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The Fifth and Fourteenth Amendments prohibit deprivations of life, liberty, or property “without due process of law.” The classic objection to the view that the Due Process Clause offers something beyond a guarantee of fair procedures is textual. To use John Hart Ely’s formulation, "'substantive due process' is a contradiction in terms – sort of like 'green, pastel, redness.'" Sandefur tells us that Professor Ely and his fellow travelers fail to understand what the last word of the Due Process Clause means. He writes that “law” is not merely “a formal criterion”; it is also “the opposite of arbitrariness,” and requires “the use of governmental power in the service of a rational, general public principle.”

This is not the way we use the term “law” in common parlance. We ordinarily regard as “law” whatever rules have been enacted consistent with the procedural requirements for lawmaking, whether we consider them justified or not. We speak of “unjust laws,” “unfair laws,” or “arbitrary laws” without thinking we utter oxymorons. Our Constitution also uses the term “law” in this sense. Article I tells us 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.” The only requisites for the existence of “law,” in Constitution’s view, are procedural.

To be sure, the Constitution places substantive limitations on legislative power; thus, as Sandefur notes, the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Even so, the First Amendment does not seem to regard a “law . . . abridging freedom of speech” as an oxymoron; the First Amendment treats even an enactment abridging the freedom of speech is as a “law,” albeit one beyond congressional power. In just this vein, Chief Justice Marshall famously wrote in Marbury v. Madison that “a law repugnant to the constitution is void”; but he did not write that “a law repugnant to the constitution” is not even a law. In any event, even if laws that exceed the enumerated limitations on legislative power are not properly regarded as “law,” this does not prove that the Due Process Clause is properly understood as among those limitations. The First Amendment expressly limits the scope of legislative power; the Due Process Clause does not. The text of the Due Process Clause is no better than ambiguous when it comes to “substantive due process.”

But put all this aside and assume that Sandefur is correct that a “law is the opposite of arbitrariness,” and requires “the use of government power in the service of a rational, general public principle.” Even so, this claim does not come close to justifying the doctrine of substantive due process that Sandefur seeks to defend.

Consider one of the cases that Sandefur offers as an exemplar of substantive due process—the Supreme Court’s decision in Lawrence v. Texas invaliding a statutory prohibition on consensual, same-sex sodomy. Whatever one thinks of the statute at issue in Lawrence, it seems to be anything but “arbitrary”; indeed, it seems quite plainly to use “governmental power in the service of a rational, general public principle.” Texas’s prohibition on sodomy was not enacted on a whim; it reflected a longstanding view that the law should encourage procreative relationships by, among other things, proscribing homosexual activity. As it happens, I have considerable sympathy for the outcome in Lawrence; but I do not think that it can be justified merely by branding the Texas statute “arbitrary,” or unrelated to any “rational, general principle.” Using law to encourage favored relationships and proscribe disfavored ones strikes me as a “general public principle,” as is the desire to promote procreative relationships and activities. It takes more than an embrace of Sandefur’s counterintuitive definition of “law” to justify Lawrence.

History

Sandefur claims more than unadorned text in support of his conception of substantive due process; he tells us that history is on his side. Sandefur argues that his view has deep historical roots, citing as examples Daniel Webster’s argument in the Dartmouth College case and Justice Chase’s opinion in Calder v. Bull.

More than usual caution is required whenever one encounters lawyers (or law professors) advancing historical arguments. Lawyers are, by training and temperament, advocates; they seize on evidence that seems to support their case and ignore or minimize anything else. It is not for nothing that we are often warned of the perils of “law office history.” So it is here.

As it happens, neither Webster in Dartmouth College nor Chase in Calder v. Bull invoked the Due Process Clause to support their claim of inherent limits on the legislative power. Moreover, one finds nowhere in the legislative history of the Fifth and Fourteenth Amendments any mention of the conception of due process advanced by Sandefur.

