Bench Memos

Addendum

I shall limit myself to one response to Matthew Franck’s lengthy rejoinder to my post earlier today:

In criticizing my understanding of “substantive due process,” Franck claims that the only thing remotely “substantive” about the due process clause is that it requires government

to rule by law and not by decree. The latter would be the “unbridled will” of those with power, for it would mean the government takes life or liberty or property lawlessly—without promulgating a statute of general application duly notifying us of the rules to which we must conform, and instead simply picking persons or classes of persons to suffer penalties because of who they are, not what they have done under a law. Daniel Webster put it this way in an argument to the Supreme Court:

The meaning [of due process] 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.

If this was substantive due process,” it was a “substantive” guarantee only that legislatures would pass laws that honored the procedural requirements of due process. What Pilon prefers is something that made its first Supreme Court appearance in the Dred Scott case—the assertion that due process limits the range of policy choices a legislature can make, even if it satisfies all of Webster’s requirements of a law of general application, fairly enforced.

Set aside the Dred Scott matter—we know what’s going on there—Franck misreads Webster. If Webster meant to include under “the general rules which govern society” only those legislative enactments “that honored the procedural requirements of due process [notice, a hearing, etc.],” then how could he have included a prohibition against “directly transferring one man’s estate to another” (which is what government is mostly about today!).

Perhaps “directly” saves Franck, but my point should be clear: Such a prohibition is substantive, not procedural. Webster is saying—in fact he does say—that “Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.” Were it otherwise, were “law” not substantive, then it would be no different from or better than “decree.” That it flows in a democracy from the will of the majority rather than the will of the king makes it no less decree. As we learn at least from Plato’s Euthyphro, will alone is no basis for right—or for “law” as it is used in the due process clause, read in its historical context. In my piece in the Wall Street Journal that began this exchange I noted that the tragedy of so much contemporary conservative constitutionalism is that it has taken on the mantle of legal positivism, abandoning its and the nation’s roots in the theory of natural rights, which alone gives the Constitution its legitimacy. It’s time for judges, along with the rest of us, to rediscover those roots.

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