Who’s Afraid of “Substantive Due Process”?

My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”[1]—must surely stand as one of the most searching and thoughtful in recent memory.

The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.

But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.

Franck’s historical account is comprehensive, but it has to be filtered also through his sense of what these concepts plausibly could mean. Taking the terms in their plainest meaning, the distinction seems to come in this way:

A procedural right is one that requires the government to enforce its policies—it matters not what they are—in such a way and by such processes that we are treated fairly under the rules laid down.

A “substantive right,” says Franck,

is a right against the imposition of certain kinds of policies on us under any circumstances—in this instance it mattering a great deal what the policies are, therefore, and there being no “right way,” no rules laid down, that can render the policy itself legitimate.

And yet, Franck senses that the distinction is too gross. He resists the current cliché that “‘substantive due process’ is a self-contradiction and that ‘procedural due process’ ” is the only plausible meaning for “due process of law.” For at some point, as he recognizes, one could plausibly speak of a “substantive right” to be governed fairly, by procedures that reflect the canons of lawfulness.

He then draws upon those very canons for the sake of showing where the distinction could be drawn more aptly. But in sharpening the distinction, he would seek to show just how a critique of “substantive due process” can be preserved, quite tenably, in our own day. Critics of “substantive due process” have not been willing to credit, as a “law,” just anything passed in formally correct way. “For the essence of a law,” writes Franck,

is that it differs from a decree in two ways: in being impersonal, general, or neutral in character, and in being known (or knowable) before we are affected by it, and before we can take those actions that it governs.

But with this proviso in place, the heart of the matter remains the objection (to Franck, a legitimate one) to “the judicial assessment of the rational grounds of public policy and of the permissible uses of the police power when employed in general, prospective legislation.”

Looking back through this lens, Franck calls into question the claim that judges, earlier in our history, were persistently striking down laws because they found something wanting in the substance of the policies that were enacted. In most cases, as Franck reads them, the judgments pivoted on the parts of these statutes that violated these long-recognized, formal tests of lawfulness—for example, that a law should apply prospectively, not retrospectively, and that it be cast in general terms and not declare punishments or penalties for particular persons.

Within this historic sweep, Chief Justice Roger B. Taney in the Dred Scott case could be seen as an outlier. Slaveholders, says Franck, had ample warning that the laws barred slavery from the territories. In his view that should have been quite enough to take the matter out of the hands of judges. Taney had to reach beyond those laws and engage in the gratuitous move of denying the premise, long respected in English and American law, that slavery is at odds with natural right, and thus can be sustained only by positive law.

It seems then, for Franck, that Justice Samuel Freeman Miller got it roughly but essentially right in the famous Slaughter-House Cases of 1873. Franck construes Miller’s reading of “due process” in this way:

By its terms, the clause has nothing to say about the validity of any legislative acts of general application, prospectively prohibiting or regulating any species of conduct so long as there is no outright forfeiture or taking of life, physical liberty or tangible property, and so long as any restraints on conduct imposed by the law are administered with due notice . . . and a procedurally fair opportunity to vindicate oneself.

But if we pause here, there are two things that ought to be noticed on the very surface of these readings offered by Franck. First, most of these critical, defining criteria of law—such as that a law be impersonal and of general application—are not contained in the text of the Constitution. They are entailed by the very “logic of morals.”

If we say that it is wrong, for example, to hold human beings as slaves, the logic of a moral proposition is that the wrong is universal, that it applies to everyone. By this logic it would be wrong for any person to hold any other as a slave, and it might be said from another angle, that any person has a “right not to suffer that wrong.” These features are indeed part of the logic of the law, if indeed we understand that the logic of law is bound up in the first place—as in Aristotle—with the logic of “right” and “wrong.”

Second, Franck does accept that a jurisprudence avoiding “substantive due process” will take it as a stern requirement that the judges will not inquire into the validity of a law “so long as there is no outright forfeiture or taking of life, physical liberty or tangible property.” The judges would bar themselves from considering “the rational grounds of public policy and of the permissible uses of the police power when employed in general, prospective legislation.”