To be sure, there is some historical support for Sandefur’s view. Lord Coke, for example, seems to have regarded the English antecedents of our Due Process Clause as a limitation of legislative power. Coke’s view, however, was unorthodox. By the time of our Constitution’s framing, the generally held view was that the legislative power was supreme, and not subject to implied and judicially enforceable limitations in the name of “due process of law” or otherwise. This, for example, was the position taken in William Blackstone’s treatise, the most influential of its kind in the framing era. Similarly, the most influential early American treatise writers—such as Justice Joseph Story and Chancellor James Kent—described due process in purely procedural terms.

By the time of the Fourteenth Amendment, there were a few cases and commentaries that described due process in more substantive terms. Most notable was the Supreme Court’s 1856 decision in Dred Scott v. Sandford, holding that federal legislation prohibiting slavery in federal territories deprived slaveholders of property without due process of law. Yet, in the Court’s first opinion to treat at any length with the Fourteenth Amendment’s Due Process Clause, the 1872 decision in The Slaughter-House Cases upholding a state legislative grant of monopoly rights to a private business, only Justice Bradley, in lone dissent, expressed anything like Sandefur’s view of substantive due process. To be sure, later in the nineteenth century, the notion that due process placed substantive limitations on governmental regulatory power came into vogue, but it is far from clear that this development rested on a deeply historically rooted conception of due process rather than the ideological predilections of the era’s judges.

My point is not that history argues against Sandefur’s conception of substantive due process; history on this point, as is often the case, is muddled. Instead, my point is that Sandefur cannot cherry-pick the evidence and then claim historical support for his conception of substantive due process. History is no better than a draw.

Prudence

If we are to embrace substantive due process, perhaps a conception of the judiciary’s role in ascertaining the limits of “law” should include a measure of prudence and intellectual humility. The fact that the Supreme Court’s first embrace of substantive due process came in Dred Scott should remind us of the perils in an understanding of due process that grants the judiciary a chancellor’s foot veto over everything that it regards as limiting freedom “without good reason.” The exercise of unaccountable power is always fraught with potential for abuse. Under the Constitution, legislators are not tyrants; they are always accountable at the next election, imperfect though that remedy may sometimes be. A life-tenured judiciary, however, is accountable to no one.

I have as high a regard for lawyers as one is likely to find; I even devote my professional energy to producing more of them. Yet I tremble at the power that Sandefur would have lawyers exercise when they ascend to the bench. The question of whether a garden-variety air-quality regulation amounts to an unwarranted interference with property rights or a sensible effort to force property owners to internalize the true costs of their activities rather than shifting them to those who live downwind—who may pay those costs with their lives—can contain enormous complexities. There is little reason to expect judges to have the expertise to resolve them with anything approaching an acceptable risk of error. Even worse, the judiciary is particularly poor rectifying its mistakes. Legislators who make bad policy usually hear about their mistakes soon enough, but our system of adjudication does not require the Supreme Court to monitor the consequences of its decision, or to defend them at the next election. The precedential power of judicial decisions, moreover, is a potent inhibition on the ability of the judiciary to recognize and correct mistakes.

Deciding whether a law is supported by “good reason” is the essence of policymaking. Our Constitution guarantees a republican form of government, and in a republic, policy is made by those who are politically accountable for their decisions. Sandefur’s conception of due process of law, however, creates a judicial platonic guardianship that must approve every policy decision. To my eye, this looks more like the due process of the ayatollahs than the due process of our Constitution. Leaving assessments of the wisdom of the “law” to the next election is surely one aspect of “due process of law” in a republic. This what the Court means when it writes: “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted (Cleburne, TX v. Cleburne Living Center)."

This is not to say that I regard Sandefur’s conception of due process as entirely wrongheaded. As Americans, we are deeply attached to a conception of individual rights; we do not think that every decision should be made by majority vote. There is something to the view that certain matters are not properly left to majoritarian resolution; reserving these for the realm of individual conscience may well be an aspect of “due process of law.” Drawing the line between what is properly the business of the majority and what must be left to the conscience of the individual, however, is no easy matter. This is the difficult task of substantive due process. We should face up to those difficulties with prudence and humility. My conception of “due process” includes generous dollops of these virtues. Sandefur’s version, it seems, not so much.

