The Volokh Conspiracy - Dred Scott and "Substantive Due Process":

Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of "substantive due process" to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney's opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process:

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

The main historical significance of Scott's discussion of due process, then, is not as the case that invented "substantive due process," as Bork would have it, but quite the opposite--it indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power.

UPDATE: A comment points out that Justice Scalia has said: "You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'" Apparently, Scalia needs to read the actual Scott opinion, and some constitutional history, instead of The Tempting of America. Scott was not the first case to use the concept of SDP, and it definitely did not use that term. Indeed, the phrase "substantive due process" wasn't invented until at least the 1930s. This leaves the Lochner critics who commonly chastise the Court for relying on the "oxymoron of 'substantive due process'" looking rather silly, as the Justices of the Lochner Court would not have been familiar with that phrase.

	[David Bernstein, July 19, 2007 at 5:12pm] Trackbacks Dred Scott and "Substantive Due Process": Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of "substantive due process" to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney's opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process: But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved. A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. The main historical significance of Scott's discussion of due process, then, is not as the case that invented "substantive due process," as Bork would have it, but quite the opposite--it indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power. UPDATE: A comment points out that Justice Scalia has said: "You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'" Apparently, Scalia needs to read the actual Scott opinion, and some constitutional history, instead of The Tempting of America. Scott was not the first case to use the concept of SDP, and it definitely did not use that term. Indeed, the phrase "substantive due process" wasn't invented until at least the 1930s. This leaves the Lochner critics who commonly chastise the Court for relying on the "oxymoron of 'substantive due process'" looking rather silly, as the Justices of the Lochner Court would not have been familiar with that phrase.