If Matthew Franck disagrees with me on the question of "substantive due process," that's fine. But it's not okay to misrepresent the facts as well as my argument, as he does in this post on National Review's website.
He claims both that there is no Originalist case for "substantive due process," and that I have admitted as much. Neither is true.
It is true that I do not consider myself an Originalist, because I find the normative and linguistic claims made by Originalism unpersuasive. I rest my beliefs regarding constitutional meaning not on what the authors of the law meant to do, or thought they were doing, but on what they actually did. It is not true, however, that I have admitted that there is no case to be made for "substantive due process" if one does accept Originalism. Quite the opposite. The record, as I have exhaustively shown in my writings, which Franck claims to have read, is that the authors of the Constitution of 1787 as well as the authors of the Fourteenth Amendment, were entirely familiar with the idea of "substantive due process." They called it simply "due process of law," and accepted it as an inherent and praiseworthy part of our legal tradition and our constitutional system.
The most modest claim that can honestly be made is that the Fourteenth Amendment's Due Process of Law clause incorporates the idea of "substantive due process" as an Originalist matter. That is because the authors of that amendment in 1868 were deeply familiar with the idea, referred to it when writing and ratifying the amendment, and made no objection to it either then or in discussions of Dred Scott or other cases.
I believe the evidence shows that the 1787 framers were familiar with the idea, too, and therefore the Originalist argument reaches even further back.
I believe the argument goes still further: I argue that one need not consult the authors' or ratifiers' original intentions or meanings, but that the objective meaning of the term "due process of law" inherently obliges us to apply what we call "substantive due process," regardless of the authors' understandings. I explain why at length in Conscience of The Constitution, and need not repeat it here. Franck is certainly free to disagree with me on the latter point, but the former propositions are matters of objective fact, facts with which Frank either is familiar, or has a responsibility to make himself familiar. Those who are not familiar with the historical record should consult not only my writing but that of Frederick Gedicks or Ryan Williams.
Franck has provided some insightful criticisms of Gedicks and Williams in this article. But he goes on to reveal the weakness of even his efforts at nuance. He admits that due process of law forbids arbitrary rule--that is, he concedes the Originalist case for "substantive due process"--but then tries to distinguish the "arbitrary" from the "irrational," and argue that due process of law only forbids the former, not the latter. He says that "an act of sovereign power can be...arbitrary and reasonable."
This is not correct, except in the very special case that I note in Conscience (although Frank seems not to have noticed it), where one must choose between equally rational options. Deciding whether the driving age should be 18 or 17 or 16 is "arbitrary and reasonable" in this very limited sense, because the options are all reasonable, and one just chooses among them. But that doesn't seem to be what Franck means, because he goes on to say that "to be governed arbitrarily is not incompatible with being ruled by reason, even by wisdom, in the making of particularistic judgments and decrees."
That suggests some sort of wise aristocratic dictator ordering the ruled to do this in this case, and that in another case, and thus being arbitrary but reasoned. I think that's wrong. I think no reasoning being can act except according to rational principles, and still be reasonable. Of course, even if I were wrong about that, the Constitution guarantees us not just some kind of rational rule, but a particular kind of rational rule--that is, rule by law, which is the opposite of patricularistic judgments and decrees. If it were possible--which I deny--for there to be reasonable rule by particularistic judgments and decrees, this would still not be a rule of law. It would, at best, be a form of administrative rule, which Hannah Arendt rightly called the "rule of cleverness" rather than the rule of law.
If I'm right about that, then substance inherently overlaps with procedure at the question of arbitrariness. Suppose the government decided murder trials by coin toss. That is certainly a rule. It is regular, specific, precise...but still arbitrary and irrational, and thus not a rule of law. Or take the example I give of Shirley Jackson's The Lottery. the ritual there is certainly regular and systematic. But it's also irrational, and deprives people of life without sufficient justification. the village is not a rule of law society.
And if I am right about that, then there is nothing at all "radically new" about reading the substance of a law to determine whether it comports with Due Process of Law. That is, in fact, exactly what's going on in Gideon v. Wainwright, when the Court says that the modern legal system is so complicated that a defendant without a lawyer might as well be having his fate decided by coin toss.
