Timothy Sandefur’s essay on whether his conception of substantive due process is consistent with the Constitution’s original meaning contains in my view the kernel of a defensible position about substantive due process. First, though, I address what I regard as two false starts toward a defense of substantive due process.
The first is contained in Sandefur’s opening essay, with its claim about the meaning of the term “law.” Sandefur claims that “ultra vires government action is not “law” for purposes of the Due Process of Law requirement,” but the historical evidence is hardly uniform on this point. As I pointed out in my response essay, this is not the sense in which either the Constitution itself or Marbury v. Madison use the term “law,” to use just two examples — both regard ultra vires enactments as “law,” even if they exceed congressional power under the Constitution. If, on the other hand, the Fifth Amendment were understood to prohibit ultra vires federal legislation, why did Chief Justice Marshall fail to invoke it in Marbury? Moreover, this view turns the Due Process Clause into surplusage since ultra vires actions also are declared as beyond the scope of federal power by the Tenth Amendment. On Sandefur’s view, the Fifth Amendment does the same work as the Tenth. It may be that lawyers occasionally draft with “belt and suspenders,” but surely any view that turns important parts of the Constitution into redundancies should viewed with some skepticism. In any event, even if Sandefur were correct that the Due Process Clause was understood to forbid ultra vires legislation, that does not establish that the Due Process Clause was itself a source of unenumerated limitations on legislative power beyond those stated elsewhere in the Constitution. As I indicated in my opening essay, there are plenty of framing-era sources that describe due process in solely procedural terms. Ryan Williams is correct that later in the nineteenth century, there is more evidence of a substantive understanding of due process, but even he refrains from claiming that the evidence is uniform on this point. There is plenty of evidence from the Fourteenth Amendment’s framing era that due process was understood in procedural and not substantive terms. The historical and textual evidence goes no further than to establish ambiguity.
The second false start is the effort to pack substantive due process into the asserted constitutional obligation against “arbitrary” government action. Sandefur embraced this view in his opening essay, and it is embraced as well by Gary Lawson, who recognizes a “general ban on arbitrary federal legislative action” that he claims “is actually well grounded in the fiduciary obligations imposed on Congress by its status as a public agent who received delegated power,” in particular, “in the requirement that laws for the implementation of federal power be ‘necessary and proper’ for executing those powers, with ‘proper’ serving as a standard term to describe such fiduciary obligations.” He concludes: “One of the most basic obligations of a fiduciary is to behave non-arbitrarily … .” Professor Lawson recognizes that his view creates surplusage — in his view, the Due Process Clause adds nothing already not required by the Necessary and Proper Clause (and, I could add, the Tenth Amendment as well). Indeed, he writes: “If the very concept of law is as value-laden as Sandefur would have it, then the original, unamended Constitution already forbade arbitrary federal action from June 21, 1788 onwards.” On this view, the Due Process Clause at best “codified and clarified this basic requirement of (procedural and substantive) legality but did not create it.” Again, I am more reluctant to read the Due Process Clause as a redundancy. But put all this aside. The concept of “arbitrary” governmental action will not bear all the weight that Lawson and Sandefur place on it. Consider Professor Lawson’s exemplar of substantive due process — “a hypothetical federal statute requiring interstate railroads to maintain racially segregated cars.” Whatever one wants to say about racial segregation, it was surely not “arbitrary.” A Jim-Crow-era legislature’s decision to require segregation by race as oppose to, say, hair color, was anything but arbitrary. It was part of a quite considered view of relative position of the races; one that can even be reconciled with the “fiduciary obligations” that Professor Lawson supposes are implicit in the concept of “law.” I am reminded of Charles Black’s reference to “the entirely sincere protestations of many southerners that segregation is ‘better’ for the Negroes, is not intended to hurt them. But I think a little probing would demonstrate that what is meant is that it is better for the Negroes to accept a position of inferiority, at least for the indefinite future.” Indeed, one can find this sort of “benevolent” view of a racial caste system in Jefferson’s Notes on the State of Virginia. One cannot condemn racial segregation merely by calling it “arbitrary,” at least if one is concerned with accuracy. Due process may prohibit systems of racial caste — at least I think it does — but not because these systems are “arbitrary.”
