Did Substantive Due Process Lead to Dred Scott?
It is often claimed that the concept of substantive due process was first employed in Dred Scott, the infamous case in which the Supreme Court barred Congress from outlawing slavery in the territories and declared that black Americans had no rights that whites were bound to respect. This assertion appears to have originated in John Hart Ely’s 1980 book Democracy and Distrust, and while not entirely false, it contains only enough truth to be misleading. Dred Scott was not the origin of substantive due process; while that case contains many faults, its brief, single-sentence reference to substantive due process (on page 450 of the decision) is not one of them.
As we have seen, Dred Scott was a long and complicated decision, with many objectionable points. But its basic logic goes as follows: First, for the government to deprive an owner of slave property under a statute that exceeds Congress’s lawmaking authority would be a deprivation of property without due process of law. Second, Congress has no constitutional authority to ban slavery in the Western territories, which is what it attempted to do by enacting legislation that had the effect of depriving Mr. Sanford of his slave. Therefore, that legislation deprived Sanford of property without due process of law.
As a logical matter, this argument was valid. But it was unsound because the minor premise was false: the Constitution quite clearly did give Congress power to ban slavery in the territories, by providing that Congress may “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Taney’s elaborate attempts to deny this—which take up the bulk of the opinion—were denials of plain fact. But his major premise—that ultra vires legislative action cannot count as a law and therefore violates the due process of law guarantee—was correct, and was well established and noncontroversial by 1857.43 Indeed, anti-slavery leaders had been making the same argument for many years by that time. Abraham Lincoln, and others who railed against the Dred Scott decision in speeches and pamphlets, did not dwell on this aspect of the case; they focused instead on showing that Congress did, indeed, have the lawful authority to ban slavery in the territories.44 Today, legal historians acknowledge that substantive due process was not a novelty in 1857 and that, whatever other well-deserved criticisms were leveled at the Dred Scott decision when it was issued, nobody at the time—not even the dissenting justices—seems to have regarded that aspect of the case as problematic.
Thus while substantive due process played a role in Dred Scott, it is misleading to characterize it as a “substantive due process case,” let alone as the source of that theory, and it is devious to use the infamy of that decision to disparage substantive due process. It would be akin to saying that the problem with Korematsu v. United States45 was that it was “a Supremacy Clause case,” or that the problem with Plessy v. Ferguson46 was that it was “an Equal Protection case”—and then to disparage those clauses for having been so used. It will not do to smear substantive due process with the stain of Dred Scott. Substantive due process is an analytical test; a legal theory. Judges can misunderstand or misapply legal theories, or even abuse them to reach corrupt decisions. But that is an argument for choosing judges carefully—not an argument for discarding the law itself.
The Redundancy Argument
Many opponents of substantive due process have argued that the Due Process Clause cannot have been meant to prohibit legislative abuses that are already forbidden by other constitutional provisions because this would make the Constitution redundant. If the due process of law requirement bars special legislation or arbitrary treatment, it would seem strange that the same Constitution would also have other clauses aimed at those same wrongs. A traditional rule of legal interpretation holds that lawyers should avoid reading a law in a way that renders any of its parts redundant. Therefore, these critics argue, the authors of the Constitution would not have added the more specific guarantees if they had thought that their concerns were already resolved by the Due Process Clause.
But as Professor Gedicks has observed, this redundancy critique is a weak argument,47 given that “‘lawyers say everything at least twice.’”48 Constitutional guarantees often overlap: frequently, a law that violates the Due Process Clause will also violate, say, the Equal Protection Clause, or the Just Compensation Clause, or provisions that protect freedom of expression. In fact, the Bill of Rights is itself a redundancy. During the ratification debates in 1787 and 1788, the Constitution’s leading authors, including Madison,49 Hamilton,50 and James Wilson,51 argued persuasively that a Bill of Rights was unnecessary because the Constitution gave the federal government only certain limited powers: people therefore need not fear for the security of their rights. Still, they agreed to add the amendments as an additional precaution, “provided,” Madison said, “it be so framed as not to imply [government] powers not meant to be included in the [Constitution].”52 The Bill of Rights really only reiterates, in a different way, the limitation on federal power that was built into the Constitution to begin with; it is thus redundant, but it would be absurd to say that it should be disregarded on that account. Moreover, the Bill of Rights is also internally redundant: its provisions specify such basic procedural rights as the right to a jury, or to a trial, which are already part of due process of law. Under the redundancy argument, one would have to conclude that these provisions do not really mean what they say.53
A better reading of “due process of law” would see it as being a general prohibition against all government arbitrariness. Given how old that prohibition is, it is not surprising that a constitution would include other, more recent provisions that overlap with it. As different types of government abuses have appeared through history, people have added more specific constitutional protections, even where they thought those abuses should have been barred already by the existing Due Process of Law Clause. They would certainly have had no reason to remove or whittle down the older guarantee. Thus, during the 19th century, as Westward expansion and the growth of railroad corporations gave rise to new constitutional problems—such as the abuse of eminent domain to benefit private companies, or government subsidies to politically influential industries—the delegates to state constitutional conventions would naturally frame additional protections against these abuses without thereby reducing the power of the existing Due Process Clause.
