Much calumny has been spilled on the concept of “substantive due process,” yet there few of its critics have even tried to explain the derivation of the concept, or what it actually means. The impression one gets from reading the accounts of Robert Bork, Paul Kens, or Justice Souter, is that the term means nothing more than a judge’s use of personal political views in assessing the legitimacy of a law under the magic words “due process.” While that may or may not be the proper conclusion to draw about what the concept of substantive due process means, one might least ask whether the judges who have employed this concept thought that that is what they were doing, or whether they believed they were doing something else. Kens claims that the concept of substantive due process was invented out of thin air by Thomas Cooley in the late 1860s. Robert Bork argues that it goes back to the Dred Scott case of 1857. Other writers have pointed out that the concept was being employed almost a century earlier. But even assuming that the idea was devised in the 1860s, and abandoned (in part) in the 1930s, this leaves seventy years—more than a generation of lawyers and judges—who seriously engaged in the jurisprudence we call “substantive due process.” It beggars the imagination to suppose that all of these people were engaged in something which Bork, Kens and others portray as so utterly dishonest and so unmoored in the principles of law and history. It is to suppose a vast conspiracy taking in practically everyone in the legal profession, who silently agreed among themselves to interpret the words “due process” subjectively. It seems much more reasonable to suppose that there was at least something resembling a coherent, even compelling, legal theory behind the concept of “substantive due process” for it to have gained the following of such a large number of legal professionals for such a very long time. Yet few if any writers bother to try understanding the substantive due process judges as they understood themselves.
The reality of substantive due process is much deeper. It partakes of political philosophy. Judges since the 1930s have been extremely reluctant to engage in political philosophy because modern notions of deference hold that it is not the judges’ place to consider such things. They are merely to interpret the law; it is for the majority of the people to make decisions regarding political philosophy. Such, at least, is the idea behind modern phrases like “rationally related to a legitimate government interest” and “narrowly tailored to advance a compelling government interest.” These phrases give rise to obvious questions: just what is a legitimate government interest, and what differentiates it from a compelling government interest? The Supreme Court has candidly acknowledged that it does not know what a legitimate state interest is, let alone, how to distinguish it from a compelling one. The only answer one might glean from the cases is that a compelling government interest is one which is backed up by a great deal of Congressional testimony, while a legitimate government interest is anything which the government decides to undertake, so long as it is not so obviously contrary to the plain language of the Constitution to be struck down by the Court. So little guidance has been provided on the point of what a legitimate state interest is, that Richard Epstein has commented that the legitimate state interest test is not a test at all, but merely a statement that anything government chooses to undertake is, ipso facto, legitimate. This is only a mild overstatement. The Court has given us some slight guidance on the matter by declaring certain things to be not legitimate state interests. In particular, the Court has held many times that for the majority to single out an unpopular minority to bear unfair burdens, on the basis of mere prejudice, is not a legitimate state interest. This is usually said in the context of equal protection cases rather than due process cases, but it applies nevertheless because these cases have said that singling out an unpopular group for no other reason than its unpopularity is not legitimate. It seems to follow, therefore, that for the government to deprive someone of liberty in pursuit of such an illegitimate goal, is a violation of “due process of law.”
But why? Here we have found the tip of the substantive due process iceberg. What is it about singling out unpopular minorities to bear unfair burdens, that violates the due process requirement? Here we must turn to political philosophy, and in particular, the political philosophy that underlies the Constitution of the United States.
James Madison explains that governments are created for a reason or reasons. On this point alone there is much disagreement, but for Madison, writing solidly in the tradition of John Locke, government exists to protect the rights of individuals. Following Locke, Madison explains this by imagining what the world would be like without government—in the so-called “state of nature.” In such a world, the stronger person would be able to rob or enslave the weak person. The world would be one of constant physical warfare. This vision led Thomas Hobbes to suppose that there was no such thing as justice itself without a state, and that the creation of the state was also the creation of right and wrong. For Hobbes, it made no sense to say that someone was treated unfairly in the state of nature, because only with the creation of the state did the idea of “fairness” even come about. The Lockeans disagreed with this—for them, there was such a thing as justice even before the government was instituted, and indeed the reason it was instituted was to protect fairness from being subverted by the violence that went on in the state of nature. (It’s a challenging question for Hobbes: supposing people do create the state in order to create the concept of fairness: where do they get the tools to do so? For a man who, like Hobbes, was trying to develop an entirely consistent, materialistic account of the state from the ground up, it is hard to see how he would answer.) But while this gives an explanation of the purposes of the state, it also limits what the state can do. It would be inconsistent for the state, created to protect the weak against the strong, to then become perverted into a tool by which the strong can continue their assault on the weak. Thus, as Madison would say, you must first create a state strong enough to police the bullies, but then you must create a mechanism to prevent the state from falling into the hands of the bullies. Modern economists refer to this as the public choice effect, but Madison called it the problem of faction.
