Why Chapman And McConnell Are Wrong About Substantive Due Process

There’s a new article about substantive due process in the Yale Law Journal, this one written by Nathan Chapman and Michael McConnell. Like Prof. Williams, they are primarily concerned with history, and they give us some good history. But there are three basic flaws in their approach.

First and most importantly, Chapman and McConnell approach the subject with a strawman understanding of modern substantive due process doctrine, which they characterize as being “about judicial creation of fundamental rights outside the reach of legislative amendment.” This is not what substantive due process is, and by looking for it in the legal precedent, the authors are in the position of the man who tried to play Solitaire with a deck of Tarot cards. Second, they fail to grapple with the dramatic shift in the understanding of political legitimacy—of sovereignty—that took place with the birth and re-birth of the United States in 1776 and 1865. Third, by looking so closely at the cases, Chapman and McConnell lose track of the broader picture that is drawn for us by the cases themselves: they see each particular tree, but don’t think there’s a forest.

Chapman and McConnell begin, rightly, with the law of the land clause in Magna Carta, describing how Lord Coke and other judges saw it as protecting the subject against arbitrary or unauthorized government acts. But they think Coke was only arguing procedure: “[l]egislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law protections…. Coke was not arguing that the government could not [pass the restriction in question]; rather, he was asserting that the king could do so only in coordination with parliament…. [O]nly the legislature can make law that deprives persons of established rights.”

But this is not right. First, judicial enforcement of separation of powers in Coke’s day was a species of “creating” rights that are “outside the reach of legislative amendment”: even if we assume the law of the land clause only imposes procedural boundaries, those boundaries ARE beyond legislative alteration. Is it procedural or substantive? Well, as we’ve seen, the distinction between the two is not at all clear. Nor does it make sense to say simultaneously that the due process requirement was not about a higher law, but that it required the legislature to abide by common law protections. Those common law protections, especially according to Coke, were manifestations of abstract principles of reasonableness: the “artificial reason of the law.” A man could not be a judge in his own case, for example. This was considered a fundamental principle of common law precisely because it would be unreasonable and arbitrary to allow a man to be a judge in his own case. This is “higher law” reasoning, and, like the other rights protected by substantive due process, it can alternately be characterized as “procedural” or “substantive.” Chapman and McConnell describe this principle as one of “customary law”—but that’s just the point: it was a principle of reason, and for that reason embedded in the common law, and therefore valid even against Parliament’s authority. And if no man can be a judge in his own case, then that also IS a species of “creating rights” that are “outside the reach of legislative amendment”: at the very least, a right not to be subject to a law that makes a man a judge in his own case! (One thinks here of the Fugitive Slave Law.) This “procedural” protection is just as substantive as anything.

The point is that Chapman and McConnell are opposing what is basically a strawman caricature of substantive due process. That theory was not—and does not purport to be, today, except in the mischaracterizations of the theory’s opponents—about simply inventing rights. It’s a general guarantee against arbitrary, lawless government action. And that guarantee requires a court in a particular case to decide whether the government acted arbitrarily or lawlessly—an analysis that necessarily incorporates normative principles. Put that way, it’s easy to see that “substantive due process” was very much a part of seventeenth and eighteenth century jurisprudence.

Take another example: Chapman and McConnell dispute that Daniel Webster’s argument in Dartmouth College was an articulation of substantive due process theory. Instead, they argue, Webster was only arguing for a separation of powers principle: that the legislature is may not enact “quasi-judicial measures” that are “tantamount to a judicial sentence.” It’s certainly true that Webster argued this—the same “legislative deprivation” argument that we’ve seen Hamilton discussing. But Webster was contending that legislative deprivation was one type of lawless, unauthorized, arbitrary government action. And the reasons he gave for categorizing it as such show that he recognized a broader principle—that government may not impose arbitrary or lawless deprivations on people. To contend that Webster’s argument was not substantive due process theory is tantamount to saying that Areopagitica was only about the freedom to publish books about divorce, because the censorship case that inspired John Milton to write it involved a book about divorce. That would be silly, because Milton was arguing for a broad principle that would apply to all expression. Similarly, Webster was arguing that Dartmouth College had suffered a legislative deprivation which was one kind of arbitrary action that violates the due process guarantee. To argue otherwise is affirming a disjunct.

But there’s an even more important point that Chapman and McConnell overlook: the change in the understanding of sovereignty that took place with the American Revolution and was vindicated in the Fourteenth Amendment. Lord Coke’s articulation of the law of the land clause came at a time when debate over Parliament’s sovereignty was accelerating toward the English Civil War. That war was the first of a series of wars that climaxed with the American Revolution, which decided that, whatever British legal thinkers might say about Parliament’s sovereignty, in America, legislatures were not supreme. This added another layer of “higher law” reasoning to the protection of individual rights.

