary act allowing certain cases to be tried without a jury was void because “an Act of Parliament made against natural equity, as to make a man Judge in his own case, is void in it self, for jura natruae sunt immutabilia [the laws of nature are unchangeable] and they are leges legum [laws that limit legislation].”17 Courts in America applied the same principles. In one remarkable 1657 case—130 years before the Constitution was written—Justice Samuel Symonds of Massachusetts Bay Colony invalidated a town’s attempt to force people to pay for the construction of a home for the town’s minister. According to the “rules of the learned in the lawes of England,” wrote Symonds, an ordinance “repugnant to the fundamentall law . . . is voyd.” That fundamental law gave officials only “a derived power in trust,” and “not such an unlimited domination over other mens estates or persons.” If town leaders could, “by pretence of authority or without,” give away citizens’ property “when in their prudence” they thought it appropriate, then “no man hath any certaynty or right to what he hath.” This would be “against a fundamentall law in nature,” since “noe man is come to New England to have his goods given and taken from him, unto, or for what good end, or under what pretence soever.” Any “lawes positive” that exceed the legislators’ derived power or that violate the basic premises of lawfulness “lose their force and are noe lawes at all.” While general taxes were legitimate—since they were voted upon by the general public, applied alike to all, and funded public services—an ordinance that simply took property from some people and gave it to another person for his own private benefit was not. “Noe, noe, lawyers would have blushed to give such a construction of lawes; and suddenly their faces would have waxed pale.”18
Justice Symonds was not the only early American judge to employ the logic of substantive due process. Professor Frederick Gedicks has assembled a mass of evidence showing that the founding generation generally agreed with the proposition that the ruler’s powers were “under the law”—meaning that government’s actions were entitled to respect as law only if they were consistent with deeper principles such as generality, public orientation, and respect for individual rights, that made a government act lawful rather than a mere exercise of power. “By the early 1770s,” he writes, the law of the land provision of Magna Carta “had merged with the broader concept of higher-law constitutionalism, which held king and Parliament alike to limitations prescribed by the natural and customary rights recognized at common law. By then, the colonists had also adopted the 17th-century tenet that English common-law liberties reflected and reinforced natural law and natural rights.”19
Revolution-era lawyers, raised on the writings of Edward Coke, were quite comfortable with this idea. In 1792, a South Carolina court declared that a statute taking property from one person and giving it to another was “against Magna Carta.”20 A Rhode Island court in 1786 struck down a statute that required people to pay their debts in banknotes and deprived any person accused of violating the statute of any right to a trial by jury. The court ruled that law void even though the state lacked any state constitution at the time because it violated the law of the land provision of Magna Carta.21
The law of the land theory of the common-law lawyers was strengthened by the transition to natural rights during the Revolutionary period. Having gone beyond religious toleration to adopt the idea that religious liberty was a natural right, they cherished the British tradition of rights inherent in common-law reasoning, but they went further by grounding their constitutions on the precepts of universal, natural rights articulated in the Declaration of Independence. This means that not only would a statute have to conform to the principles of generality, public orientation, and so forth in order to qualify as law, but it would also have to consist with constitutional provisions that incorporated the standards of natural rights. “To call a legislative act a ‘law’ during that era did not mean that the act merely satisfied constitutional requirements for lawmaking,” writes Gedicks, “but rather signified that it conformed to substantive limitations on legislative power represented by natural and customary rights. Legislative acts that violated these limitations would not have been considered ‘laws,’ even when they satisfied the constitutional requirements for lawmaking.”22 Professor Robert E. Riggs agrees, observing that the Constitution’s authors understood the phrases “law of the land” or “due process of law” as providing both procedural and substantive protections against government abuses. “This was true in colonial times; it was true during the early decades of the new republic; it has always been true of the fifth amendment due process clause.”23
Originalist opponents of substantive due process often quote the following line from Federalist 78 as proof that the Framers meant the courts to exercise a minimal role in the federal scheme: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”24 But the noteworthy part of this passage is that Hamilton was not arguing for “judicial restraint” but for a vigorous, engaged judiciary that would patrol constitutional boundaries against legislative encroachments.25 Indeed, the purpose of his essay was to defend a high degree of judicial independence. The distinction between judgment and will was central to his argument, because whereas will is a dangerous, proactive force, which must be kept on a close leash, judgment is the faculty of dispassionate interpretation, which must be insulated from outside influences. It would be improper to constrain the faculty of judgment by considerations of political expediency—and thus improper for courts to abstain from defending the Constitution against legislative overreaching. Hamilton would have had little sympathy for the modern notion of judicial restraint or judicial modesty; he would have agreed with the Supreme Court’s statement in United States v. Butler:
