“Substantive due process” simply enforces the Constitution’s promise that government will not arbitrarily infringe individual rights, or act in ways that exceed the implicit limits on lawmakers’ authority. But because arbitrariness or the rightful limits on government power are matters that cannot be understood except by reference to moral considerations, enforcing the Due Process of Law Clause requires courts to address controversial principles of political philosophy. While this may a complex undertaking, it does not entitle either judges or legislators to impose their subjective preferences on the citizenry. Instead, the Due Process of Law requirement puts legally enforceable boundaries around the power of government, and those boundaries are built on the foundation of equal liberty articulated in the Declaration and the Constitution.
4. The Critics of Substantive Due Process
For decades, conservatives and liberals have lambasted the doctrine of substantive due process, characterizing it as an oxymoron or a trick by which judges cynically write their own policy preferences into the Constitution while pretending to engage in constitutional analysis. According to Robert Bork, “[t]here could be no intellectual structure to support this concept.”1 He and other critics contend that the Due Process Clause guarantees only certain procedural formalities—a hearing or a trial—before a person may be deprived of life, liberty, or property. It does not bar the legislature from eliminating rights altogether, nor does it impose any broader requirements of fairness. As long as the legislature provides some sort of procedure before it takes away a person’s life, liberty, or property, it has met its constitutional obligation.
This argument is deeply flawed, and it dissolves when we examine it carefully. Assume, for instance, that the Due Process Clause requires only a trial or hearing of some sort. Would this requirement be satisfied if the “trial” consisted of a coin toss, or a consultation of the zodiac, or the drawing of lots as in “The Lottery,” or the shenanigans of Alice’s trial in Alice in Wonderland? The answer is obviously no, because these procedures are not guided by rational principles and therefore are not actually trials or hearings at all. The concept of a legal proceeding itself presumes certain standards of fairness.
A memorable scene in the 1980 film Gideon’s Trumpet—based on Anthony Lewis’s book about the Supreme Court’s Gideon v. Wainwright decision—expresses this idea succinctly. Henry Fonda, playing Clarence Gideon, is asked by a fellow prisoner if he really thinks the Constitution guarantees an accused person the right to a lawyer in a criminal proceeding. Fonda begins his answer by reading from the Fourteenth Amendment: “‘No state shall deprive any person of life, liberty, or property without due process of law,’” he says. “I asked them for a lawyer and they wouldn’t give me one. Means I was deprived of liberty without due process of law. . . . They can’t put you in jail without they give you a fair trial.” Note the necessary overlap between procedure and substance: if a trial lacks the elements of fairness, it is not really a trial in the first place. Gideon’s contention was that courtroom procedure is so complicated that if a defendant is forced to represent himself without an attorney, he is in a position analogous to one whose fate is decided by a coin toss. The procedural due process requirement therefore incorporates substantive rights.
The distinction between form and substance recedes from our grasp as we approach it. The two are inseparable in physical reality: all substances exist in some form, and no form can be expressed except in a substance. The same is true in law. A legal procedure is comprised of substantive rules. But procedure is also a substantive right in itself. In one sense, a trial is a procedure—it is a process through which a person goes before being sentenced or acquitted. But anyone who demands a trial is regarding it as a substantive right—as a particular thing to which he is entitled, and without which it would be arbitrary to punish him. A trial can also be subdivided into many substantive rights: the right to cross-examine a witness, for example, or the right not to be compelled to testify against oneself. Taking another step back, the right to a trial can be seen as one substantive component of the accused person’s broader right not to be treated arbitrarily. It is not possible to neatly categorize a trial or any other aspect of these rights as procedural or substantive. The attempt to divide due process of law into “substantive” or “procedural” is misguided.
Moreover, the commitment to abide by fair procedures only makes sense if we are first committed to substantive fairness. Justice Clarence Thomas recently declared that the Due Process Clause “is not a secret repository of substantive guarantees against ‘unfairness,’”2 but this is wrong: fairness is required by the clause’s explicit commitment to law. There is nothing secret about it. It would be pointless for the government to give defendants trials or other procedural protections unless it is committed to ensuring the accused person’s more general right to be treated impartially. Why require an unbiased judge, or allow the accused to cross-examine witnesses, or to obtain a competent attorney, unless we are committed more broadly to protecting against unfairness? What we call procedural due process is only a subset of the Due Process Clause’s more general guarantee against arbitrary rule.
True, the term “substantive due process” does seem at first to be an oxymoron. But that phrase was not invented by the lawyers who developed these ideas; to them, it was simply due process of law. They understood that the formal and substantive aspects of law cannot be divided. And this also helps explain the word “due” in the Due Process Clause. The Constitution does not require just any process but due process—the people have a right not to be treated arbitrarily by the government. The Thirteenth Amendment repeats this word; it holds that no person shall be subjected to involuntary servitude unless he has been duly convicted of a crime. Not all convictions are due, and those that are not due are arbitrary, baseless, or flawed in some other way. Someone who is convicted because the judge is biased, or on the basis of insufficient evidence, is not duly convicted. On the other hand, if the Due Process Clause guarantees citizens the right only to some procedural ritual, without regard to its content, there would be no reason to guarantee “due” process of law—because any process whatever would suffice.
