Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
Over at Cato Unbound, Tim Sandefur has a piece defending substantive due process:
The Constitution, too, is a law. Thus by promising that government will accord us due process of law, the Constitution not only blocks government from breaching the explicit boundaries on its authority, but also from violating inherent limits that arise from the logic of the constitutional “contract” itself. The Constitution is the employment contract by which government is hired to protect society’s bank from being robbed. Implicit in that contract is the principle that government may not rob the bank itself: may not violate individual rights, or act in its own self-interest, or serve those who have only exercised raw political power to obtain what they want.
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.
Still, my own views about substantive due process have evolved over time to become more open to it. See here. The most popular originalist argument against substantive due process is that it is an oxymoron. By its very name, due process protected procedure. Substantive due process is thus a contradiction in terms, a view often voiced by originalists Robert Bork and Antonin Scalia.
I agree with Tim that this is not a good argument against substantive due process. 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.
It may be that the Framers of the 14th Amendment (or less plausibly the 5th Amendment) wrote substantive due process into the Constitution, but one must establish this. One must show that substantive due process was one of the meanings of due process at the time of enactment and that there are strong reasons for believing that the Framers would desired to use that meaning.
In my view, prior to Ryan Williams’s 2010 article in the Yale Law Journal, no one had provided anything like the degree of evidence necessary to sustain this burden. But Williams’s article is impressive. Here is the most important evidence he provides:
By the time of the Fourteenth Amendment’s ratification in 1868, courts in at least twenty of the thirty-seven then-existing states had endorsed some version of substantive due process in connection with interpreting either due process, law-of-the-land, or similar provisions in their own constitutions or the Fifth Amendment Due Process Clause. By contrast, courts in only two states—New Hampshire and Rhode Island—had explicitly rejected a substantive role for such provisions. The New Hampshire precedents, which interpreted “law of the land” as a reference to duly enacted law, dated from 1817 and had not been substantially revisited or elaborated upon in the following decades. The Rhode Island decisions, which followed shortly after the New York Court of Appeals’s decision in Wynehamer and which similarly addressed a challenge to the constitutionality of state prohibition legislation, interpreted that state’s law-of-the-land provision to be exclusively a guarantee of procedural protections in criminal cases. The Rhode Island decisions have been cited by critics of substantive due process as support for the proposition that Wynehamer “was not a typical case,” and that “state courts usually reached the opposite conclusion” with respect to the meaning of due process and law-of-the-land provisions. But in view of the many decisions from other states endorsing a substantive role for due process and law-of-the-land provisions, this conclusion seems difficult to square with the historical record.
This is extremely important. If 20 of the 37 states endorsed some version of substantive due process and only 2 rejected it, that suggests (along with the other evidence Williams cites) that, when the 14th Amendment was enacted, due process with a substantive component was a much more common understanding of due process than was purely procedural due process.
But this understanding of substantive due process comes with a limitation on it. Williams only finds support for two relatively narrow types of substantive due process in the 14th Amendment: the general law conception and the vested rights conception.
According to Williams:
[The] general law conception interpreted due process to require general and impartial laws rather than “special” or “class” legislation that imposed particular burdens upon, or accorded special benefits to, particular persons or particular segments of society. This conception of due process as a guarantee of equal and impartial laws bears some resemblance to modern doctrine under the Fourteenth Amendment’s Equal Protection Clause . . .
The vested rights conception of due process prohibited two closely related forms of legislative interference with private property: (1) depriving persons of property for use by the public without compensation and (2) transferring property from person A to person B, either with or without compensation.
Although Williams does not spell out these conceptions in detail, my sense is that the conceptions he articulates are narrower than the conception that Sandefur defends.
While I found Williams’s article quite powerful, his piece does not settle the matter for me. One wants to examine his evidence and to grapple with it on one’s own. I understand that the Yale Law Journal will be publishing a substantial critique of his piece, which also has to be considered.
But my bottom line is the following: I used to reject substantive due process for a variety of reasons. I now have an open mind and moderately lean towards a limited version of it.