Timothy Sandefur argues that substantive due process makes sense. On this point, I fully agree. He further contends that “due process of law” in both its procedural and substantive dimensions can be explained by reference to the simple principle that government may not act “arbitrarily.” On this point, I am less convinced. One considerable difficulty with Mr. Sandefur’s argument is that he views “due process of law” as a unitary concept without giving sufficient attention to the fact that the Constitution contains two separate Due Process Clauses—the Fifth Amendment Due Process Clause, adopted in 1791, and the Fourteenth Amendment Due Process Clause, adopted in 1868. As I have previously argued, the generations that framed and ratified these two Due Process Clauses almost certainly did not share a common understanding of what “due process of law” required. In order to understand the constitutional guarantee of “due process of law,” it is therefore important to view both provisions in their full historical context, with particular focus on the public understandings of each provision at the time of its respective enactment.
The English Origins of “Due Process of Law”
“Due process” originated in 1215 with the English Magna Carta, an important provision of which was that no freeman would be deprived of certain rights except “by the judgment of his peers and by the law of the land.” This guarantee was later codified by Parliament in a series of statutes, one of which replaced “law of the land” with “due process of law.” Sir Edward Coke and other influential writers on English law declared the two phrases synonymous and this view was widely accepted by American courts and commentators during the late eighteenth and early nineteenth centuries.
Consistent with its language, the law of the land provision was understood to require that deprivations of individual rights could only be accomplished in accordance with the law. As applied to the King, this required that deprivations be supported by some external source of legal authority, such as an act of Parliament, rather than by the King’s own unilateral command. As applied to courts, the provision required application of the appropriate underlying substantive law as well as procedures consistent with the traditional practices of common-law courts. Importantly, neither the “law of the land” nor the closely related “due process” concept were understood to restrain Parliament itself, which had ultimate authority to say what the “law of the land” would be. As Coke explained in his influential treatise on English law, “the power and jurisdiction of the parliament, for making of laws” was “so transcendent and absolute” that it could not “be confined … within any bounds.”
The English colonists who immigrated to America carried with them their legal traditions, including the Magna Carta law of the land provision which was incorporated in some form in declarations of rights adopted by the majority of early American colonies. A few colonies adopted separate “due process of law” or “due course of law” provisions. Each of these latter provisions was directed specifically to the procedures by which an accused could be brought to “answer” before a court of law.
“Due Process of Law” in the Fifth Amendment
It is against this background that the Fifth Amendment’s Due Process Clause must be understood. The Fifth Amendment itself attracted little public debate or commentary and the Due Process Clause received virtually no attention in the framing and ratification debates. This relative inattention is not particularly surprising. The large majority of existing states in 1791 had incorporated a law of the land equivalent in their own constitutions. And in view of the centuries of experience with the concept under English and colonial law, Americans of the Founding generation likely saw little worth discussing.
Not much is known about why the Fifth Amendment’s framers chose “due process of law” rather than the more familiar “law of the land” formulation. What is known is that Coke had equated “due process of law” with “presentment and indictment” and nearly all early commentators on the Constitution assumed the Fifth Amendment Due Process Clause carried a similar meaning. In view of this background, the most plausible interpretation of the Fifth Amendment Due Process Clause, when read in its original context, is as a requirement of fair and impartial judicial procedures consistent with those used at common law. If the provision was understood to restrain Congress at all, it was likely understood solely as a limit on Congress’s ability to authorize or require deviations from such traditional judicial procedures.
The Nineteenth-Century Transformation of “Due Process of Law”
Americans have always been innovators. American lawyers in particular have long been adept at developing creative arguments to further their clients’ interests. In the early decades after the Fifth Amendment’s adoption, a handful of American lawyers and judges began experimenting with new readings of state constitutional law of the land provisions that would restrain legislative, as well as executive and judicial, power.
