Timothy Sandefur tells us that the Due Process Clause is not just a promise of fair procedure, but also a substantive guarantee that “government may not limit our freedom without good reason.” In fact, he tells us that we need only understand the concept of “law” to embrace “substantive due process.” Not so fast, Mr. Sandefur.
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.
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.
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.