By its very terms, this jurisprudence seems to be barred from piercing beneath the surface to inquire into the way in which the very labels of “life,” “liberty” and “property” may be withdrawn from a wide variety of things. To take the most notable example, would this jurisprudence be the source of no serious questions posed by judges when a whole class of human beings—say, infants in the womb—are simply read out of the circle of “human persons” so that no one of them counts as a “life” that the law protects? Or would a judge be warranted in pressing to hear the substantive reasons—for example, to hear why that offspring in the womb could be regarded as less than human at any stage?

For Franck, the turn in our jurisprudence came with a new and subversive “reading” of the Due Process Clause, taking hold in the late 19th century:

By the end of the nineteenth century, a new dispensation held sway, in which the justices asked, in effect, “What is the liberty of action deserving protection from the legislative power?” It was as though the words “due process of law” had vanished from the constitutional text, the clause now being read to say that no one shall be deprived of life, liberty, or property except by a reasonable act of legislation—with the justices being the arbiters of what is reasonable.

Life, liberty, property: the axial order. One needed life before one could exercise liberty, and one needed liberty before one could acquire property. The question, at every turn, though, is whether our lives are taken, our liberty restricted, our property drawn from us, with or without justification.

The fire department blocks me from walking down the street to my apartment building because it is fighting a fire. My liberty is being impeded, but I have suffered no violation of my rights, for my freedom was evidently restricted here for the purpose of protecting life, including my own. The restriction, we would say, is patently “justified.”

There is nothing esoteric here; these are judgments that ordinary folk have to make every day. And for judges the exercise is inescapable. To ask whether a law is justified is to test it with the canons of reason. And that is but another way of asking whether it is “reasonable.” What is it then that has, for Franck, the touch of the illicit or “suspect” about it?

In that vein, we might consider as a notable test, the strands of reason that made up Justice Rufus Peckham’s argument in the long-derided case of Lochner v. New York (1905). Franck joins the tradition of stamping that case as one of the premier examples of the corruption of our constitutional law with the vice of “substantive due process.” In judging that legislation in New York, on the maximum allowable working hours for bakers, Peckham raised this question: If the concern of the law is with “safety,” then why did it leave out all of those people who baked in restaurants and private clubs? Why did it leave out the people employed in small bakeries staffed by members of the owners’ families?

With these kinds of arguments Peckham was testing the rationale of the legislation on its own terms. What, in any of these arguments, could be dismissed as subjective or arbitrary, or reducible merely to the prejudices of the judge? In fact, why were these kinds of reasons not cut from precisely the same cloth as the kinds of arguments that are conventionally used to test simply the fairness of the “process” under “procedural due process”?

Peckham tested the justification for the law by standards that were patently apt and, well . . . reasonable. But even closer to the point, it is worth appreciating that Peckham’s judgment here could not be reduced to the defense of people in the business of running bakeries. It could not be linked to the particular “substance” of protecting “bakers.” Peckham’s opinion clearly flowed from that expansive understanding of personal freedom that he had expressed in Allgeyer v. Louisiana (1897):

The liberty mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways;  to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential . . . [Emphasis added.] [2]

The mistake that comes into play in understanding Peckham in Lochner is, I think, the one that confuses the matter of “substantive due process,” and it was illustrated again quite recently by one of our leading conservative jurists. In the Rosenkranz debate two years ago at the Federalist Society, Judge J. Harvie Wilkinson expressed the traditional view, settled over many years, that the aforementioned Slaughter-House Cases had been decided in the right way.[3] The core of Judge Wilkinson’s judgment was that it was utterly implausible to think that the Constitution and the Fourteenth Amendment established a “constitutional right to be a butcher.”