The first courts in which such arguments gained traction developed two principal accounts of how law of the land provisions might restrain the legislature. The first approach focused on “law of the land” as a protection of traditional judicial procedures. Because legislatures were not courts and thus could not provide judicial procedures themselves, these courts reasoned that law of the land provisions should be read to prohibit legislatures from directly depriving people of property or other “vested” rights or interests through retrospective legislation. Instead, such “vested rights” could only be taken away by courts and then only as punishment for violating some preexisting legal duty.
The second approach focused on the word “law” and reasoned that legislative enactments that were not sufficiently law-like should not be considered the “law of the land.” In particular, because legislation was paradigmatically general in nature, this reading assumed that special legislation that benefited or burdened particular groups was not the “law of the land” and thus exceeded the legislature’s authority.
Each of these innovative readings drew upon broadly shared intuitions regarding the appropriate subjects of legislation. The innovative move reflected in these early cases was to connect such abstract principles to the specific language of the law of the land provision. The novelty of such interpretations is reflected in the fact that numerous courts at around the same time struggled to reach similar results without ever suggesting that “law of the land” or “due process of law” had anything to do with the issue. For example, Justice Samuel Chase’s famous opinion in Calder v. Bull, which Mr. Sandefur characterizes as “one of the classic statements of substantive due process,” made no mention of the Fifth Amendment Due Process Clause or of any state-law equivalent. Instead, Chase simply assumed that laws transferring property from one person to another contradicted unwritten “vital principles” and were therefore void—a view famously contested by Chase’s fellow Justice, James Iredell.
In the mid-nineteenth century, as more and more courts came to embrace Justice Iredell’s skepticism of unwritten legal principles, state courts increasingly turned to “law of the land” and “due process” provisions as a convenient textual source for reining in perceived legislative abuses involving “special” legislation or interference with “vested rights.” By the time of the Fourteenth Amendment’s adoption in 1868, courts in at least 20 of the 37 then-existing states had embraced one or both of these readings in interpreting their own state constitutions. The U.S. Supreme Court also experimented with the “vested rights” reading, most notoriously in Chief Justice Roger Taney’s declaration in Dred Scott v. Sandford that a law prohibiting slaveholders from retaining their slaves in federal territories would deprive them of property without “due process of law.”
In view of this background, it is probable that the public understanding of “due process of law” at the time of the Fourteenth Amendment’s adoption was broad enough to encompass both the “vested rights” and “general law” interpretations. Importantly, both of these interpretations went to the validity of the underlying substantive law rather than the procedures through which courts were to apply that law. There is thus a strong argument that, despite the nearly identical phrasing of the Fifth and Fourteenth Amendment Due Process Clauses, only the latter provision was originally understood to embrace a recognizable form of “substantive due process.”
The Due Process Clauses and the “Non-Arbitrariness” Principle
This brief survey of the history of “due process of law” allows us to better assess Mr. Sandefur’s claim that the concept may be reduced to a simple directive that governments not act “arbitrarily.” As a matter of the Fifth Amendment’s original meaning, this claim seems implausible. Of course, requiring the King and the courts to act in accordance with the “law of the land” and provide “due process of law” served as a useful check on certain forms of arbitrary power. But the traditional understanding of these concepts did nothing to restrain arbitrary action by the legislature. There is no evidence that a broader understanding was widely embraced by Americans of the Founding era or that the Fifth Amendment’s Due Process Clause was generally understood to limit Congress’s authority in prescribing substantive rules of law.
When it comes to the Fourteenth Amendment, things are somewhat less clear. Certainly, many American courts by 1868 had embraced the view that “due process” limited the legislature’s authority to prescribe substantive as well as procedural rules. But for the most part, these courts did not view due process as embodying an abstract “non-arbitrariness” principle. Rather, the concept was generally applied to prohibit two relatively specific forms of legislation—laws that directly deprived individuals of “vested rights” and laws that were unduly “special” or “partial” in nature. The important step of connecting “due process of law” with an abstract prohibition of “unnecessary and arbitrary” interference with individual rights had yet to be taken.
In sum, while I agree with Mr. Sandefur that at least some forms of “substantive due process” can be considered a legitimate part of the Constitution, I do not believe that the pre-enactment history of either Due Process Clause will support a reading of “due process of law” that is as broad as he suggests.