There are two solutions to the problem of faction—that is, to the problem of the state being taken over by the very bullies whom it was created to stop. The first is to put the state under the control of some person or group that is entirely independent of the power of the bullies. This is what monarchy attempts to do. And it was successful in many ways, in retrospect. Henry II’s writ system, which is said to have created the common law, was embraced by the peasants of England because it brought the landlords to heel. But this solution has a major flaw: the person or group that is independent of the bullies might also become a bully itself. Henry II’s subjects may have been happy to have one supreme master rather than hundreds of warring masters, but the king and his descendants can themselves become corrupted by power, and then the problem of the state of nature has returned: namely, a bully is going about beating people up again, this time with the legitimizing name of “state” on his acts.
The second solution to the problem of faction, Madison said, was to divide the power of the state among as many hands as possible, and set them each at odds against each other, to prevent any one particular bully from gaining the supreme power and using it against the weak. This was the invention of the system of checks and balances. In Federalist 51, Madison explains how effective this solution is in preventing the problem of the government being taken over by bullies.
The third solution, which the founders embraced, is to limit the power of the state absolutely. If the state has no authority to do certain things at all, then the problem of government being captured by bullies is again reduced. By creating a government of limited and enumerated powers, the founders believed that the people’s liberties would be protected. But it was not just that the people were protected by constitutional limitations on the state; they were also protected by moral limitations on the state. To repeat: according to the Lockeans, the state is created to protect the people from bullies. As such, it is inherently, logically limited from becoming a bully itself. If it does so, then it is engaged in a logical contradiction, like a corrupt security guard at a bank who decides to rob the bank.
This problem of corruption is particularly acute in a democratic society, Madison explains, because the people not only make the law through their representatives, but they also judge the legitimacy of the laws when called into question, because the people indirectly appoint the judges. If the people become corrupted, and pass, let us imagine, a law taking all property away from Jews, this law might be challenged. But since the people ultimately control the court system—by voting for presidents who choose judges—they might also prevent the courts from striking down such laws, even though these laws are contradictory to the reasons for creating the state.
According to the Lockean tradition, therefore, there is a difference between law and legislation. Legislation is merely a statutory creation of a particular majority. But legislation might be corrupt—it might be an act by bullies to beat up an unpopular minority. Such an act would be, essentially, an act of force unjustified by the principles of public protection that were the reasons for creating the state in the first place. As such it is not law, but merely legislation.
From the very beginning there were those who disagreed with this argument, and who held instead that there was no such thing as law above the will of the government. I have mentioned Hobbes as the most extreme advocate of this position, but there were others. The strongest argument against this position is the same as the argument advanced by today’s enemies of substantive due process: that it gives too much power to the judges to strike down legitimate public acts merely because they subjectively disagree with them. The best early example of this debate is in the dueling opinions of Justices Chase and Iredell in Calder v. Bull, 3 Dall. (3 U.S.) 386 (1798), which is echoed in the opinions of California Supreme Court Justices Murray and Terry in Billings v. Hall, 7 Cal. 1 (1857). But while there are reasonable arguments against it, the argument that there are inherent, logical limits on government authority that derive from the purposes of government itself, is at least a coherent one. And this is the argument that underlies substantive due process.
To see the connection between this argument and the due process clause, recall that in the Lockean tradition, an act by the majority which is motivated simply out of ire, or simply from a desire to, in Madison’s words, “despoil and enslave the minority of individuals,” is not a law, but merely an act of force. It follows, then, that to take property or liberty under such an act of force, deprives an individual of property or liberty without due process of law. The finest explanation of this in the cases is in Loan Association v. Topeka, 87 U.S. (20 Wall.) 655 (1874). There, the Supreme Court held that for the government to spend tax dollars, taken from individuals without their consent (as is the case with all taxes), for the purchase of private railroad bonds to support a private, for-profit railroad run by a small minority of individuals, violated the due process clause. The reason for this holding is that the railroad owners were using the apparatus of the state to steal property for their own private profit—essentially the same as if they had walked down the street with clubs in their hands, stolen money from people on the sidewalk, and invested it in their railroad.
