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

In The Tempting of America, Robert Bork claims that Justice Taney's opinion in Dred Scott marked the "first appearance of in American constitutional law of the concept of 'substantive due process.'" In fact, as Mark Graber, Jim Ely, and others have pointed out, by the time Dred Scott came around, there was a substantial body of state court decisions using a substnative intepretation of due process of law, or the analogous "law of the land," to protect property rights. In fact, the Supreme Court itself had invalidated several federal laws that redistributed property rights as violations of the 5th Amendment's Due Process Clause.

But beyond the general accuracy of Bork's claim, he makes a very explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe in turn to Dred Scott, the better to discredit Roe and other modern due process decisions by associating them with Taney's infamous decision.

However, it turns out that not only did Justice Taney NOT invent "substantive due process" in Dred Scott, but that the idea that the concept of "due process of law" provided Americans with substantive protections was a quite common in abolitionist circles, and often arose in their public pronouncements.

For example, the 1843 National Liberty Convention of the abolitionist Liberty party passed a resolution stating that the fundamental truths of the Declaration of Independence, that all men are created equal and are endowed by their Creator with certain inalienable rights, was made part of the fundamental law of the national government by the Due Process Claus of the 5th Amendment. [UPDATE: I think I'm the first one to note the '43 Convention, which I found in a digitized newspaper database.]

The 1848 platform of the Free Soil Party, a precursor to the Republican Party which absorbed many Liberty part members, suggested that any federal recognition of the slavery violated the Due Process Clause:

4. Resolved, That our fathers ordained the Constitution of the United States in order, among other great national objects, to establish justice, promote the general welfare, secure the blessings of liberty; but expressly denied to the federal government, which they created, a constitutional power to deprive any person of life, liberty, or property, without due legal process. 5. Resolved, That in the judgment of this convention Congress has no more power to make a slave than to make a king; no more power to institute or establish slavery than to institute or establish a monarchy. No such power can be found among those specifically conferred by the Constitution, or derived by just implication from them.

The 1856 and 1860 Republican platforms explicitly argued that permitting slavery in the territories violated the Due Process Clause, because it took the liberty of the slaves without due process of law.

Both Justice McLean's dissenting opinion in Dred Scott and Abraham Lincoln in his public speeches argued that the problem with Taney's opinion was not its protection of property rights through the Due Process Clause, but that slaves could not be considered mere property, like hogs or horses.

So, say what you will about "substantive due process" (an anachronistic term not used until the 1940s), the Borkean notion, unfortunately repeated by many conservative opponents of SDP, that the concept has some special link to defending slavery is counterhistorical. Indeed, the reliance of abolitionists on "due process of law" helps explain why free labor advocates of the late 19th century were not the least bit embarassed to rely on a doctrine that Taney had used in Dred Scott.

UPDATE: In response to a query, I've posted the Google Books link to Bork's argument. If Bork was aware that "substantive due process" wasn't simply made up by Roger Taney, its not apparent in the book.

	[David Bernstein, February 24, 2009 at 10:56am] Trackbacks Dred Scott and "Substantive Due Process": In The Tempting of America, Robert Bork claims that Justice Taney's opinion in Dred Scott marked the "first appearance of in American constitutional law of the concept of 'substantive due process.'" In fact, as Mark Graber, Jim Ely, and others have pointed out, by the time Dred Scott came around, there was a substantial body of state court decisions using a substnative intepretation of due process of law, or the analogous "law of the land," to protect property rights. In fact, the Supreme Court itself had invalidated several federal laws that redistributed property rights as violations of the 5th Amendment's Due Process Clause. But beyond the general accuracy of Bork's claim, he makes a very explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe in turn to Dred Scott, the better to discredit Roe and other modern due process decisions by associating them with Taney's infamous decision. However, it turns out that not only did Justice Taney NOT invent "substantive due process" in Dred Scott, but that the idea that the concept of "due process of law" provided Americans with substantive protections was a quite common in abolitionist circles, and often arose in their public pronouncements. For example, the 1843 National Liberty Convention of the abolitionist Liberty party passed a resolution stating that the fundamental truths of the Declaration of Independence, that all men are created equal and are endowed by their Creator with certain inalienable rights, was made part of the fundamental law of the national government by the Due Process Claus of the 5th Amendment. [UPDATE: I think I'm the first one to note the '43 Convention, which I found in a digitized newspaper database.] The 1848 platform of the Free Soil Party, a precursor to the Republican Party which absorbed many Liberty part members, suggested that any federal recognition of the slavery violated the Due Process Clause: 4. Resolved, That our fathers ordained the Constitution of the United States in order, among other great national objects, to establish justice, promote the general welfare, secure the blessings of liberty; but expressly denied to the federal government, which they created, a constitutional power to deprive any person of life, liberty, or property, without due legal process. 5. Resolved, That in the judgment of this convention Congress has no more power to make a slave than to make a king; no more power to institute or establish slavery than to institute or establish a monarchy. No such power can be found among those specifically conferred by the Constitution, or derived by just implication from them. The 1856 and 1860 Republican platforms explicitly argued that permitting slavery in the territories violated the Due Process Clause, because it took the liberty of the slaves without due process of law. Both Justice McLean's dissenting opinion in Dred Scott and Abraham Lincoln in his public speeches argued that the problem with Taney's opinion was not its protection of property rights through the Due Process Clause, but that slaves could not be considered mere property, like hogs or horses. So, say what you will about "substantive due process" (an anachronistic term not used until the 1940s), the Borkean notion, unfortunately repeated by many conservative opponents of SDP, that the concept has some special link to defending slavery is counterhistorical. Indeed, the reliance of abolitionists on "due process of law" helps explain why free labor advocates of the late 19th century were not the least bit embarassed to rely on a doctrine that Taney had used in Dred Scott. UPDATE: In response to a query, I've posted the Google Books link to Bork's argument. If Bork was aware that "substantive due process" wasn't simply made up by Roger Taney, its not apparent in the book.