Prof. Rosenthal’s mention of the Dred Scott case reminds me that I should address this recurring myth: that substantive due process originated in Dred Scott. As near as I can tell, this idea originated in John Hart Ely’s Democracy and Distrust, and was taken up by Robert Bork in The Tempting of America. I can’t quite decide if it’s an ad hominem or the genetic fallacy, but either way, the claim, while not entirely false, contains only enough truth to be misleading. Dred Scott was not the origin of substantive due process, and while that case contains many faults, its brief, single-sentence reference to substantive due process (on page 450 of the decision, if you want to look it up) is not one of them. I explain more fully in The Right to Earn a Living, but I’ll address it briefly here, and then ask a question of my positivist friends.
First, some preliminaries. Dred Scott is a complicated and bizarre decision. It’s one of the longest in Supreme Court history, and it was written in bizarre circumstances: Chief Justice Taney apparently refused to allow his colleagues even to see the decision before he issued it—which is why Justice Benjamin Curtis resigned from the Court, the only Justice ever to do so over a matter of principle.
And it’s a labyrinthine opinion, one that goes off in directions that were unnecessary to the resolution of the case. Taney appears to have thought his decision could resolve the entire slavery question, and in particular, that he could deal a death blow to the anti-slavery constitutional theory advanced by people like Charles Sumner, Lysander Spooner, Joel Tiffany, and others. That hope was obviously disappointed, but not merely by the Civil War. Very soon after the decision was issued, New York’s highest court refused to follow it, issuing a decision in Lemmon v. People (20 N.Y. 562 (1860)) that rightly threw down the gauntlet at the High Court, only to be superseded by events.
Briefly put, here’s what the Dred Scott decision says:
A) For the government to deprive a person of slave property under a statute that exceeds Congress’ lawmaking authority would be a deprivation of property without due process of law.
B) Congress has no constitutional authority to ban slavery in the western territories, which is what it attempted to do, resulting in depriving Mr. Sandford of his slave.
∴) Therefore taking away Mr. Sandford’s slave property deprives him of property without due process of law.
As a logical matter, this is a valid argument. But it’s unsound, because the minor premise is false: the Constitution quite clearly gave Congress power to ban slavery in the territories, and Taney’s elaborate attempts to deny this—which take up the bulk of the opinion—are denials of plain fact. There are other things wrong with the opinion, but as I said, it goes in so many directions that I can’t discuss them all.
The major premise, however—that ultra vires legislative action cannot count as a law, and therefore violates the due process of law guarantee—is entirely sound, and was well established and non-controversial by 1857. We’ve already seen that Daniel Webster’s invocation of this idea, which became the standard text in nineteenth century substantive due process decisions, came almost half a century earlier, and state courts had been applying the idea long before Dred Scott. Even Prof. Williams, who thinks substantive due process originated much later than I believe, acknowledges that it was not a novelty in Dred Scott, and that whatever other well-deserved criticisms were leveled at the decision when it was issued, nobody at the time seems to have regarded that aspect of the case as problematic.
Thus while substantive due process did play a role in Dred Scott, it is highly misleading to characterize it as a “substantive due process case” (let alone as the source of that theory). It’s like saying that the problem with Korematsu was that it was “a supremacy clause case,” or that the problem with Plessy v. Ferguson was that it was “an equal protection case.” It just won’t do to smear substantive due process with the stain of Dred Scott. Substantive due process is an analytical test—a legal theory, like “standing.” Judges can be wrong about standing and can even abuse it to reach wrong decisions. But that’s an argument for being careful about the judges we choose—not an argument that the law itself should be discarded.
But now that I’ve explained (one reason) why I think Dred Scott was wrong, I have a question for my positivist friends. Why do you think Dred Scott was wrong? How could it possibly be wrong, according to your theory? If you believe, as Prof. Rosenthal does, that “[t]he only requisites for the existence of ‘law’…are procedural,” and that law is simply “whatever rules have been enacted consistent with the procedural requirements for lawmaking, whether we consider [the results] justified or not,” then how is it possible for Dred Scott to have been wrongly decided? It was, after all, promulgated by the duly constituted Supreme Court, in accordance with all of the procedural requirements. How could it not have been law?