But once again, it takes a serious philosophic mistake to reduce, in that way, the meaning of Justice Stephen Field’s summoning dissent in Slaughter-House. What Field understood he was vindicating was the right of ordinary people to make their livings at a legitimate calling or occupation without the kinds of arbitrary regulations that barred entrance into the trade. What was engaged here was the simple “right to pursue employment in a lawful manner, without other restraint than such as equally affects all persons.” And his concern about a monopoly conferred by law—the only tenable meaning of “monopoly”—was that it was wrong to confine this mode of earning a living to a favored few with political connections. What was said in this respect about butchers could be said as aptly in our own day about people in our cities seeking to make a living by shining shoes, braiding hair, or driving “gypsy cabs” to take people from the subways to their homes.

As Field argued, “It would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals.” It cannot be a fair translation of Field’s words here, or of the right he was seeking to vindicate, to say, as Franck does, that the right being advanced here was “that of butchering where one will, it seemed.” That rendition seems to me quite as off the mark as Wilkinson’s claim that the case sought to establish a “constitutional right to be a butcher.”

Thus do the critics of “substantive due process” confound the substance of what was protected with the grounds on which the protection was accomplished and the law struck down. The mistake is not one of perception. I would suggest that it reflects a serious philosophic mistake that has had a remarkable endurance, not only among judges, but among some of the leading scholars of the law.

It is seen in the question posed years ago by the late Philip Kurland when he asked: How did the Supreme Court make its way from racial segregation in public schools, in Brown v. Board of Education (1954), to segregation in swimming pools? Didn’t Brown hinge, he asked, on the claim that children suffered some notable harm to their motivation and learning in schools as a result of segregation?

The wrong of that case was cast entirely in “contingent” terms: not that there was something wrong in principle with racial segregation, but that the wrong was contingent upon harms suffered by children in schools. Was the contention now that barring children from swimming pools would impair their capacity to learn? Was there now a “constitutional right to swim”?

Or did we have, rather, simply another instance of “racial discrimination”?

We are dealing with a basic logical or philosophic mistake: Kurland was confusing the “principle” with a particular instance in which the principle may be manifested. One may think here of the problem of the ball rolling down the inclined plane. The principle at work is that the angle of the plane controls or determines the speed by which the ball rolls down the plane. The steeper the angle, the faster the ball will roll. Once we are clear on the principle, it doesn’t matter whether we are dealing with wooden planes or plastic balls, or blue planes and red balls.

In the same way, once we are clear on the principle that establishes the wrong of racial discrimination—the wrong of drawing adverse inferences about people and their worth on the basis of race, as though race determines their moral conduct—once we are clear on that principle, that principle can be manifested in a numberless variety of instances. We may find racial discrimination in barring access to public tennis courts, or to the photocopy machine in the courthouse; and yet there would be no need to start adding to a vast inventory of rights the “constitutional right to play tennis” or the “right to Xerox.”

Once this point is clear, we may wonder just how much of the vexing matter of “substantive due process” may be explained—and explained away, possibly losing that vexatious edge. A case may involve marriage or schools, or bakers or butchers, or people in the ice business (New State Ice Co. v. Liebmann, 1932). Or it may involve Leo Nebbia trying to sell milk past the price controls in New York (Nebbia v. New York, 1934). But the rights being vindicated in these cases, and the arbitrary restrictions being set aside, cannot be reduced to the matter of selling bread or ice or milk. The cases hinged, or should have hinged, on the question of just what principle would tell us just how many people should be barred from competing in the business of selling ice. Or what the “right” price should be for milk and bread, a price so just and true that it may be imposed with the force of law.

As we probe in this way, it turns out that we are relying on the same canons of reason, the same “principles,” in testing the adequacy or, on the other hand, the arbitrariness or emptiness, of the justifications that are offered for laws. And those judgments can be quite detached from the distinct, substantive things that people are doing with their freedom in these cases.