An order that says "Do X because I say so" is, at least for the purposes of law, precisely the same as an order that says "Do X because God told me to tell you so," and that is exactly the same as an order that says "Do X because [I'm not going to tell you why]" and that's the same as an order that says "Do X because bgkjnvoiwnv44f." In all of these cases, the citizen is having his rights taken away, not in accord with a rational principle but with what is--in substance--a mere assertion of power.
Franck thinks that the Due Process of Law Clause forbids, not irrational laws, but laws that are not "general" and "prospective" (p. 141), and requires that the people be governed by "laws [that]...inform [the people], publicly, of the polity’s expectations regarding their behavior and, if need be, by punishing breaches of those expectations." (126). But as we recall from The Lottery, or from Rothbard's famous takedown of Hayek's "generality" principle, mere generality is not enough to satisfy either rationality or liberty. A law that declares that all girls under 16 years of age are now 16 years of age is certainly general and prospective. It certainly informs the people publicly of the polity's expectations regarding their behavior. But it is not a rational principle, and therefore does not qualify as a rule of law. And even if it did, the Clause protects our right not just to Due Process of Law, but to liberty. It contemplates laws that deprive us of a liberty that is already ours. If the Clause contemplated such a radical breach between form and substance as Franck offers--if it required only generality and prospectivity--then a law that said "the people shall no longer have liberty" would satisfy the Clause. This self-contradiction is basically what Franck is arguing for, and it shows how off-base his attempted cleaving of form and substance really is. The Clause does not say "The people shall be governed by law." It says people shall not be deprived of liberty except by Due Process of Law.
Note that Franck does not mention Cummings v. Missouri, another prototypical "substantive due process" case that never mentions the Due Process of Law Clause (common among pre-New Deal "substantive due process" cases). It says that "what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding." That sort of reasoning is utterly incompatible with the idea that anything that's general and prospective satisfies the due process of law requirement.
Franck's assertion about generality and prospectivity also commit the common fallacy of mistaking the specific case for the general rule. Why are generality and prospectivity and "publicness" required? Because those are part of what it means for a thing to be a rule--i.e., a law. By not taking that step up, Franck regards Due Process of Law as individual sticks, and overlooks the bundle. The reason those things are required is because of the system's overall normative commitment to non-arbitrary rule.
I roll my eyes at the hoary conservative assertion that Due Process of Law rightly understood shouldn't encompass "any judicial enforcement of the principle of liberty," or that "judicial decisions that vindicate this understanding of the liberty protected by the due process clause" are somehow an abuse. This attempt to limit the Due Process Clause to just one branch or the other is ludicrous. If something violates the Due Process Clause, the courts are bound to regard it as null and void, no matter what its source. That simply is the "judicial enforcement of the principle of liberty." It's just like conservatives to try to divvy this stuff up in this senseless, unprincipled way. If I go to court and say "I have a right to marry a man, and the law deprives me of that right for no good reason," and then the court listens to the government's reasons, and then says "Nope, those reasons aren't good enough," the conservatives claim that it has "invented a right to same-sex marriage," when that is not what the court has done at all. Instead, it's found that the defendants' justifications for depriving me of Liberty are not sufficiently reasonable to qualify as lawful in this normative, constitutionally binding sense. Franck's contention to the contrary isn't reasoning, it's spin.
And I do worse than roll my eyes at statements like "authorize courts of law to second-guess, undo, and remake the policy judgments of legislatures regarding the general, prospective regulation of conduct, under some general judicial authority to mete out distributive justice in the name of 'liberty' or 'property.'" This is a conscious misrepresentation of what the Due Process of Law theory is about. I say conscious because Franck claims to have read my article and those of others, and should know better. This is a straw man. Nobody at all has said anything about the "policy judgments" of legislatures. We're talking about the constitutional authority of legislatures, which is entirely different, as I am at pains to explain in the final chapter of my book. And no court, no matter how liberal, has tried to "mete out distributive justice in the name of 'liberty' or 'property.'" They've told legislatures that they can't do this, or can't do that, or that they can do this or that, and they've often been wrong, but that is not the same thing. Franck is here engaging in nothing more than name-calling.
