Tuesday, August 2, 2011

Substantive Due Process Part I: The Evolution of My Views
Mike Rappaport

Recently, I finished the newly published article, The One and Only Substantive Due Process Clause by Ryan Williams in the Yale Law Journal.  It is a very powerful piece and deserves serious consideration.  Prompted by the article, I plan several posts on substantive due process.  In this post, I will briefly describe the evolution of my views on substantive due process.

For the uninitiated, the Constitution contains two due process clauses -- in the 5th and 14th Amendments.  One interpretation of the clauses is that they provide solely procedural protections.  If the government deprives one of life, liberty, or property, then it can only do so after certain procedures, such as a trial or a hearing.  Another interpretation is that the clauses provide not merely procedural protections, but also substantive protections.  Certain substantive rights cannot be taken away from an individual unless under certain limited circumstances.  The right to an abortion as well as the right to liberty of contract are normally deemed substantive due process rights. 

I first encountered the subject in college, where I thought about it mainly as a matter of political theory rather than as originalist constitutionalism.  Being a libertarian, I found substantive due process – especially the kind that enforced Lochnerian rights to liberty of contract – to be especially congenial.  The idea that the Constitution might protect these libertarian rights was quite exciting.  

In law school, I focused on the concept from the perspective of originalism: The question was not whether I liked the rights, but whether the original meaning of the Due Process Clauses – in the Fifth and Fourteenth Amendments – protected not merely procedural rights but also substantive rights.

The most popular originalist argument at the time was that substantive due process was an oxymoron.  By its very name, due process protected procedure.  Substantive due process was thus a contradiction in terms.  This view was often voiced by originalists Robert Bork and Antonin Scalia.

At some point in the last 5 to 10 years, I came to reject that argument (or at least recognize its significant limitations).  If one is an originalist, the question is not what is the inherent meaning of the term “due process.”  Rather, the question is what “due process” would have meant to people at the time of its enactment.  Despite the term “process,” it is certainly possible that it would have a substantive component.  As I wrote in this article in 2008, if a due process clause had been enacted in 1925 during a period of substantive due process protections, it would not be surprising for it to have a substantive component. 

Thus, the oxymoron argument was not dispositive.  One needed an historical investigation of the term.  The problem for substantive due process was that it did not seem that due process had in the main a substantive component at the time of the 14th Amendment.  Edward Corwin’s famous article had certainly suggested that substantive due process was a minority view.  When I met James Ely, a proponent of substantive due process, at a conference, I asked him how many states protected substantive due process at the time of the 14th Amendment.  He replied, “Good question!”  Thus, it seemed to me that, based on the existing evidence, substantive due process was not wrong because it was an oxymoron, but because it was not the historical meaning of the term. 

In the last couple of years, I have toyed with doing the work necessary to determine how prevalent substantive due process was at the time of the Fourteenth Amendment.  But like most issues I have toyed with, I have not had the chance to do the work.  Thankfully, Ryan Williams has now published an article that begins the process of doing that work.  In my next post, I will discuss Williams’s article. 

Cross posted at The Originalism Blog


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Mike Rappaport


For an excellent revisionist history of the doctrine, grab a copy of David Bernstein's recent short (but extremely well annotated), "Rehabilitating Lochner."

Posted by: Bill | Aug 2, 2011 12:48:21 PM

I've often said about Robert Bork that he's an originalist with no real interest in history, which is not a sound combination.

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