Two or Three Myths About Substantive Due Process

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.


Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

“Substantive due process” is simply the idea that certain government actions do not qualify as “law,” for one reason or another, and therefore that if the government deprives you of liberty under one of these non-laws, it is depriving you of liberty without due process of law. For instance, if the president vetoed a bill, but the U.S. Marshal showed up at your door and arrested you under it anyway, you’d say that he was acting without lawful authority — the vetoed bill had not become “law,” so the Marshal is depriving you of liberty without due process of law.

That seems obvious if there’s a procedural or formal shortcoming in the enactment. But what if there’s a substantive shortcoming in the enactment? Suppose Congress passed a law creating a national church, and the president signed it. You refuse to attend the national church and the sheriff shows up to arrest you for violating this “law.” You’d say that it’s not actually a law, because Congress has no power to make any law on this subject. Whatever Congress passed — you might call it an “enactment” or a “resolution” or a “pronouncement” — but you couldn’t call it a law, because Congress can’t make a law like this, even if it follows the procedural or formal rules of enactment. The substance of this enactment makes it not a law — and, again, for the sheriff to arrest you under it would be to deprive you of liberty without due process of law. As the Court said in Cummings v. Missouri, “The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name…. If the [constitutional] inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.”

So far, so good for explicit limits on the legislature, such as the First Amendment. But what about implicit limits? Are there certain things government simply has no legitimate power to do? This is an issue that has divided lawyers for all of American history — from Chase and Iredell in Calder v. Bull to the present day. But judges in the nineteenth century held that because government is created to protect our rights, arbitrary violations of those rights obviously exceed government’s legitimate authority even if the constitution’s text didn’t explicitly bar the particular act in question.

I often use the analogy of a bank guard. Suppose he robbed the very bank where he worked, and when he was arrested, said, “Nothing in my contract said I couldn’t rob the bank!” That argument would be silly because the whole point of hiring a bank guard is to protect the bank from robberies. You don’t have to put it in the contract because it’s obvious that the guard has no right to rob the bank. In the same way, if government violates our rights for self-interested reasons, or to enrich a private interest group, it’s violating those very rights it was created to protect, and such actions are obviously illegitimate — every bit as ultra cures as a law creating a national church.

One need not agree with this argument to admit that it was the argument made by articulators of “substantive due process,” at least as far back as 1819, when, in his argument in Dartmouth College v. Woodward, Daniel Webster explained the theory of “substantive due process” in words courts quoted throughout the nineteenth century:

[quoting Blackstone: “Law] is a rule; not a transient sudden order…to or concerning a particular person; but something permanent, uniform and universal….” By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so…decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void…. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony.

In Loan Ass’n v. Topeka, in 1874, the Supreme Court used this exact theory to strike down a law that used taxpayer money to buy bonds in a privately owned railroad. “To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.”

And, again, in Hurtado v. California, the Court explained the idea again:

Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, “the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial,” so “that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society,” and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.

As we can see, it simply isn’t true that the Court never explained the substantive dimension of the due process clause. It’s done so many times.


Another common myth about “substantive due process” is that the first Supreme Court case employing this doctrine was Dred Scott. This claim (which I think originated in Democracy And Distrust, but was made famous by Robert Bork) is very misleading. Webster’s Dartmouth College argument was almost forty years old by that time, and the theory was very familiar to lawyers and judges of the period (witness Wynehamer v. People, or Billings v. Hall, 7 Cal. 1 (1857).)

Moreover, due process is mentioned only in a single sentence in Dred Scott — in a totally unremarkable and logically valid connection. In that case, Chief Justice Taney held (wrongly) that Congress lacked power to ban slavery in the western territories, and then added that for Congress to take away a person’s property under an enactment that lacked lawful authority would violate the due process of law requirement. Dred Scott was wrong on many levels, but on that latter point, Taney was right.


Finally, there’s the myth that “substantive due process” was simply invented to plug the hole left when the Slaughterhouse Cases erased the privileges or immunities clause from the Fourteenth Amendment. It’s true that many of the due process decisions that came after Slaughterhouse could also have been resolved as due process cases, but the clauses really just overlap, the way the takings clause might overlap with due process in some cases.

Frederick Gedicks and others have mustered an impressive array of history to show that the due process clause was understood as containing this substantive dimension as early as the founding. Certainly the “law of the land” clause of Magna Carta — synonymous with “due process of law” — was held to bar arbitrary interference with economic liberty as far back as the early seventeenth century. And Loan Ass’n v. Topeka was decided only a year after Slaughterhouse. Can the conspiracy to use the due process clause instead have been concocted so swiftly? In fact, the theory of “substantive due process” was not only well known to the authors of the Fourteenth Amendment, but was explicitly cited, with cases, by Congressman William Lawrence, during the 1866 debates.

I discuss all this in much more detail in my article, “Privileges, Immunities, And Substantive Due Process,” published earlier this year in the NYU Journal of Law & Liberty.

Myths cloud the understanding of one of the most interesting ideas in the history of American law. Love it or hate it, the concept of “substantive due process” at least deserves to be understood in the terms its finest theorists — some of America’s greatest legal minds; Daniel Webster, Stephen Field, George Sutherland, and others — understood it.

P.S.: I can’t resist adding a complaint about a hasty comment in Justice Scalia’s recent decision for the Court in Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2606 (2010): “we have held for many years…that the ‘liberties’ protected by Substantive Due Process do not include economic liberties.” As a matter of fact, this is simply not true. No court that I know of has ever made this claim. True, the rational basis test provides very little protection for economic liberty under the due process clause, but the Court has never claimed that economic liberty is categorically excluded from due process protection. Even the Warren and Burger Courts held that due process required some level of judicial scrutiny. Schware v. Board of Examiners, for example, or even Lee Optical, one of the most anti-economic liberty cases of all time, still applied some tiny degree of judicial scrutiny. I fear Justice Scalia fell into inaccurate hyperbole in this comment.

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