1. Text: Sandefur marshals historical evidence that on some occasions in the framing era, the term “law” was used to connote not only enactments that had satisfied the procedural requirements for lawmaking, but instead to enactments which also conformed to express and implied limits on the scope of legislative authority. Yet he refrains from claiming that the term “law” was ALWAYS used in this fashion. Sometimes, the term was used merely to refer to enactments that had satisfied the procedural prerequisites for lawmaking, as in Article I of the Constitution, which provides that if a bill is passed by both houses of Congress and signed by the president, or if the president’s veto is overridden, “it shall become Law.” At best, Sandefur has identified an ambiguity in the text. Of course, an ambiguous text cannot tell us how to resolve the ambiguity. Textual argument is no better than a draw.
2. History: In an effort to address this ambiguity, Sandefur resorts to history. He is tripped up by the same problem. Sandefur marshals the evidence that supports his view, and there is some. There were a number of legal thinkers in the framing era who embraced Sandefur’s view of the meaning of “law,” as well as “due process of law.” Ryan Williams is quite right that the evidence supporting Sandefur is not as strong at the time of the Fifth Amendment’s framing as at the framing of the Fourteenth Amendment, and he is right as well that most (but, I think, not all) of this evidence involves a less robust conception of substantive due process than Sandefur’s (primarily relating to vested rights and some kinds of class legislation). But, there is certainly some historical evidence supporting Sandefur’s view. But, there is also inconsistent evidence. Sandefur likes Justice Chase’s opinion in Calder v. Bull, but Justice Iredell’s view was quite different. Sandefur cites the opinion in Wynehamer v. People, but the opinion of the Rhode Island Supreme Court in State v. Keeran took a directly opposing view. I could go on, but the point should be plain. This historical evidence is messy and in conflict. Sandefur makes no effort to demonstrate the contrary. Historical evidence supplies no reliable basis for decision.
3. Structure and prudence: In light of what I regard as the conflicting evidence from text and history, I have turned to structural and prudential argument. While I am willing to embrace a narrow conception of substantive due process, I think there are powerful structural and prudential reasons for the judiciary to defer to the legislature on policy issues where judicial expertise is lacking and political accountability is likely to be a more effective means of redress for unwise decisions than granting an unaccountable judiciary an effective veto over matters about which it is likely to know little. As an example of the dangers of an overbroad doctrine of substantive due process, I have referred to Dred Scott, the first occasion on which the Supreme Court embraced something like the doctrine that Sandefur advocates.
In his post on Dred Scott, Sandefur, after a fair amount of huffing and puffing, ultimately admits that the Court held that the Due Process Clause prevents Congress from forbidding slavery in the territories. His complaint about Dred Scott, it seems, is that he regards the decision as wrong. Why? Because the Constitution “quite clearly gave Congress power to ban slavery in the territories … .” He cites the Territorial Clause, which provides: “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Does this language “quite clearly” grant Congress the power to ban slavery in the territories? A majority of the Supreme Court did not see matters as so clear. Moreover, even if the Territorial Clause conferred this power on Congress, why is that power not limited by the Fifth Amendment’s prohibition, at least as Sandefur understands it, on “arbitrary” legislation? Why is it not similarly limited if we accept Professor Lawson’s view that the Constitution, properly understood, bans “unfair” legislation? In Dred Scott, the Court wrote: “[A]n Act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” It seems that the Court thought that a ban on slavery was “arbitrary” or “unfair,” to the extent we can even understand what Sandefur or Lawson mean by these terms.
All adjudication involves a risk of error. The more imprecise the “rule” to be applied, the greater the risk of error. Sandefur’s rule is pretty imprecise — it prohibits “arbitrary” legislation. Despite my fancy education and credentials, I do not really understand what he means by “arbitrary.” After all, Sandefur seems to believe that a lot of carefully considered decisions to which he objects on grounds that have little to do with arbitrariness — such as racial segregation or the use of eminent domain to promote private redevelopment — violate his rule. Professor Lawson’s far more candid view is that a great deal of legislation that is not arbitrary nevertheless runs afoul of what he regards as a constitutional obligation to treat citizens “fairly.” In the abstract, these pronouncements are unobjectionable, but because they are so broad and abstract, any effort to apply them in litigation would confer enormous powers on courts and inject an enormous risk of error. If you let courts strike down anything that they regard as “unfair,” you should not be surprised if Dred Scott — or its contemporary equivalent — is the result.
If we are to have a doctrine of substantive due process, it should be one that injects only an acceptable risk of error into constitutional adjudication, and one that is sensitive to the limits of judicial expertise, and to the unsuitability of the adversarial process for making what are essentially policy judgments. Is that too much to ask?