That indeed may be the key to Franck’s effort to preserve the opposition to “substantive due process.” As he recognized right away, the gross distinction between “procedural” and “substantive” due process was not really tenable. The refinement came in drawing on tests of “lawfulness” (for example, a statute prospectively applied, general in its coverage). And those are “formal” tests. They are rather like the Categorical Imperative or the rule that says: Do not lay down for others a law that you are not willing to see applied to yourself.

Those rules are immensely useful in casting up warnings and diverting legislators from mischief. And they can be applied without casting any judgments on the substance of the policy. That is their appeal. But that is exactly also the moral pitfall. The Categorical Imperative has been notably misused in the past by people altogether too willing to make a perverse policy universal.

But relying on “formal” tests may have this advantage for Franck: It allows him to hold to the view that judges can test severely the “lawfulness” of any statute, even as they scrupulously avoid judging the substance of what a legislature is enacting.

And yet, we may ask: What satisfaction could such a state of affairs bring us, in the end? How could we find as the cardinal virtue in the “rule of law” that a judge should be officially indifferent to the substance of what is done, so long as it is done with all of the trappings of law, satisfying the formal tests of lawfulness? Justin Buckley Dyer’s recent book on slavery and abortion put that question to us in the sharpest way.[4] Those famous decisions in Dred Scott and Roe v. Wade have been derided by conservatives for the sin of “substantive due process.” But as Dyer has shown, those cases could not have been decided coherently if judges were barred from raising the most searching questions about the substance of what was done.

In Roe v. Wade, as Dyer points out, the Attorney General of Texas drew precisely on the textbooks in embryology to confirm what was taken as a settled fact in the leading Handbook on Torts: namely, that “the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law.” The law that cast protections over the human life in the womb was wholly warranted then in putting a heavier burden of justification on those who would simply shift labels—call a small human a “fetus”—and in that way remove a whole class of human “lives” from the protections of the law.

Matthew Franck has quite persuaded me that, in the jurisprudence that rejects “substantive due process,” such an inquiry, testing the very substance of the law, must be forgone. But whatever else such a jurisprudence would be, could it ever claim moral coherence as a “rule of law” and a “system of justice”? Or have we simply revealed ourselves in the end to be the children of Holmes—that we, too, would fall back upon a jurisprudence that holds, as its deepest hope, that “every word of moral significance could be banished from the law altogether.”

[1] Matthew J. Franck, “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process,’” American Political Thought 4 (Winter 2015), 120-48.

[2] 165 U.S. 578, at 589.

[3] See 83 U.S. (16 Wallace) 36 (1873).

[4] Justin Buckley Dyer, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013).

Reader Discussion

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on October 26, 2015 at 09:26:58 am

It's certainly a difficult mission to draw the precise line between believable due process and bogus due process. Anyone who tries has my sympathies.

Contra Professor Arkes, I very much doubt that Justice Samuel Miller succeeded in that regard. If the constitutional clause authorizes judges to stop any "outright forfeiture or taking of life, physical liberty" by a governmental official, then surely the judges are as omnipotent as they behave today. And surely it would be within their ambit to decide that even harming another person (even killing a child) requires some element of "physical liberty".

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on October 26, 2015 at 11:32:42 am


Perhaps, I misread this but i thought that Professor Arkes was not endorsing Miller (or Franck's) position; rather, he was using both Miller's comment and Franck's analysis of that comment to illustrate the ultimate shortcomings of Miller's approach.

If I read him right, without a recourse to the fundamental "logic" of right and wrong, Judges could, as you say, have sufficiently broad discretion to "kill a child" in defense of some odd sense (right?) of physical liberty. The re-definition from "infant" in the womb to "fetus" is permissible because there is no consideration of the "logic of right and wrong." Thus following Miller's formulation it is still possible to uphold a law that permits the killing of a child because a) by definition, it is no longer a child and b) because one has failed to recognize / accept the initial "logic" of right and wrong. There is no longer any underlying first principle.

