Evan Bernick and Timothy Sandefur have reacted about as I would expect to my criticism the other day of George Will’s latest column in favor of judicial overreaching in the name of “substantive due process.” A few words of reply may be in order, though my last Memo here had links enough to supply all the arguments really necessary.
1. Taking Sandefur first, I should say right off that I have not digested all of his writings, as he apparently thinks I claim to have done. That’s all right. I’m quite sure he has not read all of mine, and I think that what he has read he has not entirely understood, from the evidence of his discussion of it. But in my last post, I remarked only that “the jurisprudence he advocates is not dependent on the language or history of any particular constitution.” I said this with a link to a post from nearly two years ago in which he told Orin Kerr that Kerr had understood him correctly when he (Kerr) wrote that Sandefur’s “view of the Constitution . . . [is] actually not about the U.S. Constitution in particular. Instead, it’s a theory of all governments throughout human history.” The question that naturally occurs to one encountering such a view as Sandefur’s is, what work is the text of the Constitution doing? Let us say there were no due process clause in the Constitution that applied to the states. (There was none until 1868, after all.) Would anything change about Sandefur’s account of the power of federal judges to gainsay state legislative enactments? Are those of us who strongly suspect the answer is “no” mistaken? If so, why?
These are not idle questions. Sandefur makes much of a case I have never discussed in any of my work on the meaning of due process:
Note that Franck does not mention Cummings v. Missouri, another prototypical “substantive due process” case that never mentions the Due Process of Law Clause (common among pre-New Deal “substantive due process” cases).
There is a very good reason I do not mention Cummings. From beginning to end the case is about the prohibitions in Article I, section 10 of state-level bills of attainder and ex post facto laws. Even with Justice Stephen Field (perhaps the most outlandish judicial activist of his day) writing the opinion, the case has nothing whatever to do with the due process clause. And in the nature of things it was quite impossible for it to have anything to do with the due process clause, for Cummings was decided in January 1867, eighteen months before the Fourteenth Amendment became operative and brought the new due process clause to bear on the states.
2. In general, Sandefur reasons that the unjust is the irrational, the irrational is the arbitrary, and the arbitrary is forbidden by the principle of due process. This is a string of equivocations, and begins with unsubstantiated opinion. The fact that Sandefur and I might even agree that a legislative enactment is unjust does not make it so, and it certainly does not follow that it is arbitrary under the fairly concrete meaning of due process, which requires regularity, generality, prospectivity, notice, and the like—all of which are present in the laws Sandefur lately condemns, but absent in his own favorite examples such as in Shirley Jackson’s The Lottery. The trouble with practitioners of substantive due process is that they do not so much employ logic as collapse it.
3. Evan Bernick has similar troubles with history. His references to Marshall, Hamilton, and Madison can be left to one side as irrelevant at present, as I’m content to note that none of them can be found embracing the doctrine we now call substantive due process, which makes no appearance in American law prior to Dred Scott. But here is Bernick on that case:
It is telling that Abraham Lincoln and other critics of Dred Scott v. Sanford (1857), which Franck identifies as the first appearance of “substantive due process” in the Supreme Court’s jurisprudence, did not criticize the Court for invoking a novel doctrine in holding that Congress lacked the power to ban slavery in federal territories.
Not exactly so. Here is Lincoln in 1858, writing preparatory notes for his debates with Stephen Douglas:
The Constitution itself impliedly admits that a person may be deprived of property by “due process of law,” and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he will still bring him, he will be deprived of his property in such slave by “due process of law.”
This is a succinct statement of the traditional doctrine of the due process clause that I elaborate in my article from last winter. There is no comparable statement of Lincoln’s ever saying anything like “Taney has the right doctrine of the due process clause but has wrongly applied it here”—which is exactly what Bernick says is the case. In his great 1857 speech on Dred Scott, Lincoln said: “Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.” And what had those dissenting justices said? Here is Curtis:
[I]f the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding State which have enacted the same prohibition? . . . I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorportated into State Constitutions. It was certainly understood by the Convention which framed the Constitution, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slaves; and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation respecting a Territory violate the fifth amendment of the Constitution?
I would be willing to consider an affirmative showing that Curtis and Lincoln, prior to Dred Scott, were familiar with and embraced the idea that the due process principle could be brought to bear against legislation that was regular, general, prospective, governing conduct and not static relations of persons and their property; that they saw it as capable nonetheless of condemning such laws on grounds of a more general principle of justice lurking in the phrase “due process of law”; and that their opposition to Dred Scott was really limited to a complaint that this principle had not been rightly applied in that case. My quotations just above do not rule out this possibility. But consideration of this possibility requires affirmative evidence that they ever thought this. So far no one, including Bernick and Sandefur, has ever produced it. Instead what we have is a sharp reaction on the part of Lincoln and Curtis to an altogether novel doctrine of due process that neither of them seemed ever to have seen before. This is not a promising pedigree for what our latter-day defenders of the doctrine want to do with it.