About February 2012
The text of the U.S. Constitution draws deeply on pre-existing legal traditions, and much of its meaning lies below the surface. What, for example, is a bill of attainder? What counts as a warrant, and what is a jury? Questions such as these are vitally important for understanding how our government is supposed to work.
In this month’s Cato Unbound we ask what the Constitution means when it promises us that no one will be “deprived of life, liberty, or property, without due process of law.” This phrase — found in the Fifth Amendment and made binding on the states in the Fourteenth Amendment — is usually understood as a guarantee of an orderly, impartial, and regular trial procedure, and no one doubts that these things are components of “due process of law.”
Our lead essayist, however, would take things further. Timothy Sandefur of the Pacific Legal Foundation asks why we value an orderly, impartial, regular trial procedure in the first place, and he finds that this is but one component, albeit a necessary one, of lawful rule. He makes the case that the due process clause offers us more than just a set of legal rituals. It is also a guarantee of non-arbitrary action by government, a promise that the government will act in the service of the public good, not for mere private interest or arbitrary whim.
This step takes us into some deeply normative territory, full of difficult value judgments and risk of error. We’ve invited three other eminent legal minds to discuss the issue: Lawrence Rosenthal of Chapman University, Gary Lawson of Boston University, and Ryan Williams of the University of Pennsylvania.
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.
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.
- Would Half a Loaf by Any Other Name Throw Out the Baby? Why Sandefur is Both Right and Wrong about Substantive Due Process by Gary S. Lawson
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.
Related at Cato
- Daily Commentary: A Cheer for Judicial Activism, by Clint Bolick, April 3, 2007
- Podcast: Beachfront Property and Substantive Due Process by Ilya Shapiro, June 28, 2010
- Book Forum: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform by David Bernstein, May 2, 2011
- Book Forum: The Right to Earn a Living
How Government Stifles Initiative and Harms Economic Growth by Timothy Sandefur, September 20, 2010
- Legal Brief: Lawrence v. Texas, amicus curiae brief of the Cato Institute, June 1, 2003