Don’t miss Hadley Arkes’ response, “Substantive Due Process: What is the Question, and Why Does It Matter?”

One of the most contested questions in contemporary constitutional law is the status of the doctrine known as “substantive due process.” This reading of the due process clauses of the Fifth and Fourteenth Amendments converts them from saying that a person’s life, liberty, or property may be taken, so long as he or she is provided with due process of law, to saying that such deprivations may not occur at all, if judges hold that a law is “arbitrary,” unreasonable, or unjust.

The “substantive” reading of due process has given us quite a few extremely controversial Supreme Court rulings: Dred Scott v. Sandford (1857), telling Congress it may not prohibit slavery in federal territories; Lochner v. New York (1905), holding that the state may not limit the hours worked in commercial bakeries; Roe v. Wade (1973), inventing a right to abortion on demand; Lawrence v. Texas (2003), striking down a state’s power to prohibit sodomy; and most recently Obergefell v. Hodges (2015), “discovering” that the states must grant marriage licenses to same-sex couples.

Some people applaud one or more of these rulings as “substantively” just, while condemning others. I can think of no one who applauds them all. But I condemn them all, without even considering the substantive case for the justice or injustice of any of the policies invalidated. And I do so for one simple reason: they are all grounded on an erroneous reading of the due process clauses, which has no support in the plain meaning of the Constitution’s text or in the centuries-long tradition and development of due process jurisprudence prior to Dred Scott.

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Laws, Decrees, and Dred Scott

Supporters of various “libertarian” readings of the Constitution have attempted to supply what the plain text of the due process clauses will not. They have searched the history of American jurisprudence prior to Dred Scott in a quest for more respectable precedents in which the language of “due process of law” (or a similar “law of the land” clause that appeared in many state constitutions) was employed by judges to strike down legislative policies. Some libertarian revisionists claim to have found quite a few of them from the revolutionary period through the mid-nineteenth century.

However, in an article published last winter in the journal American Political Thought, I revised the revisionists, showing that in every single such case—and there are nearly thirty of them, almost all at the state level—the judges engaged in no assessment of a legislative policy’s reasonableness or justification. Instead, they assessed whether a statute conformed to fairly minimal standards that characterize a law rather than a decree.

There are several key differences between a law and a decree. A law, properly speaking, is general, impersonal, neutral, and prospective, and it deprives persons of life, liberty, or property only after a fair process in which they can defend themselves. Law governs future conduct, and notifies persons of the legal strictures imposed on their conduct. Decrees, by contrast—even when enacted by legislatures under the appearance of a law—are particular, sometimes personal, targeting classes of persons or species of property for outright forfeiture. They are often retrospective, dictating changes in a pre-existing state of things rather than looking forward to future conduct. And they frequently short-circuit or eliminate a procedural opportunity to defend oneself.

All the pre-1857 cases cited by the due process revisionists inquired into the “lawfulness” of the legislative enactments, and invalidated those that failed the test and in fact had the character of a decree. Yet somehow the revisionists have claimed to find what they were looking for, a roving judicial power to gainsay putatively unjust laws, instead of what is actually there—a straightforward vindication of simple standards of the rule of law. The latter was the steady and unvarying tradition of due process jurisprudence in America, up until the Dred Scott case of 1857.

In that case, Chief Justice Roger Taney attempted to present his ruling as being consistent with this tradition while in fact breaking with it. Taney wrote that the federal law barring slavery from the territories “could hardly be dignified with the name of due process of law” because it deprived the owners of slaves of their property even though (he averred) they “had committed no offence against the laws.” But the federal law gave ample notice that slaves were not to be brought into certain territories, and that it was an offense to do so—the remedy for which was the freeing of the slave.

This was a just result Taney could not abide, and so he twisted the due process clause to achieve the opposite result. Thus began the doctrine that would bear fruit in Lochner, Roe, Lawrence, and Obergefell—that judges could prize a particular kind of liberty claim, or a particular species of property claim, as prevailing over the general, lawful power to regulate conduct, impersonally and prospectively, that legislatures had always enjoyed.

Professor Arkes’s Response

Professor Hadley Arkes, long one of the champions of a judicial power to invalidate legislative policy choices on substantive grounds of justice, recently responded to my American Political Thought article at the Library of Law & Liberty website. Professor Arkes, a good friend with whom I have had a cordial argument for almost two decades about the place of natural law in constitutional jurisprudence, has read my article with some care. He has taken on board my criticism of the facile distinction between “procedural due process” and “substantive due process,” which draws the line in the wrong place between what judges are and are not authorized to do by a due process or “law of the land” provision. There are entire legislative enactments that can be invalidated on due process grounds for the choices the legislators have made—if what they’ve chosen to do is to attack liberty or property by the imposition of an arbitrary decree rather than to regulate future conduct by a general and fairly administered law.