[T]here are...rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.
There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.
Of all the powers conferred upon government that of taxation is most liable to abuse…. To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.
Thus the law violated the due process clause. Of course, such judicial review requires the court to look at the substance of a law, in order to determine whether it is consistent with the principles of lawfulness, or whether it’s just a disguised attempt to steal, or plunder, or do other things that are inconsistent with the reasons for the state’s existence.
One strong argument against this theory is that the phrase “no person shall be deprived of life, liberty or property without due process of law” merely requires some fair procedure to be satisfied before a person is deprived of life, liberty or property, and that the procedural requirement is satisfied when the legislature votes on a particular measure. This, indeed, is the argument that courts generally accept today. But suppose that the legislature were to pass a law singling out one particular person and declaring, for instance, that that person’s land shall from now on belong to another person. This is logically indistinguishable from a group of people coming to that person’s home and forcing him off the land with guns and clubs. According to substantive due process theory, the mere enactment of a law cannot constitute due process, because the purpose of the state is to prevent a person from being deprived of his life liberty or property arbitrarily, and nothing in the majority-vote requirement inherently prevents arbitrary action. Thus the principle of lawfulness requires that a person do something wrong before being punished—as opposed to being punished merely because he is unpopular. Being punished merely because you are unpopular is, simply, to return to the state of nature. As Madison put it in Federalist 51, “[i]n a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”
Early writers pointed out that the phrase “due process of law” derived from the Magna Carta’s “law of the land” provision, which declared that no person could be deprived of his freehold except by the law of the land. If that phrase had merely meant that the king was required to declare “it is now the law of the land that person A’s freehold is no longer his, but is now mine,” then the requirement would have been illusory. As one early court put it, such a constitutional provision would be tantamount to saying “You shall not do the wrong, unless you choose to do it.” Mere enactment cannot satisfy the due process clause, therefore, because the due process clause was intended to prevent special laws whereby unpopular minorities were subjected to unfair burdens simply due to their unpopularity: that is, it was written to require that deprivations of life, liberty and property were engaged in for legitimate public reasons, rather than as a mechanism of bullying behavior.
We require trials before throwing people in jail for murder, even though nobody disputes that laws against murder were validly enacted. Nor would anyone argue that the legislature could simply declare a person guilty of murder—even if it did take evidence at some sort of committee hearing. The principles of substantive due process merely see civil cases in the same way as criminal cases—that a person should not have his earnings or his land taken from him without his having been proven at a trial to have done something wrong. And, again, this was not a new idea in the Lochner era, and it was not a new idea in the Slaughterhouse era. In an article called The Security of Private Property, published anonymously in the American Law Review in 1847, we find the following:
It is certainly a principle, that the general powers of sovereignty are vested in the state governments...[which] are governments of general powers. Yet what are the general powers of government in a civilized society? Is there no lex legum, independent of express constitutional restrictions...? [S]uppose the legislature to pass a law arbitrarily depriving a citizen of life or liberty, without fault or crime on his part, must we look in the constitution for an express disaffirmance of such a power?
This is what substantive due process is all about. When the legislature is captured by a group which seeks to steal property from a minority, or otherwise infringe on a minority, simply on the basis of their political power, it is no longer making law, therefore violating the due process clause.
The reason for the change in understanding substantive due process cases in the 1930s was not that the judges suddenly woke up and realized that “due process” only refers to procedural protections, or even that they decided that mere enactment of a law satisfies the due process clause. Rather, it came from a deep-seated change in attitudes regarding the purposes of the state. Prior substantive due process decisions took it for granted that, since it was not legitimate for an individual to steal property, so it was not legitimate for a group of people to order the state to steal property on their behalf. During the Progressive era, and culminating in the 1937 decisions, the courts came to see that as unobjectionable. The purpose of the state now was seen as “adjusting the benefits and burdens of economic life.” This shift was so major that for students raised on the new conception of the state, things like Madison’s Federalist 51 seem absurd, and even incomprehensible. Moreover, cases like Lochner and other economic substantive due process cases appear incomprehensible as well to such people. This is why they think the substantive due process cases are so extreme in retrospect; they are looking at these cases from the other side of the looking glass, and fail to realize it.
Update: Here is another point I forgot to make earlier.