An approach to law that focuses exclusively on process cannot explain the foundations of those processes themselves; it can only take them as arbitrary givens. This process-only approach, which today dominates the legal academy, holds that a statute is lawful simply because it is passed according to rules of promulgation. But the rules of promulgation are also laws, so what justifies them? The Framers did not regard the rules of promulgation as arbitrary assumptions; they established those rules for specific reasons, in accordance with certain standards of political philosophy. For example, the Constitution requires that bills for raising revenue must originate in the House of Representatives, because the Framers thought the taxing power was best left with those legislators who are closest to the people. The Constitution also limits military appropriations to two-year increments, out of fear that an independent standing army would endanger freedom. The requirement that treaties must receive a two-thirds vote in the Senate was adopted in order to ensure careful deliberation over important matters of foreign affairs. A purely formalistic approach to the law cannot offer this kind of holistic account of constitutional structure—instead, it takes the rules of lawmaking as unquestioned postulates, hovering like “skyhooks” without intellectual foundation.3
But if the rules of lawmaking cannot be justified by reference to more basic principles, then there is no particular reason why legislators should honor one set of promulgation requirements rather than another. Suppose a legislature passes a bill in a way not permitted by the Constitution—say, it enacts a statute by a bare majority where the Constitution requires a two-thirds supermajority. Does this violate the rules of promulgation, and render the measure invalid? Or is the legislature just creating a new rule of promulgation which is now entitled to respect? And why should a court prioritize the constitutional
rule over this new procedure? It is no answer to say that the courts are obliged to follow the Constitution; so is the legislature, after all. If rules of promulgation are just arbitrary assumptions, then neither courts nor legislatures have any reason to view the rules listed in the Constitution as more binding than the more convenient new rules that the wayward legislature has now announced.4 In short, a theory by which something is law simply because it is issued according to some rule of promulgation is a useless theory, since it cannot account for those rules. Unless officials are committed to a broader substantive conception of good government, they have no reason to abide by a Constitution that imposes procedural limits on the legislature.
On the other hand, a natural-law theory like that endorsed by the Framers of the Constitution and the authors of the Fourteenth Amendment can account for the existence of the Constitution, the limits it imposes on lawmakers, and the way that it treats individuals. It sees procedural due process protections as only one element of the Due Process Clause’s overall guarantee that the state will deal with everyone in a non-arbitrary manner. If we disregard the principles of political philosophy, and declare that law is whatever the ruling power enacts according to the rules of promulgation, then the constitutional guidelines that control lawmakers and courts begin to look like pointless rituals that cannot obligate the rulers or the ruled.
Not Everything the Legislature Does Is Law
The Constitution itself makes clear that “due process” means something more than the legislature’s decision to pass a bill. For example, Article VI declares that only laws “which shall be made in Pursuance” of the Constitution “shall be the supreme Law of the Land.” Called upon to explain this language, Alexander Hamilton wrote that government acts “which are not pursuant to its constitutional powers . . . will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” But this would have been true, Hamilton observed, even if the Constitution had not said so explicitly. The Supremacy Clause’s wording was “merely . . . an instance of caution” because “that limitation would have been to be understood, though it had not been expressed.”5 In other words, Congress’s lawmaking powers would be limited by both the explicit and implicit principles of the Constitution. This “truth . . . flows immediately and necessarily from the institution of a federal government.”6 The Founders well understood that the question of whether a statute was truly law or only an unauthorized, illegitimate use of force was to be resolved in terms of logic and abstract principle, not just by asking if the bill received the required number of votes.
Abstract principles are unavoidable in any case. Suppose the legislature were to pass an unintelligible statute, or one containing a self-contradiction: one which simply declares, “This is not a law,” or a statute that simultaneously requires and forbids the same act. Would this be a law? In a 1677 decision, England’s Chief Justice, John Vaguhan, said no—“a law which a man cannot obey, nor act according to it, is void, and no law: and it is impossible to obey contradictions, or act according to them.”7 It seems obvious that to call such a thing a law would be absurd. A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is justified in regarding it as void, even if the legislature passed it with full procedural formalities. This is true, even though the Constitution does not expressly forbid self-contradictory statutes. Such enactments are void on account of what Francis Bacon called their “impertinency,” or what Hamilton called “the nature and reason of the thing.”
If one concedes this much, then one must admit that mere promulgation is not enough to make something a law. Instead, the legal status of a promulgated rule must be determined partly by its content—that is, by its substance. We must ask what a law is, and determine whether a particular thing purporting to be a law meets that definition. Even William Blackstone, who thought government possessed “supreme, irresistible, absolute authority,” still admitted that it could not do things that are “naturally impossible,”8 even if it tried to do so in ways that complied with Parliamentary procedures. The theory of “substantive due process” means just this.