The proliferation of Unmanned Aerial Vehicles (UAVs) and other unmanned systems has, however, opened more than one new chapter in the evolution of international security. Paralleling the surge in authorizations of UAV military strikes, the Pentagon, the Department of Justice, and the Department of Homeland Security are successfully opening other drone fronts and obtaining other types of drone licenses—not just the “license to kill”—to facilitate drone deployment and drone sales.

UAVs are proliferating throughout the security spectrum—drug wars, border security, domestic and foreign surveillance, and law enforcement.

Cortright makes a strong case that drones make military action more likely since U.S. lives are not put directly at risk. But he likely overstates the role that drones play in transforming the “meaning of war.” Other factors—including the volunteer army, increased dependence on high-altitude and precisely targeted manned air strikes, and irresponsible fiscal policies—have played key roles in changing the nature of war for America, making the Iraq and Afghanistan wars less than acts of “national sacrifice and mobilization.”

Cortright regards drone strikes as emblematic of our wrongheaded and counterproductive response to terrorism. “Ethical questions about the use of drones concern not only the nature of the weapons but the policies they are meant to serve,” he writes. He observes too that “terrorism is more a political and law enforcement challenge than a threat that can be addressed by military means.”

Regarding counterterrorism as primarily an international law enforcement challenge rather than a military one would be a welcome change. Yet shifting the counterterrorism framework from war to criminal justice doesn’t necessarily imply discarding the options of UAV surveillance and strikes, whether directed by military or civilian entities.

It is not at all clear that drone strikes in Pakistan, despite the ample evidence of many untargeted victims, have served the interests of the Pakistani militants by significantly broadening their base of support and thereby increasing their reach and operations.[1] Nor can recent U.S.–Pakistan tensions be solely attributed to CIA drone strikes. Boots on the ground (January 2011 shootings by CIA agent Raymond Davis in Lahore) and manned aerial strikes (NATO gunship attacks on Pakistani troops in November 2011) precipitated the latest breakdown in relations.

All the problems and risks associated with drone warfare that Cortright underscores deserve close consideration—but within the broader context of why we wage war, how we effectively counter terrorism, and how we as a nation engage abroad.

Discussions of morality—the central theme of Cortright’s essay—shouldn’t ignore the fundamental role of money. The so-called “license to kill” is becoming increasingly accessible as industry attacks on export controls and the Missile Technology Control Regime mount.

Northrop Grumman CEO Wes Bush says that the U.S. economy and U.S. industry—which have benefited from the surge in military drone contracts, rising from $550 million in 2002 to $5 billion in 2011—will soon see the “golden age” of U.S. dominance in drone production end if U.S. export controls and the restrictions of MTCR on drone sales are not eased or reformed.[2]

The Obama administration’s Export Control Reform Initiative and recent end-runs by the drone industry (including slightly modified Predators for export) around MTCR restrictions may help maintain this dominance. Yet other drone-producing nations, notably Israel and China, are also seeking to meet the global demand for both unarmed and armed drones.[3] That is all the more reason to pursue the creation of the international accords and arms-control regimes for drones that Cortright recommends.

It should also be noted that the enthusiasm for drones is not often tempered by cost-benefit evaluations of the multibillion-dollar spending in UAV purchasing and deployment.

UAV proponents, including DHS and DOD, hail drones as being cost-effective. Yet the largest UAVs deployed by DOD, like the Global Hawk remotely piloted by the U.S. Northern Command from Nevada on drug war missions in Mexico, cost as much or more than high-tech manned surveillance missions.

Flush with border security funding, DHS has purchased Predators that come with a $20 million price tag including the costs of payloads and service contracts. DHS is hard pressed, however, to show that their Predators are more than high-tech toys prone to glitches and crashes. And the department has been unable to demonstrate their value in dismantling (or even disrupting) transnational criminal organizations let alone improving the security of the homeland. Marijuana seizures are their main achievement.