It is sometimes said that the court assumes a power to overrule or control the action of the people’s representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.26
Nevertheless, some originalists have argued that the Constitution’s authors meant the Due Process Clause to restrict only the acti
ons of the executive or judicial, not the legislative branch. This argument relies on similarly flawed logic and historical misconceptions. For one thing, the due process of law or law of the land guarantee originated in Magna Carta at a time when there was only a rudimentary understanding of separation of powers, and the wording of that document makes no such distinction. Not only did the king exercise what we would consider judicial and legislative powers, but until relatively recently, Parliament was more like a court than a legislature.27 Magna Carta’s Law of the Land Clause was not directed to one branch or another. Neither are its modern descendants, the Fifth or Fourteenth Amendments’ Due Process of Law Clauses; they simply declare that no person shall be deprived of rights without due process of law—not that no person shall be deprived by the judiciary or by the executive without due process of law.
Nor is it clear how the Due Process Clause could restrict only the executive or judicial branches without also applying to the legislature. Lawsuits virtually never involve just one branch acting alone. Consider the example of the sheriff who arrests a dissenter under an unconstitutional law that establishes a national religion. The arrested person would argue that the sheriff violated his constitutional rights: the arrest deprived him of liberty without due process of law. The sheriff would answer by pointing to the statute as giving him the authority to arrest. Since the sheriff is an executive officer, and thus admittedly bound by the Due Process Clause, a court must resolve the case by determining whether he acted with lawful authority, but that would compel the court to inquire into the constitutionality of that law, which means inquiring into the legislature’s actions. If the Due Process of Law Clause applies to the executive, it must necessarily also apply to the legislature because it makes the laws that executive officials execute. On the other hand, if the sheriff could cut off the inquiry simply by saying that the legislature passed the statute in question, then the result would again be what Justice Bronson predicted: the Constitution would bar the government from doing wrong—except when it chose to.
There is no proof that the Framers believed in such paradoxes. On the contrary, they understood that the Constitution restricted the legislature as well as the executive and the judiciary. In the nation’s early years, members of the Federalist Party argued that the Sedition Act of 1798—which criminalized certain forms of political expression—did not violate the First Amendment. They reasoned that the amendment was modeled on the British common law, and under that law, freedom of speech and the press were protected against violation by the king but not by Parliament. James Madison refuted this by observing that the American Constitution differed fundamentally from that of Great Britain: there, the legislature was considered sovereign, and “the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate.” But in the United States,
[t]he people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence . . . the great and essential rights of the people are secured against legislative as well as executive ambition . . . not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain, but from legislative restraint also. . . .28
Alexander Hamilton agreed. Some critics claim that Hamilton thought the Due Process Clause would not apply to the legislature and quote from a speech Hamilton delivered in the New York state house in 1787, in which he said, “The words due process of law have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.”29 According to Professor Raoul Berger, this was proof that Hamilton thought the Due Process of Law Clause related “solely to procedure in the courts, not to legislative acts.”30
But consult the actual speech, and a different picture emerges. The question under debate was whether the legislature could exclude certain former British Loyalists from voting, a proposition Hamilton opposed on the grounds that this would be a “legislative disqualification” that violated the due process of law guarantee. To disqualify someone from voting, or to impose any other punishment on him, the government must first give that person due process of law—and the mere enactment of legislation imposing that punishment could not suffice: “Some gentlemen hold that the law of the land will include an act of the Legislature,” said Hamilton—that is, some people argue that the law of the land guarantee is satisfied by the legislature passing a statute—but
Lord Coke, that great luminary of the law, in his comment upon a similar clause in Magna Charta, interprets the law of the land to mean presentment and indictment. . . . [And] if there were any doubt upon the Constitution, the bill of rights enacted in this very session removes it. It is there declared that no man shall be disenfranchised or deprived of any right but by due process of law or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the Legislature. Are we willing, then, to endure the inconsistency of passing a bill of rights and committing a direct violation of it in the same session? In short, are we ready to destroy its foundations at the moment they are laid?31
In other words, the due process of law requirement could not be satisfied by the mere fact that the legislature approved a deprivation. For lawmakers to take away a person’s rights, including the right to vote, simply by passing a statute to that effect, would be a lawless act, which courts should set aside.
