A Response to Tim Sandefur’s Views on Substantive Due Process

In a previous post, I reviewed Tim Sandefur’s Cato Unbound essay on substantive due process.  I wrote:

Tim’s piece is interesting, but his interpretation of the Constitution is too abstract for my tastes.  I believe that the original meaning requires that one stay close to the original materials and only apply abstract principles if one finds those principles in the original materials.  See here.

Tim responded in e mail:

But if you’ll check out the law review article I’m summarizing, you’ll see I root my argument VERY deeply in founding-era writings, perhaps excessively so. Due to space constraints I had to leave this out, mostly, in the Cato Unbound piece. . . .  But I definitely do “stay close to the original materials and only apply abstract principles if one finds those principles in the original materials,” showing how my argument is based on Madison, Hamilton, Paine, Milton, Jefferson, and even Aristotle. I’m not sure that makes me an “originalist” per se, but I’m certainly not just abstracting.

I appreciate Tim’s response, and readers should look at both his Cato Unbound Piece and his longer law review article.  But let me explain why I object to Tim’s interpretive approach.

One can distinguish between three different ways of interpreting the Constitution.  First, one can have an approach that seeks very hard to find out how a reasonable person at the time would have understood constitutional clauses in context.  In undertaking this task, one looks for the best evidence of how people at the time would have and actually understood the clauses.  This is my approach.  In employing this approach, one would look both at evidence of ordinary meaning and of legal meaning.  As I stated in my prior post, I believe that Ryan Williams has done a great job of using this approach to show how people at the time of the 5th and 14th Amendments would have understood the term “due process of law” and why they probably would not have found a substantive component in 1789 but would have found one in 1866.

I think it is clear that Tim’s article does not engage in this task.  To mention just aspect of of his piece, Tim finds some evidence in Coke, argues that various framers learned their law from Coke’s treatise, and then infers that “due process of law” would have been understood as prohibiting arbitrary action.  He does not wrestle with Ryan Williams’s evidence.  Instead, he prefers to operate on a more abstract level, but without justifying that that is how people at the time would have understood the provision.  As he states: “Ryan William lays out what he takes to be various readings of the Due Process Clause.  My point here is to emphasize the connections or overlaps of these readings.  In my view, each is a way of defining and preventing government arbitrariness.”  But one cannot simply look at specific meanings and then infer a general principle if people at the time did not do this.

Second, one might have an approach that seeks the original meaning, but does so in a way that is disposed to find a minimalist originalist meaning.  Jack Balkin is one leading practitioner of this approach.  This approach is originalist in the sense that one looks for the original meaning.  I do not find it persuasive because I believe its minimalist preconceptions leads it to ignore important pieces of evidence of the original meaning.  Under this approach, one can as a matter of construction (rather than interpretation) use one’s political theory and other guides to fill in the details of the abstract original meaning.  While Balkin is a modern liberal, libertarians could use this approach to argue for a libertarian gloss on the Constitution, but I don’t think Tim is doing this.

Finally, there is the approach that I believe Tim is employing.  This is the approach that I think most libertarians employed before Randy Barnett’s influential move towards originalism.  I have never really understood this approach.  As best as I can make it out, this approach basically attempts to find libertarian principles in the historical materials.  While such principles can sometimes be found, the method does not attempt to argue that this was the original meaning of the provisions.  Nor does it attempt to deny that nonlibertarian principles can also be found in the historical materials.  Why, then, one should follow the libertarian principles rather than the nonlibertarian ones, except for a preference for libertarianism, is not clear. Put differently, it is not clear why anyone would regard this as law, rather than political theory, and if it is political theory, why finding it in the historical materials matters very much.  I genuinely would like to know the answers to these questions.

I don’t want to be too critical of Tim.  But my first criticism was short and so I thought I would spell out some concerns that I have had for many years about the approach many libertarians take to constitutional interpretation.  I am quite interested in their response, not least because I also consider myself a libertarian.

Reader Discussion

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on February 13, 2012 at 13:28:44 pm

"But one cannot simply look at specific meanings and then infer a general principle if people at the time did not do this."

This is an interesting discussion, but I'm not sure I understand the part of your criticism quoted above. It seems to me that looking at specific meanings is often the only way we can objectively deduce what general principles were held by people at the time. Then and now, general principles are often implicit in the drafting and application of specific laws. Explicitly articulating the general principle would be an academic exercise that neither lawmakers nor judges would necessarily bother to undertake (sometimes, the lawmakers and judges aren't even aware of the larger implications). Most likely, the lawmakers are focused on crafting a law to resolve a specific problem and the judges are focused on applying that law as written (usually). And it is only when someone steps back and collects and reviews these disparate laws that an unarticulated principle underpinning their enactment is finally discerned and articulated.

In our own attempts to understand the original meaning of these laws, examining how the laws were written and how they were applied - what rights did they protect? - tells us something about the implicit principles of the people enacting the laws. This may lead us to an inference about a general principle that the people at the time did not make, which is nonetheless implicit in the laws they wrote. It seems to me that an opposing view would require that no original meaning in terms of general principles could ever be discerned, unless those principles were explicitly recorded in the contemporaneous historical record somewhere.