But what Franck and his allies make clear to readers who pay attention is that "judicial restraint" conservatives aren't really concerned with advancing Originalism, they're concerned with opposing the idea of judicial review itself. They're attacking the idea that courts should have any power to declare that a law exceeds constitutional limitations, regardless of how irrational and unjust that (purported) law may be. So long as a bill gets the requisite votes, or is approved through the applicable ritual, whatever that ritual may be, then it is simply the law, full stop. By that theory, a law that said "this is not a law," or that forbade and required the same act simultaneously, or that said "We don't like Tim Sandefur, so all his property now belongs to Matthew Franck," or that said "anyone who commits hdmJdjr63&: shall be put to death," would simply be binding, without any judicial check. There would then be no legal limit on the power of the ruler, who could treat us in whatever way he or they saw fit. Whatever else that might be, it is not a rule of law. And whatever else one might say about it, there is no Originalist case that can be made for it.
On the contrary, an honest reader of the history finds that the framers believed that the role of the Constitution was to cabin government actions within the boundaries of law--a law enforceable by the courts. "An elective despotism was not the government we fought for," wrote Jefferson,
but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.
The lex terrae principle, now called "substantive due process," was five centuries old by the founders' day. They didn't call it "substantive due process." They called it "law of the land," or "due process," or "constitutionalism" or "the rule of law and not of men." But conservatives like Franck and his colleagues are so devoted to depriving women of their right to abortion, that they are willing to cut down the centerpiece principle of Anglo-American common law constitutionalism if necessary. And then where would they hide, due process of law being flat?
Update: Due to a website glitch, I had to reconstruct the last half of this blog post after it got deleted.
Update 2: Huh? Franck writes,"in the nature of things it was quite impossible for [Cummings v. Missouri] to have anything to do with the due process clause, for Cummings was decided in January 1867, eighteen months before the Fourteenth Amendment became operative and brought the new due process clause to bear on the states." So, a case decided just before the Amendment was written is...by that fact, irrelevant to an Originalist understanding of the Amendment? Franck's got a quirky notion of Originalism, indeed. Normally, contemporaneous court rulings are considered highly relevant to such analysis!
I didn't say, of course, that Cummings was decided under the Due Process of Law Clause. I said the opposite. But Cummings is indicative of the style of legal reasoning of judges in the 1860s, and "substantive due process" is our name for that style of legal reasoning. Once again, Franck is counting the hairs to prove there is no beard.
Franck also again mischaracterizes my argument. I have never suggested that the unjust is the same as the arbitrary. I've said that the question of whether a law is unconstitutionally arbitrary cannot be answered by focusing exclusively on the formal or procedural aspects of a challenged law, as Franck would have us do. Instead, the question of whether a law is arbitrary must be answered by looking at both the procedural and the substantive, because the Constitution deals with substance, and not with shadows, as Cummings says. (Incidentally, that passage from Cummings was a paraphrase of Justice Story's dissent in Briscoe v. Bank of Commonwealth of Kentucky (1837)). If, like Franck, we focus only on such procedural or formal questions as "regularity, generality, prospectivity, notice, and the like," then a law that required a jury to use a coin toss, or that required the killing of one randomly selected person each year for no reason, as in The Lottery, would pass muster. So would a law that simply declares "nobody shall have liberty anymore." But, as I've said, there is no Originalist argument for this proposition. Nor any other kind of argument.
Finally, Franck claims that he "would be willing to consider an affirmative showing that [Justice] Curtis and [President] Lincoln, prior to Dred Scott, were familiar with and embraced the idea that the due process principle could be brought to bear against legislation that was regular, general, prospective...[etc.]" I've provided such evidence at great length in my book and elsewhere, as have Professors Williams, Gedicks, and many others. The earliest express appearance of "substantive due process" before the U.S. Supreme Court is Daniel Webster's 1819 Dartmouth College argument, an argument cited time and time again by the Supreme Court throughout the nineteenth century as the finest explanation of the theory in its records. Marbury v. Madison, too, used a similar method of reasoning. And these cases were 150 years after Giddings v. Brown, another "substantive due process" case in colonial Massachusetts. Nineteenth Century lawyers knew these things like the backs of their hands. But Franck claims others don't know history?