Knowledge And Decisions

The Constitution of the United States twice declares that a person shall not be “deprived of life, liberty, or property, without due process of law” — either by the federal government (Fifth Amendment) or by state governments (Fourteenth Amendment). According to Alexander Hamilton, “the words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.”³⁶⁸ At the very least, the two fateful words already had a long history in Anglo-Saxon law as of the time they were first placed in the American Bill of Rights in 1791.³⁶⁹ An even longer history of arbitrary power — of lands and even lives confiscated by royal or imperial decrees, and of heads cut off by peremptory order — lend momentous importance to the requirement that only prearranged legal procedures may deal with the fundamental rights of individuals. Centuries of struggle and bloodshed lay behind those two words.

The first historic attempt to make “due process” mean something more than adherence to legal procedures occurred in the Dred Scott case in 1857. The Supreme Court declared that “an Act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”³⁷⁰ Here the issue was not whether regularized procedures had been followed in the passage or administration of the law, but whether the substance of the legislation was valid. In many other very different issues, the battle would be joined again and again over the next century as to whether “procedural due process” was enough to satisfy the constitutional requirement, or whether the Supreme Court should also consider “substantive due process” — i.e., pass judgment on the validity of the substance of duly passed laws and duly established judicial proceedings.

The first historic judicial activist interpretation of “due process” as calling for Supreme Court approval of the substance of duly enacted legislation declared that property — a slave named Dred Scott — would be taken without due process of law if the slave were freed simply because he had been transported into a territory where Congress had outlawed slavery under the Missouri Compromise. Therefore it was ruled that it would be unconstitutional to set him free. The easy assumption that judicial activism is on the side that twentieth-century liberals regard as moral or socially forward-looking does not square with the history of the due process clause.

There was an historically brief respite from the “substantive due process” interpretation after the Supreme Court in 1873 refused to consider the substantive merits of a state-created slaughterhouse monopoly in Louisiana, on grounds that to rule on the substantive merits “would constitute this court a perpetual censor upon all legislation of the states.”³⁷¹ It continued to resist the efforts of those unsuccessful elsewhere to use the Supreme Court to review the substantive justice of lower court decisions or “the merits of the legislation on which such a decision may be founded.”³⁷² However, less than two decades later, a new Supreme Court declared in 1887 that it would look beyond “mere pretenses” to “the substance of things.”³⁷³ By the turn of the century, the era of “substantive due process” was launched — in which the Supreme Court repeatedly invalidated as unconstitutional laws regulating businesses or working conditions. The “substantive due process” era lasted longer than the Warren Court era. It was, of course, lamented in retrospect by those who supported the Warren Court’s activism.