Certainly the rush to drone deployment should provoke “strong passions” and “vigorous debate.” But the debate that does exist is occurring largely on the margins of politics in America. It may be that vigorous debate over the morality and legality of drone deployment at home and abroad may only emerge when we see this proliferation in our own airways. The Federal Aviation Administration is facing great pressure by DOD, DHS, local law enforcement agencies, and industry to open domestic airspace to wide-ranging drone flights.

DHS already has a fleet of ten unarmed Predators and Guardians patrolling the borderlands and the southern coasts, while also providing grants to local law enforcement agencies to purchase small UAVs—all in the name of homeland security. Meanwhile, DOJ is paving the way through several criminal-justice programs for police and sheriffs' departments to add drones to their forces.

Not just killers, drones are also powerful surveillance tools. Like all government power, as the ACLU rightly argues, UAVs need “to be subject to checks and balances.” Just as UAVs have reasonable and justifiable military uses—once the checks and balances are in place—the many potential uses by law enforcement and other government agencies (as well as by individuals and businesses) should be guided by ethnical and legal standards. It will take a vigorous and transparent policy debate to ensure that such standards are formulated and enforced. Such issues as image retention restrictions, public notice of aerial surveillance, democratic control of UAV missions, and evaluation of impact and cost that have been raised by the ACLU need the attention of local and national policymakers.[4]

Thus far, in Congress and in the executive branch, we see mostly uncritical advocacy for increased drone deployment—on vivid display at the annual drone fairs on sponsored jointly by the House Unmanned Systems Caucus and the Association for Unmanned Vehicle Systems International.[5]

It is widely accepted—in Congress, in the media, and by the public—that drone warfare has been an unqualified success. This perceived success—unsullied by the type of concerns raised by Cortright such as drone blowback—is key in driving drone proliferation around the world and at home. Representative Candice Miller, the Michigan Republican who chairs the Subcommittee on Border and Maritime Security of the House Homeland Security Committee, is a self-declared “huge supporter” of UAVs and advocates deploying the “fantastic technology” that the U.S. military uses “in theater” at home.

“The UAVs are coming,” declared Miller in a recent oversight hearing, “and now you see our military sitting in a cubicle sometimes in Nevada, drinking a Starbucks, running these things in theater and being incredibly, incredibly successful.”

There’s more drone boosterism than oversight and evaluation in Congress, and Miller along with most of her Republican and Democratic colleagues have routinely given a green light to drone proliferation at home and abroad. Miller advocates a pervasive UAV presence for border control, north and south, and law enforcement.

In a political environment characterized by unconditional enthusiasm for drones and other high-tech security instruments, the case for more regulation and oversight needs to be made clearly and forcefully, which Cortright does well. If we are, however, to move toward the ethical and legal frameworks for drone deployment he recommends, we also need to evaluate the persuasive arguments for drone proliferation—holding that drone surveillance and strikes can prevent all-out warfare, lower the costs of a just war, and keep us all more safe and secure.

Cortright’s warnings about the dangers of drone proliferation, while clearly on target, would have more weight if he had presented and then attempted to debunk those positions.

[1] Eric Schmitt, “Lull in Strikes by U.S. Drones Aids Militants in Pakistan,” New York Times, Jan. 7, 2012.
[2] Carlo Munoz, “More Hill Heft Needed on UAS Exports, CRS Says,” AOL Defense, Jan. 9, 2012; Munoz, “Arms Export Controls Killing U.S. Drone Market,” AOL Defense, Aug. 17, 2011.
[3] “Proposed Rules,” Federal Register, Vol. 76, No. 215, Nov. 7, 2011.
[4] Jay Stanley and Catherine Croup, Protecting Privacy from Aerial Surveillance:
Recommendations for Government Use of Drone Aircraft, ACLU, December 2011.
[5] Tom Barry, “How Drone Warfare Took Over Congress,” Alternet, Nov. 30, 2011; Tom Barry, Fallacies of High-Tech Fixes for Border Security, CIP International Policy Report, April 2010.