Terrence Watson at Fusionist Libertarian offers some thoughts on incorporation and due process which I think warrant a few more observations.
In my previous post I observed that all due process is substantive due process, and that so-called “procedural” due process is actually just a subset of substantive due process. Since this runs against the legal consensus, it deserves more explanation. First, we have to keep in mind that the distinction between substantive and procedural due process is actually rather recent, and was devised by the New Deal generation, in its efforts to demolish what it derided as “substantive due process.” The term first appears sometime in the 1940s. Before then—during the heyday of so-called “substantive due process”—that term was not used. To its practitioners, it was simply “due process of law.” And that’s the way it ought to be.
The term “due process of law” can be better understood by considering its opposite: arbitrariness. The “due process of law” requirement means (among some other things) that the government may not deprive you of life, liberty, or property arbitrarily. If it sets up an arbitrary procedure whereby to deprive you of your rights, that is only one form of arbitrariness. If, for example, the government says that all murder trials will be conducted by the flipping of a coin, that would be arbitrary and would therefore not be the due process of law. But even if fair procedures are used, a government action might also not be due process of law. If the state were to say “we’re going to execute all Scorpios, but do so only after a fair trial determines that they are, indeed, Scorpios,” such a thing would also be an arbitrary use of state power to deprive you of your rights. It would therefore not be “due process of law.”
Of course, it’s rather silly to speak of something being a fair means of implementing a (substantively) arbitrary rule, since it isn’t really possible to fairly apply an unfair rule. But the reverse is also true—an unfair procedure renders a substantive rule arbitrary also. Thus procedure and substance are intertwined in the law. Procedures are just one kind of substantive rule. The due process clause bars the government from depriving you of your rights arbitrarily, whether through substantively arbitrary rules, or through that particular class of substantively arbitrary rules that we call criminal or civil procedure.
Remember also that law is a concept. It includes certain elements which must be present before a thing can be called a law. Not everything that a legislature enacts is a law. Some things that legislatures do are not laws. (Even the most dyed-in-the-wool positivist must admit this, since some things are just resolutions, or special orders, for instance, rather than laws.)
Very well, given this premise, what are the elements of a law? This is a very complicated question, of course, but there are some famous traditional answers. James Wilson, delegate to the Constitutional Convention, explained that “law is called a rule in order to distinguish it from a sudden, a transient, or a particular order: uniformity, permanency, stability, characterize a law.” More famous was Daniel Webster’s definition in his argument in the Dartmouth College case, where he defined laws as “the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.”
Since there are certain ingredients that have to go into a legislative enactment before it qualifies as “law,” those enactments that lack these ingredients aren’t laws. And thus if the government deprives you of life, liberty, or property via a legislative enactment that lacks these ingredients, the consequence will be that you have been deprived of your life, liberty, or property without due process of law. You will see, if you look, that this is the reasoning behind the Hurtado case and the Loan Association case, two of the great leading cases on “substantive due process.” I explain this at greater length in my post, "what is substantive due process, really?"
It is supremely ironic that the Progressive legal intellectuals like Roscoe Pound, who criticized the substantive due process cases so heavily, accused their opponents of “formalism.” In fact it was they who were the formalists. In their view, law is whatever is enacted by a legislature in the form of a law, regardless of its content. Their view is focused entirely on form, ignoring substance. By contrast, the classic substantive due process judges of the Gilded Age understood that law isn’t just a label that can be attached to whatever a legislature happens to enact—law means something, and if an enactment lacks those things, then it is not a law and therefore violates the due process of law requirement.
Watson is absolutely right that positivists/formalists like Scalia who accept the premise that law is whatever a legislature says it is—the old position of Thrasymachus, actually—would reject the concept of substantive due process because they reject the possibility of an objective good that can be understood by reason. And he’s even more right that the framers of the Constitution did believe in moral truth. That’s why they said in the first sentence of the Constitution that “liberty” is a “blessing.” That’s why they had said a decade earlier that there are certain rights which no legitimate government may deny, and that states may only do those things which states may “of right” do. The founders believed in an objective moral and political right, and if we try to operate the constitutional engine without an investment in political philosophy, then we’re running it on empty.