Timothy Sandefur believes that my view of due process “would leave legislatures virtually unconstrained to violate the rights of individuals.” This statement, of course, assumes its conclusion. It is true only if “the rights of individuals” include a right to judicial review to determine if legislation is what Sandefur regards as “arbitrary” (more on that later). In any event, what Sandefur overlooks, of course, is that legislators who must account for their actions at the next election are never “virtually unconstrained.”
Consider the example Sandefur deploys of “virtually unconstrained” legislative power — the City of New London’s decision to condemn property for redevelopment at issue in Kelo v. City of New London. One can disagree with the decision — most of us can find any number of legislative actions with which we disagree — without concluding that it was “virtually unconstrained.” The most obvious constraint on New London was that it was obligated to pay property owners “just compensation” within the meaning of the Fifth Amendment. All taxpayers in New London (and those to whom taxes are passed on, such as renters), in turn, had to be taxed to fund the payment of that just compensation. All property owners in New London (and, for that matter, all who resided in that property), understood as well that they were also subject to the power of eminent domain, and could be subject to forced relocation by virtue of future condemnations. Thus, if the redevelopment was improvident, the voters would have ample reason to hold the elected officials of New London accountable at the next election. In a republic, of course, this is ordinarily the “process” that is “due” when it comes to legislative decisions that some regard as improvident. And, in a republic, when it comes to debate over the wisdom or propriety of a policy judgment, the majority is ordinarily entitled to prevail, as long as the minority has a chance to convert more to its side at the next election.
There is surely more than a little irony in Sandefur’s reliance on Federalist 71 to support his view. After all, the Constitution that was defended by Hamilton, Madison and Jay in the Federalist Papers contained no due process clause. The authors of the Federalist were not arguing for a judicial veto as a means of preventing abuses of legislative power; they were arguing instead that the system of political checks and balances that the Constitution had created would be sufficient to constrain government power. To be sure, Madison was later persuaded to draft what became the Fifth Amendment’s Due Process Clause, but he never expressed anything resembling Sandefur’s view of substantive due process. Hamilton, for his part, described due process solely in procedural terms.
On Sandefur’s view, however, the next election is somehow not a meaningful constraint on legislative power — all legislative decisions must also be subject to a judicial veto. I am happy to agree that there are some occasions in which policy is not appropriately made by majoritarian institutions, but Sandefur seems to believe that policy never ultimately rests in majoritarian hands — it is always subject to judicial veto. This is not the “due process” of a republic. Sandefur claims that this veto only applies to “arbitrary” decisions, but he does not really mean to limit judicial review to “arbitrariness,” as I have demonstrated in my earlier essays. Sandefur seems to think that a great many decisions that are not “arbitrary,” at least as we use that term in common parlance, nevertheless violate the Due Process Clause. His invocation of Kelo provides yet another example. Whatever one thinks of New London’s decision to condemn property for redevelopment, it surely was not “arbitrary.” New London made a considered judgment about how to revitalize a neighborhood that it regarded as underdeveloped. What Sandefur appears to mean by “arbitrary” — especially in light of his professed aversion to any form of judicial deference to politically accountable branches of government — is that the Due Process Clause permits the courts to set aside any decision with which they disagree. One conception of tyranny is the existence of unaccountable power. If so, it seems that Sandefur’s view of due process creates a judicial tyranny.
The fact that something like substantive due process was embraced for the first time by the Supreme Court in Dred Scott v. Sandford should give us pause. After all, are we not told that those who forget the mistakes of the past are condemned to repeat them?