I see no sense in saying that mere promulgation is sufficient for the legislature but not for the courts (certainly nothing in the Constitution draws the line here). If promulgation by constituted authorities makes something law, then Dred Scott must have been the law—that is, it must have been what it purported to be: a correct interpretation of the Constitution. And yet…Dred Scott says that ultra vires Congressional action doesn’t satisfy the due process clause, which you hold to be incorrect. What, then, is the status of this decision, which was duly promulgated and must therefore be law—and yet which says that mere promulgation is not enough to make something law?
I sense here the same Cretan Paradox that I address in footnote 222 of my article. In Lawrence v. Texas, the Court said that “Bowers [v. Hardwick] was not correct when it was decided.” Yet Bowers was duly promulgated by the constituted authorities. It therefore must have been the law when it was decided. Thus Lawrence must be in error to say that Bowers was wrong. Yet Lawrence was duly promulgated by the constituted authorities, and it, too, therefore must be law. (And you can’t get out of this by saying that Court decisions can be law but still mistaken interpretations of the law, since they purport to be nothing other than correct interpretations of the law, and disavow any lawful effect if they are shown to be incorrect interpretations.)
Finally, the straw man. I’m obviously not advocating “judicial tyranny.” I believe in no sort of tyranny, but because in our system, “the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents,” I believe in a strong, engaged judiciary as a bulwark against legislative violation of individual rights and lawful order—problems to which today’s vogue for judicial deference leaves us vulnerable. On that point, let’s pause on what Prof. Rosenthal calls the “irony” of my citation to the Federalist. He considers that ironic because “the Constitution…contained no due process clause” when it was written. This leads him to conclude that Hamilton and his colleagues “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.”
But Hamilton wrote that when Congress passes statutes that are “not pursuant to its constitutional powers,” those statutes “will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…. [T]hat limitation would have been to be understood, though it had not been expressed.”
“Treated”…by whom? Prof. Rosenthal mentions “checks and balances”—what check and balance is Hamilton hinting at here? If we can’t guess, Hamilton gives us the answer: “the courts,” he says, have “the right[]…to pronounce legislative acts void, because contrary to the Constitution.” Courts, he explained, “were designed to be an intermediate body between the people and the legislature,” entrusted with the power “to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
This was, indeed, said even before the Fifth Amendment was ratified. But that Amendment, like the rest of the Bill of Rights, was regarded by everyone concerned—Antifederalists and Federalists alike—not as establishing new provisions, but as reiterating what was already implicit in the Constitution: they are limitations that “would have been to be understood, though they had not been expressed,” and were added as a redundant precaution. The fact that the Bill of Rights and the limitation in the Supremacy Clause were considered redundant is no reason to ignore them. Certainly nobody in 1788 believed—as Prof. Rosenthal seems to—that before the Fifth Amendment was ratified, the federal government was allowed to deprive people of life, liberty, or property without due process of law!
Probably the most basic myth about substantive due process is that it is anti-democratic. It is not. Courts are part of our lawful democratic process—they are one of what Prof. Rosenthal calls the “political checks and balances” in our system. The people, knowing their legislators—and even they themselves—make mistakes, or are sometimes driven by passion instead of reason, or otherwise violate individual rights, chose to create in the Constitution a system of separated powers, including a judiciary, which is entrusted with the job of ensuring that the democratic process doesn’t violate the fundamental law of the land, and become destructive of individual rights, both enumerated and unenumerated. To regard the courts as standing outside our lawful democratic process is to misunderstand that process. The judges are chosen indirectly by the people, and their powers are subjected to meaningful checks by the President and Congress. The courts and their power of judicial review stand within, not outside our system of lawful democratic order. Ours is not a simple majoritarian system combined with some anti-democratic “veto.” It’s a structure by which the people give law to themselves—by which they limit their own democratic power within a system of law—law that courts (and other branches) are supposed to enforce. As Jefferson put it, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which…no [branch] could transcend their legal limits, without being effectually checked and restrained by the others.”