William Blackstone and others had argued that Parliament enjoyed “supreme, irresistible, absolute” authority. But the Declaration of Independence committed the United States to a different principle: there could be no legitimate “absolute” government, because legislative supremacy was limited by the natural rights of individuals. As James Madison put it, “the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members; the reserved rights of individuals (of Conscience for example), in becoming parties to the original compact, being beyond the legitimate reach of Sovereignty, wherever vested or however viewed.” Pro-slavery forces in the nineteenth century clung to the Blackstonian argument that legislative power was supreme and absolute, and that therefore the legislature could (in Chapman and McConnell’s words) “make law that deprives persons of established rights so long as it abided by procedural requirements. But others (whom I’ve called Lockeans) argued that legislatures were not supreme—their legitimate authority was restricted by the natural rights articulated, among other places, in the Declaration of Independence. The most articulate spokesman for this understanding was John Quincy Adams:

[State] sovereignty is not, and never was, a sovereignty as defined by Blackstone and the English lawyers, identical with unlimited power; that sovereignty, thus defined, is in direct contradiction to the Declaration of Independence, and incompatible with the nature of our institutions…. [T]he States, united, and the States, separate, are both sovereign, but creatures of the people and possess none but delegated powers…. [The doctrine that legislatures have power to enact laws that violate individual rights would mean that] [t]he Declaration of Independence will become a philosophical dream, and uncontrolled, despotic sovereignties will trample with impunity, through a long career of after ages, at interminable or exterminating war with one another, upon the indefeasible and unalienable rights of man.

In other words, the legislature can not “make law that deprives persons of established rights,” as the British Parliament could. At the end of the Civil War, the victorious Republicans sought to constitutionalize their rejection of the Blackstonian conception of legislative power. The Fourteenth Amendment—drafted largely by Adams’ protégés—was meant to put an end to the previous half-century of debates over this issue, and to make clear that our natural rights put boundaries around legislative power. When the legislature steps beyond those boundaries, its acts are unauthorized and are therefore not law for purposes of the Due Process of Law Clause.

Sadly, this revolution in the understanding of legitimate sovereignty is not discussed in Chapman and McConnell’s article. They are concerned primarily with legal decisions, and although I agree for the most part with what history they provide, it’s crucial to step back and see these cases in the context of the broader clash of political philosophy. If we focus too narrowly only on a specific case, we can be misled into seeing it only standing for that specific controversy. Thus we might, for example, be misled into reading Dartmouth College as being only about legislative deprivations, rather than as one permutation of the anti-arbitrariness principle. This truly would be missing the forest because no particular tree looks like one.

Most of all, we handicap our understanding both of the theory and the history itself if we approach the case law with a flawed picture of substantive due process in mind—namely, that it’s about “creating rights.” Debates over rights do arise necessarily from any substantive due process analysis, because deciding whether a law is a law for purposes of the Due Process Clause requires such a determination—we saw as much in my earlier comment on Gideon v. Wainwright. At the very least, when a plaintiff asserts that he’s been deprived of a right without due process of law, the court must first determine whether he actually had the right he claims was lost—and at that point, it can be accused of “creating” rights. Yet this is done in virtually any case, and it hardly shows that substantive due process is illegitimate. If we approach the history with a flawed image of substantive due process in mind, then it can come as no surprise when we fail to find it in the old decisions. But if we take a step back and look at the principles involved, we see that any such mismatch is only an artifact of our own misunderstanding, not of a nefarious change in the law.

The anti-arbitrariness principle we today call “substantive due process” is centuries old; it has been the subject of much disagreement and debate; it has manifested itself in different ways in different factual circumstances; and it took on a crucial new importance with the discovery of the limits on legislative power imposed by individual rights. If the post-Fourteenth Amendment era represents a kind of “Cambrian explosion” of substantive due process, we must not be misled by it in the way that some people are misled by the “Cambrian explosion” itself. The era saw a flourishing of substantive due process decisions for many reasons, including the increasing number of states; growing literacy and access to courts; intellectual fashions like the temperance movement that led to previously unheard-of legal controversies; profound changes in the way sovereignty was understood—and, of course, the clash over slavery itself. Throughout all these changes, the commitment to lawful, non-arbitrary rule remained in place. But this “explosion” is not evidence of some act of arbitrary special creation. Substantive due process has a strong pedigree in the principles of lawfulness and the political philosophy that informed the framers.

Also from this issue

Lead Essay

  • Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

  • Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

  • Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

  • Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.