A more promising route to substantive due process begins with Professor Lawson’s question whether it matters that the meaning of due process may have changed between the ratification of the Fifth Amendment in 1791 and the Fourteenth Amendment’s ratification in 1868. He asks whether constitutional amendments are “subject as well to the interpretative conventions applicable to ‘this Constitution’—meaning the Constitution of 1788—including the interpretative convention that makes the hypothetical reasonable observer of 1788 the referent for meaning? If so, there is at least a plausible case that the original public meaning of 1788 determines the constitutional meaning even of amendments ratified in the distant future.”
Yet by 1868, in a line of cases stretching from at least McCulloch v. Maryland to Dred Scott, the Supreme Court had made clear the expectations of Professor Lawson’s “hypothetical reasonable observer of 1788″ were not the sole or even the most important interpretive conventions to be employed in constitutional interpretation. A “hypothetical reasonable observer” in 1868, in other words, would not think that constitutional amendments would be interpreted exclusively based on the original understanding; McCulloch would have put him on notice that “it is a constitution we are expounding,” one that was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs,” and which did not “deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.”
It had become clear by 1868, if not before then, that the Constitution was not chained to the original expectations as to what powers the legislature could exercise. This recognition, in turn, suggests a more durable basis for a doctrine of substantive due process than simply labeling everything one finds distasteful or wrongheaded as “arbitrary.” The eighteenth-century understanding of due process may have been primarily, if not exclusively, procedural, but it had evolved in a legal system where the legislature exercised unfettered power over substantive law. The new Constitution’s Supremacy Clause, however, subordinated legislative power to the Constitution itself. As I suggested in my opening essay, in a republic, “due process,” when it comes to the wisdom of government policy, is ordinarily provided by the political process, but it is likely the case that we do not regard every issue as properly resolved by majoritarian institutions.
As Ryan Williams observes, most of the supporting historical evidence for the concept of substantive due process involved legislation benefiting discrete classes or impairing what were regarded as vested rights. Accordingly, he, echoed by Professor Michael Rappaport, doubts that the original meaning of the Due Process Clause can support a general doctrine of substantive due process. But due process was sometimes articulated in an even broader way – Dred Scott invalidated any federal prohibition on slavery in the territories without characterizing the law it struck down as either class legislation or an impairment of vested rights (it was neither). By 1868, due process had come to be a malleable concept without precise contours. More important, Sandefur is quite correct to distinguish between original intended applications and original meaning. The Due Process Clause was drafted at a higher level of generality than simply a prohibition on class legislation or the impairment of vested rights.
When it comes to the Fourteenth Amendment’s Equal Protection Clause, for example, what binds us is the general principle embodied in the constitutional text — equal protection — and not the specific expectation that the vast majority of framers surely had that the Fourteenth Amendment would not outlaw segregation. After all, the Fourteenth Amendment did not codify a special rule about segregation, but rather a more general principle about equality. Similarly, when it comes to due process, what we are bound by is not the framers’ views on vested rights or special legislation — which they did not bother to codify in the Constitution’s text — but instead the more abstract concept that they did place in the text — due process of law. We must decide when the political process supplies all the process that is “due” when it comes to legislation affecting life, liberty, or property, and when it does not.
To be sure, our Constitution creates a republic in which policy is ordinarily made by the legislature. That is why the political process ordinarily supplies all the process that is “due” when it comes to what are ultimately policy disputes as to the wisdom or propriety of legislation. But our conception of “due process” does not mean that legislative process is the place to resolve every debate, or that majorities can impose just about any disability they wish on a minority. Americans have always worried about the tyranny of the majority, from the framing era to the present. Defining the limits of majoritarian power is the task of substantive due process. It is not easy, and it must be done with appropriate respect for our republican form of government, and with appropriate regard for the institutional limitations on the judiciary. It cannot be done, however, simply by slapping the label “arbitrary” on whatever one regards as bad policy. That is tyranny of a different sort.