In Arkes sense, then, substantive due process is substantive only to the extent that we continue to recognize first principles and THEN apply them in the manner that Miller has suggested. In short Miller fails because he allows (unknowingly, perhaps) for the Judiciary to be the determiner of right and wrong without also requiring that the Judiciary be steeped in those first principles.

And thus, I suppose, a defense of natural rights is at root, if unstated in Arkes essay.

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on October 26, 2015 at 17:41:27 pm

I want to thank Gabe, for the most part here, for Andrew did quite misread me on that point. I was citing Matt Franck's extended passage from Miller in the Slaughter-House cases, as a reflection of the understanding that would emphatically rule out "substantive due process." That passage did convey the sense of a jurisprudence in which judges would not raise probing questions to the test the justifications for the measures enacted by legislatures. Hence the refusal to inquire whether the monopoly at issue in the Slaughter-Houses cases could really be justified by any concerns for "safety." Stephen Filed nicely demolished that claim in his magisterial dissenting opinion. It should have been quite clear from the essay that I was decisively on the side of Stephen Field.

When it comes to abortion, we'd presume that Miller would not have the Court raising any demanding questions, testing the justification for the laws on abortion--regardless of whether those laws largely barred abortions or made abortions compulsory! As Justin Dyer showed us in his book, it would have made the most profound difference if the Court, in Roe v. Wade, had sustained the laws on abortion because the Court could take account--and credit--both the evidence on embryology and the moral reasoning that formed those laws. That is quite different from a scheme of jurisprudence in which the judges hold back because they affect to have no access to truths, or to canons of reason, that would permit them to judge the justification for policies enacted into law.

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Hadley Arkes
on October 27, 2015 at 07:07:07 am


i can't help but see your argument about Miller's acquiescence before the legislative act, whatever its substance, as the forerunner to Lino Graglia's redoubt on the substance. Of course this raises a question I would love to see explicated in terms of how, if in any substantive way (sorry), Lino would see any space for the testing of laws against a moral code. He certainly doesn't see the subtextual commands -- or maybe even the textual ones -- of the Constitution as meant to be enforced through judicial review. I have always found him a fascinating character -- in the same loving way i have folllowed your career, committed to his principles in spite of their not being particularly popular at the campus cocktail parties.

And while his more controversial pronouncements are akin in so sensitive area of race to Larry Summers frank discussion of the vocational acheivement of women I am far more interested in his virtual eschewing of judicial review. But going back to the substance to which his principles have been sometimes applied I have thought that seems a degree of natural law at work in the distinguishment (and separation) of races and cultures. And so it strikes me as one of the greatest challenges for natural law to confront the implication of instinctive comfort in consort with ones own. I don't mean to be simplistic about this but at least start from that simplistic realiation. Of course there is a great deal of individiated (sp? or i made that up) behavior contra such an assumption but it seems pretty clear that Loving isn't so far from Obergefell. Today's task will be to read those with the filter you suggest of the court grounding its bar on legislation in moral reasoning.

Didn't mean to hijack the thread so i tried to bring it back in the end.


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Image of brian
on October 27, 2015 at 15:29:30 pm

[…] judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law […]

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Negotiate or litigate? |
on November 16, 2015 at 18:35:27 pm

Many thanks to Professor Arkes for the extended comment.

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Image of Andrew
on November 18, 2015 at 09:33:00 am

Due Process applies to persons. Persons exist in relationship as sons, daughters, brothers, sisters, husbands, wives, fathers, mothers.
Slavery, abortion, and identifying persons according to sexual desire/inclination/orientation, deny the essence of personhood, by objectifying the human person.
What separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. The marital act is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife.
We can know through both Faith and reason, that speciation occurs at conception, thus a human person can only conceive a human person, every son and daughter of a human person can only be in essence, a human person, and marriage cannot be and not be existing in relationship as husband and wife, simultaneously.
Our Founding Fathers recognized that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness Has been endowed to us from God, not King John, or Locke, the purpose of which can only be, what God intended.
Thanks for all you do on behalf of persons everywhere!

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Nancy D.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.