But Arkes wants to push my argument where neither the principles of due process nor the evidence of history will go. First, he writes that “as Franck reads” the nearly thirty cases on which my historical case rests, the judges did not find “something wanting in the substance of the policies that were enacted.” But it is not a question of how I read them; it is a question of what they actually say. Quite explicitly, all of these cases are holdings against the imposition of decrees sailing under the false flag of the rule of law. Professor Arkes offers no alternative reading of any of the early cases my article discusses, so I am content that my historical evidence stands intact.

Next, Professor Arkes allows that none of the “critical, defining criteria of law” that I identified is “contained in the text of the Constitution.” This is not exactly so. They are contained in the text, and culminate from centuries of juridical reflection on the meaning of the expressions “law of the land” and “due process of law,” reflection that stretches back to Magna Carta in the thirteenth century. Such legal phrases are terse expressions of principled norms of the rule of law, norms that the clauses themselves embed in the text of the Constitution—and that wouldn’t be there if the clauses were not.

Morality and the Law

The immediate sequel to Arkes’s claim that such principles are “not in the text” is to say that they are instead “entailed by the very ‘logic of morals.’” This is the key move in his argument, and it is also the precise moment that the argument begins to come apart.

As he goes on to say, “the logic of law is bound up in the first place . . . with the logic of ‘right’ and ‘wrong.’” In other words, for Professor Arkes, the “logic of morals” and the “logic of law” have an utter identity with each other. They are wholly convertible terms, each capable of standing in for the other. In this way, Arkes is able to say that “the question, at every turn,” is whether a law affects our liberty or property “with or without justification.” Whether a legislative enactment deserves respect as law will then depend on whether it can justify itself rationally as right and just—to five justices of the Supreme Court.

But for all his insistence on the logic of law, Professor Arkes has slighted the logic of, well, logic. He has committed the fallacy of composition—the error of believing that what is true of part of a larger entity or system is also true of the whole. While it is true, for instance, that the leaves of an oak tree must be exposed to sunlight (essential for photosynthesis), it does not follow that it is conducive to the tree’s health to expose all of it to sunlight—including the roots, which must be sunk into the soil for the tree to live.

So by the same token, it is true that a certain kind of justification—measuring legislative acts against a principle of justice—is called for when a judge inquires into a statute’s conformity with the norms required by the due process clause. The yardstick is law—the impersonal, general, prospective regulation of conduct that is administered by a due process for making the law known, carrying it out, and giving all a fair chance to conform their conduct to the law or face the legal consequences.

But it does not follow that, under the rubric of due process, statutes are properly subjected to judicial scrutiny with a view to their comprehensive justification as policy choices. No judicial review of the rational ground of a law, or of its conformity to justice along every dimension, is promised by the legal formula “no deprivation without due process of law.” In short, the due process clauses are not legitimate carriers of any constitutional norm against monopolies, or rent-seeking, or irrational legislating, or majority moralizing, or downright stupidity and meanness. There may or may not be other constitutional provisions that do one or more of these kinds of work. But due process cannot do them. To think it can is to mistake one principle of legal justice for the whole of justice, writ large.

Seized by this fallacy, Professor Arkes turns to the Lochner case, and praises the author of the majority opinion, Justice Rufus Peckham, for “testing the rationale of the legislation on its own terms,” regarding whether it was morally right for the state to intervene in the terms of employment in bakeries. But if the constitutional test of the law is the norms of due process, the comprehensive justification of the state’s intervention was simply none of the Supreme Court’s business. If it were the Court’s business, so would be the question of abortion, or of same-sex marriage. And if the judges are authoritative arbiters of the “logic of morals,” we have subjected ourselves to an unelected, life-tenured legal elite whose reach exceeds our grasp. In practical terms, whatever we might say about right and wrong, he who says Lochner cannot unsay Roe, or Obergefell, or even Dred Scott—even as he might resist a decision’s effect politically.

Judicial Review, Natural Law, and the Constitution

The saving grace of Professor Arkes’s argument is that he does not confine his argument to the due process clause, and insist that its text or history does all the work he wants judges to do. In truth, he is not chiefly interested in interrogating either text or history. Any clause can be the entry point for his approach to jurisprudence—due process, equal protection, privileges or immunities.

One begins to suspect that he could do without the text entirely. A quarter century ago, Professor Arkes published Beyond the Constitution, his first comprehensive statement of a natural-law jurisprudence that would empower judges to invalidate statutes on grounds that they lack “justification” in the moral logic of right and wrong. The title said it succinctly: the Constitution does not govern, but points beyond itself to universal principles by which judges govern.

But the judicial power to disregard any law as unconstitutional depends entirely on a Constitution that authorizes some form of judicial review, and that gives the judges intelligible norms, by its terms, against which to measure legislation. Hence, Professor Arkes’s proposal that we go beyond the Constitution and encourage judges to follow the “logic of morals” reminds me of that NORAD blimp that recently came loose from its tether to the ground. Unguided, such a jurisprudence will float this way and that on the wind, and eventually crash to earth, perhaps with very unhappy results. That is the Dred Scott case’s disastrous legacy for the jurisprudence of due process, with which we are still living today.