One basis for modern opposition to “substantive due process” is that the Due Process of Law guarantee only applies to the courts or the executive, not to the legislature. The superficial plausibility of this argument fades upon examination, though.
As Prof. Nicholas Rosenkranz has recently emphasized, we should take care to properly identify the subjects and objects we’re talking about. The executive is charged with executing the law enacted by the legislature, whereas the legislature, strictly speaking, doesn’t act at all. It merely prescribes the rule, and the executive justifies his actions (if at all) by reference to the enacted rule. So, in the example I gave in my opening article, I imagined Congress passing a law establishing a national religion; a person refuses to go to church, on the grounds that this “law” is unconstitutional, and is therefore void and of no effect. But at this point, his rights have not yet been violated—he has not yet been deprived of life, liberty, or property, and cannot assert a violation of the Due Process Clause or anything else. It is only when the sheriff—i.e., the executive officer—arrives to arrest him that the issue is joined. Now the dissenter argues that he’s being deprived of liberty without due process of law because the sheriff is acting without authority. The sheriff, meanwhile, points to the statute as the source of his authority. The question now is whether that statute qualifies as “law” for purposes of the Due Process Clause. There’s a colloquial sloppiness in saying at this point that “the legislature has violated the Due Process Clause.” In fact, it’s the sheriff who has deprived the man of his liberty, without legitimate authority, because the statute is not “law” for purposes of the Due Process of Law Clause. It’s the legislature and the executive in concert that have violated the Constitution.
Keep in mind that the due process of law guarantee originated in Magna Carta at a time when there was no significant understanding of separation of powers, and the wording of the clause in that document indicates no such distinction. Not only did the king exercise what we would consider judicial and legislative powers, but Parliament was more like a court than a legislature until relatively recently. Like Magna Carta’s law of the land clause, the Fifth or Fourteenth Amendments’ due process of law clauses make no distinction between executive, legislative, or judicial: they simply declare that no person shall be deprived of rights without due process of law—not that no person shall be deprived by the judiciary or the executive without due process of law.
What would it mean to say that the due process clause doesn’t restrict the legislature? In the example I’ve given, the sheriff who arrests a dissenter under an unconstitutional law can point to the unconstitutional law as the source of his authority, and—then what? His action is now authorized because the legislature enacted a statute, so that the arrest does not violate the due process of law clause? If the due process of law clause does not apply to the legislature, then we really would have the situation that Justice Bronson characterized as “you shall not do the wrong, unless you choose to do it”! (I discuss Bronson argument further on pp. 335-342 of my article.)
I don’t think the framers fell for this argument, either. In the crisis over the Sedition Act, some argued that Act didn’t violate the Constitution because the First Amendment was modeled on the British common law and thus allowed the legislature to punish speech post hoc. Madison answered that the American Constitution was fundamentally different from that of Britain. “In the British government, the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate,” whereas Parliament was held to be sovereign. Thus the “ramparts for protecting the rights of the people,” including Magna Carta and the British Bill of Rights, were aimed at the executive, rather than the legislature. But in the United States,
[t]he people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence, in the United States, the great an essential rights of the people are secured against legislative as well as executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain, but from legislative restraint also….
What about Alexander Hamilton? It seems every time I read about the founders and due process, I encounter the assertion that Hamilton believed the due process clause did not apply to the legislature, and it nearly always includes this quote:
The words due process of law have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.
But when you consult Hamilton’s actual speech, and read it in context, it’s obvious that Hamilton is making exactly the opposite point for which he is being quoted! The question being debated was whether the legislature could exclude certain former Loyalists from voting. Hamilton opposed this, arguing that it would constitute a “legislative disqualification,” and, therefore, a violation of the due process of law guarantee. To disqualify a person from voting, or impose any other punishment on him, the government must first accord him due process of law—and an act of the legislature is not enough. That was the point Hamilton was making: “Some gentlemen hold that the law of the land will include an act of the Legislature,” he says—that is, some people argue that the law of the land guarantee is satisfied by the legislature passing a statute—but:
Lord Coke, that great luminary of the law, in his comment upon a similar clause in Magna Charta, interprets the law of the land to mean presentment and indictment…. But if there were any doubt upon the Constitution, the bill of rights enacted in this very session removes it. It is there declared that no man shall be disenfranchised or deprived of any right but by due process of law or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the Legislature. Are we willing, then, to endure the inconsistency of passing a bill of rights and committing a direct violation of it in the same session? In short, are we ready to destroy its foundations at the moment they are laid?
In other words, for the legislature to disqualify a person or impose a deprivation on a person would be a direct violation of the due process of law clause. I’m no fan of Hamilton, but I feel sorry for a man who has been so brazenly misquoted.
Hamilton’s “legislative deprivation” theme was a common one in pre–Civil War substantive due process cases, such as Wynehamer or Billings v. Hall. And the question in these cases came down to this: can the government deprive a person of life, liberty, or property without legitimate justification, simply by passing a statute for that purpose? This just is my hypothetical of the sheriff. And it just is Lochner v. New York. And it just is Lawrence v. Texas.
These cases all involved “legislative deprivations.” In other words, this just is substantive due process theory. Hamilton’s words indicate that some acts of the legislature are not “law” for purposes of the due process of law guarantee—that is, arbitrary, ipse dixit, self-interested, irrational acts do not satisfy the due process of law guarantee even if the legislature votes in favor of them. Legislative “process” is not enough.