As Justice John Harlan Jr. wrote, the “full scope” of “due process of law” must not be sought in “the specific guarantees elsewhere provided in the Constitution,” but instead in legal principle and historical experience.54 It should be seen as “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”55
Is Substantive Due Process Undemocratic?
Probably the most common complaint about substantive due process is that it is anti-democratic: unelected, life-tenured judges, the argument goes, exploit that doctrine to impose their will on a democratic society. But this argument misunderstands the nature of our constitutionally limited democracy, and the role of our judicial system.
The Constitution does not provide that whatever the majority decrees is law. Instead, it carefully limits the power of the majority by drawing a legal boundary around it, restricting what voters and elected officials may do.56 Since the Constitution takes precedence over the will of the majority, it is proper for courts to enforce the Constitution—which is the supreme law—even against the majority. Courts do not stand outside of the constitutional structure, they are a part of that structure, the purpose of which is to restrict political power. The people, knowing that they and their legislators are sometimes led astray, chose to erect a system of separated powers, including a judiciary entrusted with the job of ensuring that the democratic process stays within the boundaries of the natio
n’s fundamental law.
The Founders were well aware that in a democracy, the majority can often confuse the genuine social good with its own self-interest, and can exploit and hurt minorities or individuals for this purpose.57 In a society where the majority makes the laws, Madison wrote, abuses typically originate “not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”58 In Federalist 10, he warned that the majority is just as likely as a monarch or a small elite to pervert power for its own gain—and possibly more so. He used an illuminating metaphor to explain. Proposed laws are a lot like lawsuits in which the majority is both the plaintiff and the judge. “[W]hat are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens . . . ?”59 But unlike in a court case, where the parties can seek adjudication by a disinterested arbiter, democratic legislatures are more likely to be biased by the self-interest of the voters.
Suppose a group proposes to abolish all debts, which would benefit the private self-interest of the majority, but would commit an injustice against the lenders and harm society in general by ruining credit and destroying the chances for future prosperity and progress. This “wicked project” is like a legal dispute: “the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are and must be themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.”60 This is the central problem for any democracy: “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity,”61 yet the majority in a democratic society is responsible both for passing laws and determining their constitutionality. This creates a risk that the majority will exploit its power to serve its own self-interest, instead of the general good—or might even become so confused about the relationship of liberty and order that it can no longer understand the difference between these two things. For a democracy to be legitimate, therefore, it is not sufficient that the majority approves of a bill; instead, the government must be run in a way that keeps the distinction between arbitrariness and lawful rule constantly in mind.
The Constitution represents the people’s effort to restrict their representatives’ acts within legal limits. The judiciary, no less than the other branches of government, is charged with maintaining and enforcing that distinction, by policing the boundary of lawfulness against legislative majorities tempted to act unlawfully. A judge may sometimes err, as can any government official. But by resisting the majority, the judge does not contradict the principle of lawful democratic order; he plays an important part in representing the people’s interests. True, federal judges are not elected, but they are chosen by the people through the same indirect, appointment-and-confirmation process whereby cabinet secretaries or ambassadors are chosen. Nobody would say that a decision by, say, the secretary of labor lacks democratic legitimacy; the same goes for decisions of judges. In fact, many voters pick presidential candidates exclusively on the basis of the judges the candidate is likely to appoint.
