Author: Timothy Sandefur
Since the Progressive Era (roughly the 1920s), it’s been fashionable for law professors and judges to attack the legal principle called “substantive due process.” This theory is said to be at the root of all sorts of problems in our national history, everything from slavery to abortion. It may be the only thing conservatives and liberals agree on about our Constitution. And, as that fact might suggest to you, it’s completely wrong.
Substantive due process was only called that beginning in the 1940s. Before then, it was simply known as due process. The theory is quite simple, really. It just means that when the legislature acts in an arbitrary or unauthorized way, what it does cannot qualify as “law.” In other words, not everything that a legislature does is law, just because a majority got together and voted for it. That means that mere formal approval does not make something a law.
Consider for example if the Congress were to pass a bill, and the president to sign it, that established, say, Scientology as the official religion of the United States and required all persons to join that church. It would obviously violate the First Amendment, that says Congress “shall make no law” of that sort. And since the Constitution also says that only laws “which shall be made in Pursuance” of the Constitution “shall be the supreme Law of the Land.” Thus whatever that Scientology bill might be called, it can’t be called a law.
So if the sheriff shows up and arrests you for not attending services, you have been deprived of liberty without due process of law.
The same is true if the legislature acts in an arbitrary fashion: if it simply passes a law to deprive some disfavored individual of his property and give it to someone else, merely because it wants to. That can’t qualify as a law, because law means something general, a regular rule of conduct, that advances the public welfare—not merely an act by the lawmaker for his own self-interest. That’s the difference between law and arbitrariness. In his argument in the 1819 Dartmouth College case, Daniel Webster quoted Blackstone to explain that “due process of law” means
“…a rule; not a transient sudden orde…to or concerning a particular person; but something permanent, uniform and universal. Therefore, a particular act of the legislature, to confiscate the goods of [one person], or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon [that person] only, and has no relation to the community in general; it is rather a sentence than a law….” The meaning [of due process of law] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony.
Decades later, the Supreme Court quoted this passage to explain that the “due process of law” clause forbids
special, partial, and arbitrary exertions of power under the forms of legislation. Abritrary power…is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments…are essential to the preservation of public and private rights…[and are] the device of self-governing communities to protect the rights of individuals and minorities…against the power of numbers…[or] the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.
So although the words “substantive due process” do not appear in the Constitution, this concept is as valid and as crucial to constitutional law as the concept of “separation of powers” or “separation of church and state” (also phrases that don’t appear in the Constitution, but are crucial to it). The due process clause forbids the government from acting arbitrarily, even if its arbitrary actions appear in the form of law.
As we explain in our U.S. Supreme Court brief, this notion of substantive due process was well understood and generally accepted at the time that the Fourteenth Amendment was written. Reviving the Privileges or Immunities Clause would therefore not justify abandoning the protections of the due process clause.