It appears that Sandefur is doing just this - looking at some disparate laws enacted to solve specific problems of the time and discerning an unarticulated general principle that is the logical implication of those laws (i.e., that due process of law encompasses rights beyond simply the promise of a formal process). I'd be interested to hear further comment on how this approach is counter to an originalist's approach, if you have time.

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jack terry
on February 13, 2012 at 16:34:06 pm

Jack, The question is whether people at the time would have viewed the clauses as Tim does. If not, that is not the original meaning. He derives principles from historical materials but other principles could also be derived with equal justification. Ryan Williams purports to derive narrower principles than Tim does and present good evidence that that was how the clauses were understood.

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Mike Rappaport
on March 05, 2012 at 16:12:38 pm

1) You're still confusing onisiraligm and original intent. Scalia's jurisprudence isn't concerned with what the Fathers may or may not have said outside the Constitution, but in strictly constructing what they did write in the Constitution itself. Justice Thomas is more of a believer in original intent, Scalia's more of a strict constructionist.2) That depends for instance, Brown v. Board of Education cites Justice Harlan's dissent in Plessy v. Ferguson. The Supreme Court is not bound by any other court, nor are they bound by even their own prior decisions. A Justice can cite a dissenting opinion whenever they choose, especially if they're trying to show how legal doctrines have changed over time. I can't think of a single Justice at any point in history who hasn't used a dissenting opinion as authority in some way.At a lower court level, Supreme Court dissents are merely persuasive, and not binding, but the Supreme Court has no obligation to remain constant on every issue nor would it be good for anyone were that the case.

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on March 06, 2012 at 07:18:15 am

Mithras,Just for the heck of it, I'm gonna take a shot at your question to see if I end up raewhyne near the correct answer. After you read the brief, please tell me where I butcher it. This argument matters because:1. It gives DC the ability to say that even under an originalist understanding (often the preferred route for pro-gun interests), there's little evidence the ratifiers of the 2nd amendment were concerned about an inalienable individual right. It's more accurate to say the framers were trying to limit federal authority over state regulation of militias. 2. Since DC is a federal district and not a state, (1) basically means that the second amendment might not even apply here on the merits. There's nothing equivalent to the federal government trying to strip a state of its exclusive regulatory jurisdiction. In other words, in DC there's no mechanism to tether the operative and prefatory clauses of the second -- so the amendment is rendered moot in a way. 3. The implication is that the only place to really find the individual right is the 9th, due process clause, etc. But we all know that conservative judges can't really do that -- since it legitimizes privacy rights (sexual, reproductive, etc.)I'm not saying this is necessarily my position -- I'm just guessing about the argument, and wasting DOL blog space on a mental exercise :)

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on March 06, 2012 at 11:27:41 am

Okay, having read the brief, souqtiens:1. Your interpretation is that states have absolute authority over arms regulation, citing the practices of some states to ban ownership by disloyal citizens and concealed carry. Three issues with that: First, are the practices of our governments during a period of revolution and insurrection really persuasive evidence of the scope of the constitutional principles established? The Alien and Sedition Acts don't guide us with respect to interpreting the Free Speech Clause. Second, does a restriction on concealed carry really imply that the right to keep and bear arms is not individual or fundamental? We have laws against obscenity and defamation, but they aren't evidence against the importance of the right of free speech. Third, other state constitutional provisions contemporaneous with and whose text parallels that of the 2nd Amendment - such as North Carolina's - have been interpreted as granting an individual right.2. Your interpretation implies that, as against the federal government, individuals have a right to keep and bear arms that requires heightened scrutiny. What level of scrutiny would apply? 3. Is D.C. a "free state" within the meaning of the Second Amendment as the brief interprets it?egarber-I think under the logic of the brief, the regulation of arms is part of the state or local police power, so D.C. doesn't have to claim it has the same power to raise a militia as a "free state" to also regulate guns. I'd like to have seen that spelled out. I think you can make an argument the other way, that the 2nd Amendment gives individuals a right as against the federal government or any other government that doesn't fit the (federalist, freedom-protecting) definition of "free state".

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on March 06, 2012 at 15:19:50 pm

All argument about the sliilness of a judicial philosophy that infuses a modern ideology into bits and pieces of what the framers said and passes itself off as what the founders originally intended…There's actually a difference between originalism and original intent theory (even though they have many similarities). Scalia is less concerned about what the intent of the Framers were than what they actually said. Original intent theory is more interpretive, while originalism tends to be more strict in its following of the Constitution. Scalia actually gave original intent theory a slap in his speech.I’m wondering if any other Justice in the history of the Court has done this.It's quite common after all, the only precedent that is binding on the Supreme Court level are cases that the Supreme Court has itself decided. I know Judge Easterbrook of the Seventh Circuit does the same thing frequently as well. (Such as the Hill v. Gateway case which almost entirely relies on Easterbrook's previous decision in the ProCD case.)

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