The due process of law guarantee makes no sense if everything the legislature passes automatically qualifies as a law. As Justice Greene Bronson of the New York Supreme Court once observed, if everything the legislature does is a law for purposes of the Due Process of Law Clause, then that clause would be “absolutely nugatory. . . . The people would be made to say to the [legislature], You shall be vested with ‘the legislative power of the State’ but no one ‘shall be disfranchised, or deprived of any of the rights or privileges’ of a citizen, unless you pass a statute for that purpose. In other words, You shall not do the wrong, unless you choose to do it.”9
In an article arguing against substantive due process, law professor John Harrison calls Bronson’s argument “circular” because the “conclusion can follow only if the clause is indeed designed to prevent legislative deprivations.”10 In Harrison’s view, the due process of law requirement only “require[s] compliance with existing law”11 or “imposes the rule of law and does nothing else.”12 But this does not overcome the force of Bronson’s point. To begin with, the tradition within which Bronson was working did indeed hold that “legislative deprivations”—arbitrary restrictions or confiscations imposed by the legislature—were among the things that the due process requirement was written to prevent. Bronson’s words were a straightforward application of the constitutional requirement that the legislature respect the principles inherent in lawfulness. This is not circular reasoning, because those principles are ontologically prior to legislative acts—they exist whether or not the legislature recognizes them—and they explain, justify, and limit what qualifies as law. On the contrary, the proposition that everything a legislature does qualifies as law really is circular: it assumes its own premises, since it would mean something is law just because it purports to be. By that reasoning, a statute is lawful because the ruler promulgates it—which means everything government does automatically satisfies the due process of law requirement.
This cannot be what the authors of the Fourteenth Amendment meant. As Harrison admits, they were primarily concerned with mob violence against former slaves and the Black Codes that Southern states adopted at the Civil War’s end, which sought to deprive Americans of their rights to travel, vote, run businesses, or own firearms. The Due Process Clause thus imposed “a federal requirement of legality,” aimed largely, though not exclusively, at overturning the South’s “unwritten constitution” of social segregation and terrorist oppression.13 Yet Harrison maintains that the clause is not offended if the legislature restricts individual rights through a duly enacted statute. The problem with this is that the post–Civil War Black Codes were statutes, and thus legal in this sense, just as the stoning of Soraya M. or of Tessie Hutchinson in “The Lottery” are legal in this sense. It is implausible that the amendment’s authors considered promulgation by a corrupt or rebellious legislature—or by a sham legislative process—sufficient to satisfy the Due Process Clause. A legislature could easily pass a statute giving lynch mobs (perhaps euphemized as “the militia”) unlimited discretion to adjudicate and punish perceived wrongs, or a statute assigning the automatic death penalty for vague crimes such as being “uppity.”
That is not far different from what did happen in the decades following the Civil War. In a 1923 case, Moore v. Dempsey, the Supreme Court overruled the convictions of five black defendants who, after a show trial, were condemned for having sparked an Arkansas race riot.14 The all-white jury heard testimony from black witnesses who had been tortured into implicating the defendants, and the defendants were not allowed to consult with the lawyer appointed for them before the 45-minute trial opened. The neighborhood and the courthouse were surrounded by an armed mob whose efforts to lynch the defendants had been mollified only by local officials’ promise that the defendants would be convic
ted and sentenced to death. “[I]f, in fact, a trial is dominated by a mob so that there is an actual interference with the course of justice,” declared the Supreme Court, in reversing the convictions, “there is a departure from due process of law.” If “the whole proceeding is a mask” in which “counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion,” the principles of due process would be offended even if the procedural “machinery” had operated with “perfection.”15
In other words, a substantively arbitrary procedure cannot be made any less arbitrary just because it receives the blessing of public officials. If a statute is passed specifying how officials are to toss coins, consult the zodiac, or convene lynch mobs, those things would still be arbitrary. And even if, as in the Moore case, a mob mimics the superficial procedures of a trial, it is still a lawless mob. In short, Justice Bronson was right: if the legislature has unrestricted power to designate as “law” whatever it likes, the promise of due process of law makes no sense.
The Due Process Clause does, as Harrison says, impose a rule of law requirement. But that requirement is not satisfied by the legislature enacting statutes. The statutes themselves must also consist with the principles inherent in the concept of lawful order: generality, regularity, fairness, rationality, and public orientation. These principles are what make an official pronouncement law, rather than mere force. When a ruler disregards those principles, he acts unlawfully—beyond the limits of his delegated authority. His actions are then arbitrary and unauthorized, like the bank guard who robs the bank, or the arbitrator who exceeds his chartered powers. The constitutional promise that government will act in a lawful way inherently limits what the executive, legislature, or judiciary may do, because legislative approval cannot transform an arbitrary act into a non-arbitrary one, or make an unauthorized action authorized. This is what Justice Chase meant when he said in Calder that legislatures “cannot change innocence into guilt; or punish innocence as a crime.”16
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