This critical factor is often ignored in critiques of substantive due process. One author, for example, argues that the “central problem” with the Supreme Court’s power of judicial review is that “federal judges do not represent the community, and can only exercise carte blanche power at the expense of the community’s authority.”62 But federal judges do represent the community; they are chosen by the people, through a process designed to protect their independent judgment against prejudice or bias. Federal judges do not exercise their power at the expense of the community’s authority, because the community cannot rightfully claim lawless authority. When the community or its elected officials act in ways that exceed constitutional boundaries, those acts have no more weight than the acts of an arbitrator who goes beyond the arbitration agreement, or of the bank guard who decides to rob the bank. Indeed, since the Constitution—and not any particular piece of legislation—reflects the true intent of the people, a court that invalidates an unconstitutional piece of legislation is actually enforcing the true will of the people.63
But the “democracy” critique of substantive due process often goes deeper. It is typically premised on the Progressive Era–notion that moral or ethical values are products of the majority’s arbitrary will. Courts have no business addressing questions about justice, or individual rights, or the implicit limits on government power, because these matters are determined by majority vote. In Bork’s words, moral or ethical values have “no objective or intrinsic validity”64 but are only a collection of the majority’s personal tastes. Chief Justice William Rehnquist expressed this view, in words that demonstrate how the critique of substantive due process rests on a combination of political majoritarianism and moral relativism. There is “no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments,” he wrote, and “no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa.” Thus, when the majority enacts laws, it aggregates the people’s subjective preferences—which then become both morally right and legally valid. “The laws that emerge after a typical political struggle in which various individual value judgments are debated,” he argued, “take on a form of moral goodness because they have been enacted into positive law.” But it is only “the fact of their enactment that gives them whatever moral claim they have upon us . . . not any independent virtue they may have.”65
This inverts America’s constitutional foundations, which rest on the principles of the Declaration of Independence. According to those principles, majority rule is legitimate only within the boundaries of individual rights—rights that are not created by the government but are objectively related to human nature and can be rationally defended and understood. Human nature defines the contours of morality, which limits what the majority may legitimately do. “The people in mass,” wrote Jefferson, “are inherently independent of all but moral law.”66 That is why the Declaration provides that states may do only things “which Independent States may of right do.” But Rehnquist’s formulation reverses this: the will of the majority creates moral law, so that states decide what individuals may, of right, do.
Relativists like Bork and Rehnquist see the courts’ power to declare laws invalid as an intrusion on the majority’s right to rule. Because they see reasoning about natural rights as foolish abstraction, they think the major problem in constitutional interpretation is confirmation bias—the tendency to read into the Constitution whatever the reader wants to see. Since judges cannot be trusted to be objective about questions of fairness or justice—no such judgments can be objective—judges should defer as much as possible to the will of the majority. But this argument holds a hidden contradiction: it assumes that imposing normative views in the law is wrong, yet this is itself a normative position. A commitment to majoritarian democracy is an abstract principle. If moral principles are arbitrary, the decision to defer to the majority’s will is just as arbitrary as the decision to do the opposite. If moral priorities are irrational preferences, one cannot claim to be objective by prioritizing the will of the majority, because that, too, would be an irrational preference.
Consider two prominent positivists, law professors Nelson Lund and John McGinnis, who argue that legislatures “have always been” in the business of “adjusting the substantive contours of [fundamental] rights, and must continue to do so” without judicial interference.67 Lund explicitly “denies that the existence of natural or inherent rights is self-evident, no matter how strongly we may desire it to be true,”68 because “political philosophers have engaged for centuries in sharp and unsettled debates” about t
hese rights.69 This difference of opinion means there must be no truth of the matter, and the issue should be left in the hands of the majority. Rights are simply privileges that “arise from human institutions”70—privileges granted to individuals on the basis of the majority’s subjective preferences, not rational principles rooted in human nature. This argument unashamedly erases the dividing line between law and arbitrariness.
Yet at the same time, Lund and McGinnis call judges who employ substantive due process “lawless judges”71 and accuse them of “judicial disobedience.”72 This is strange, considering that the Founders deliberately chose to create an independent, not an “obedient,” judiciary. But Lund and McGinnis evidently mean that judicial decisions that are poorly reasoned, or in which judges act beyond their legitimate powers, are not lawful—that they are not actually the law. This raises a paradox. The judges who write such opinions do so according to traditional court procedures. How, then, can their decisions be “lawless”? The answer must be that the substance of their decisions makes them not law, regardless of how those decisions were promulgated. But if it is possible to accuse a judge of acting arbitrarily or “lawlessly,” even when that judge complies with procedural formalities, then why is it not also possible to say that a legislature that acts unjustly, or beyond its legitimate authority, is acting lawlessly—and thus violating the Due Process of Law guarantee—even if it abides by procedural requirements?
In short, like all positivists, Lund and McGinnis try to adopt a descriptive, value-free view of law, and leave all normative questions to the majority—yet doing so is still taking a position on how the law ought to be. To say that courts should defer to the majority is a prescription, and to recommend it to a judge is to make a claim about what is right. Positivists cannot say that it is an abuse to impose (allegedly subjective) normative commitments in the guise of constitutional interpretation, since they do precisely the same thing. Worse: while the authors of the Constitution and the Declaration of Independence could root their normative claims about how law and government ought to work in objective propositions about human nature, positivists can do neither of these things. Their appeal to the value of democracy rests on no foundation: by their own confession, it is a baseless, arbitrary, emotional preference. They endorse democracy, not because it is good but just because they feel like it.
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