In the decades that followed the Fifth Amendment’s ratification, courts frequently endorsed “substantive” readings of the Due Process Clause. The North Carolina Supreme Court ruled in a 1794 case that the legislature could not pass a statute declaring certain people, without any hearing, to be liable for debts to the state. The state constitution’s law of the land clause did not allow the legislature simply to proclaim that people were delinquent: since elected officials are “deputed only to make laws in conformity to the constitution, and within the limits it prescribes,” a law that violates its principles “is not any law at all. Whenever the Assembly exceeds the limits of the constitution, they act without authority, and then their acts are no more binding than the acts of any other assembled body.”32
The justices repeated this point in an 1833 case, Hoke v. Henderson.33 “In other countries,” wrote Justice Thomas Ruffin, the “will of the governors” was “admitted to be the supreme law.” But in America, where “written Constitutions, conferring and dividing the powers of government, and restraining the actions of those in authority” have been “established as securities of public liberty and private right,” judges must often make a “comparison between what the representatives of the people have done, with what the people themselves have said they might do, or should not do; and if upon that comparison it be found that the act is without warrant in the Constitution, and is inconsistent with the will of the people as there declared, the Court cannot execute the act.” If the legislators “pass an act upon a subject upon which the people have said in the Constitution, they shall not legislate at all,” or if they were to “enact that to be law which the same instrument says shall not be law,” judges would be bound to regard that legislation as something other than law—as an unauthorized act.34
Courts in New York and other states used the Law of the Land or Due Process Clauses of their state constitutions to strike down legislative efforts to take property from one person and give it to another.35 And the U.S. Supreme Court did likewise, concluding in Terret v. Taylor (1815) that “the great and fundamental principles of a republican government” limited legislative power.36 And in the 1829 case of Wilkinson v. Leland, the Court declared that “[t]he fundamental maxims of a free government” implicitl
y restricted what kinds of laws the government could enact. “[N]o court of justice in this country,” wrote Justice Joseph Story, “would be warranted in assuming that the power to violate and disregard” the principles of generality or public orientation “lurked under any grant of legislative authority, or ought to be implied from any general expressions [in the Constitution].”37 Given this history, it is unsurprising that Daniel Webster’s explanation of substantive due process in his 1819 argument in the Dartmouth College case38 was celebrated for its eloquence, not its originality.
Substantive due process was already widely accepted by 1857 when the Supreme Court referred to it in a single sentence of the Dred Scott decision.39 In fact, the doctrine was so pervasive that none of the dissenters, and not even the most strident abolitionists, criticized that part of the ruling. And in 1868, when the Fourteenth Amendment added a second Due Process of Law Clause to the Constitution, this time to restrict state legislatures, the doctrine was so conventional that the amendment’s supporters referred to it only in passing, and always with approval. In a 2010 article in the Yale Law Journal, Professor Ryan C. Williams—who has argued that Madison, Hamilton, and their contemporaries did not believe in the doctrine of substantive due process—nevertheless acknowledged that it had become commonplace by the time the Fourteenth Amendment was written.40 Lawyers at that time were familiar with decisions like Wilkinson, Hoke, and Terret, as well as Webster’s Dartmouth College argument and the writings of scholars such as Thomas Cooley, all of which interpreted the Due Process Clause as protecting substantive rights against legislative interference. Supporters of the amendment even cited many of these cases in their speeches explaining what the amendment would mean.41 Thus, even if one denies that the Founding Fathers believed the Due Process of Law or Law of the Land Clauses would protect individual rights against legislative interference, that idea had become so widespread by the end of the Civil War that “the overwhelming weight of authority would have supported a broader interpretation” of the new amendment’s due process guarantee.42
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover Page 14