Few doctrines have a worse reputation among conservatives than "substantive due process" -- the idea that the Constitution's guarantee of "due process of law" imposes inherent limits on the exercise of government power. It is therefore unsurprising that a recent column by conservative columnist George Will in which Will praised the doctrine and called for it to be enforced in the Institute for Justice's suit against Pagedale, Missouri ruffled some feathers. Will, drawing upon the scholarship of libertarian lawyer Timothy Sandefur, argued that Pagedale's pernicious practice of imposing fees on residents for innumerable harmless activities, including walking on the left side of a crosswalk, opening a beer within 150 feet of a grill, wearing pants that sag below the waist, or having a basketball hoop in their front yards, deprive residents of their liberty and property without due process of law. Matthew Franck has responded harshly, arguing that "substantive due process" is "atextual" and "ahistorical" nonsense with which no originalist should have anything to do. He also argues that those who support it cannot claim the authority of Marshall, Hamilton, or Madison.
Franck is wrong on all counts. So-called substantive due process is firmly grounded in constitutional text; rooted in ideas about the function and limits of government that were accepted by the Founding generation, and critical to ensuring that the courts perform their appointed function as "bulwarks of liberty." It is Franck who breaks with Marshall, Hamilton, and Madison. Sandefur has already effectively demolished Franck's arguments; I come to spread salt on the ground, lest he (or others) seek to build upon it again.
Let's begin with several points of agreement. Franck and I agree that the term "due process of law" (which can be found in both the Fifth and Fourteenth Amendments) has an objective, ascertainable meaning, and that discovering that meaning requires tracing the origins of the term. The term can be traced backed to Magna Carta's "law of the land" provision, which, as Franck explains in this article, was interpreted by members of the Founding generation as a guarantee of a particular kind of rule -- rule by law, rather than arbitrary rule. Franck and I even agree about the essential vice of arbitrary rule -- that it enables those in power "to exert mere force... with no other authority for it than that the raw power exists to do it."
But from there, we diverge. Franck understands the distinction between the law and arbitrary rule to consist only in the distinction between a law and a decree. A law is "impersonal, general, or neutral in character, and... known (or knowable) before we are affected by it, and before we can take those actions that it governs"; a decree is a "punitive, particularistic and/or retrospective deprivation of property or liberty." According to Franck, judges are not to inquire into the "rationality" or the "justice" of legislation -- that has nothing to do with whether legislation is law.
Franck's limited conception of law fails to capture the essential vice that he attributes to arbitrary rule. A piece of legislation that is irrational and unjust is no less a product of "mere force," exerted "with no other authority for it than that the raw power exists to do it" than any decree by a monarch. This is not simply my opinion -- it is consistent with an understanding of law that can be traced through many 18th-century judicial opinions and is expressed most clearly in Calder v. Bull (1789), a case in which the Supreme Court held that a statute violated the Constitution's prohibition of ex post facto legislation. Justice Samuel Chase opined that the statute would be unconstitutional even if the Constitution did not specifically bar ex post facto legislation: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority."
Franck selectively quotes from Chase's opinion without grasping the overarching principle that informs it. He notes that one of Justice Chase's examples of legislative abuses is "a law that takes property from A and gives it to B" -- an example which Franck categorizes as a decree. But on Franck's account, legislatures are free to "authorize manifest injustice by positive law," so long as they authorize manifest injustice on a broad enough scale and in clear enough terms. Justice Chase's conception of law was evidently more robust than is Franck's. In truth, Franck's conception of law is closer to that of Justice James Iredell, who in an equally famous opinion in Calder wrote that "[i]f... a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted." But as Professor Frederick Mark Gedicks has shown, Justice Iredell's view was an outlier.
Franck cannot appeal to Madison, Hamilton, or Marshall for help. Madison, after all, argued that it was the purpose of government to "establish justice" by "protect[ing] all parties, the weaker as well as the more powerful," and stated that majority rule could do only what "could rightfully be done by the unanimous concurrence of its members." Hamilton's essay on the judiciary in Federalist 78 contemplates that federal courts will defend individual rights beyond those few enumerated in the text of the Constitution -- he states that "it is not with a view to infractions of the constitutions only that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society" but that an independent judiciary will also safeguard "the private rights of particular classes of Citizens" against "injury" from "unjust and impartial laws." Chief Justice Marshall had recourse to unwritten limits on government power in a number of key opinions. In Marbury v. Madison (1803), he famously stated that "where there is a legal right, there is also a legal remedy." This principle can be found nowhere in the Constitution -- Marshall extracted it from "the very essence of civil liberty," stating that providing such remedies is "[o]ne of the first duties of government." As Professor David Currie has observed, Marshall's opinion in Fletcher v. Peck (1810) is "bristles with references suggesting unwritten limitations derived from natural law."
In short, there is wealth of evidence that the Constitution's references to due process of law are informed by a conception of law holding that government is inherently limited and that it cannot violate preexisting individual rights, even if those rights are not listed in the Constitution's text. 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. These critics accepted what was taken to be an elementary truth -- namely, that deprivations of property that are not authorized by any legitimate government power violate the due process of law guarantee -- but claimed that the Court was wrong about the limits of federal power, as well as about whether blacks were included in the Declaration's promise of "life, liberty, and the pursuit of happiness." As Sandefur has observed, it makes about as much sense to criticize Dred Scott because it is a "substantive due process decision" as to criticize Plessy v. Ferguson (1896), which upheld separate-but-equal public facilities, because it was an "equal protection decision." The doctrine is sound -- the problem lies in the way that the Court applied it.
Ultimately, Franck, much like the Progressive jurists and commentators who leveled the first sustained criticism against substantive due process in the late 19th and early 20th centuries, and conservative icon Judge Robert Bork, who later adopted their criticism (without doing much, if anything, to inquire into the relevant history) is in the grips of the myth of majoritarianism. Franck believes -- and he incorrectly believes that the Framers believed -- that majorities are entitled to rule simply because they are majorities, except when they are forbidden from doing so by greater majorities, namely, those who ratified the Constitution and, later, those who amended it. At all points, raw power carries the day.
Franck's vision is not only alien to the political philosophy of the Framers and contrary to constitutional limits on government power that implement that political philosophy -- it is morally appalling. It would permit democratic majorities to criminalize consensual sex; ban contraceptive use; sterilize the "promiscuous" and "enfeebled"; and, of course, fine people for having open beers within 150 feet of barbecue grills, as Pagedale does. You name it. Any number of peaceful activities that are not listed in bullet-point form in the Constitution's text could be proscribed. No reason need be given, other than that those in power desire it to be so.
Franck might respond that what is morally appalling to me (if not to him) is not relevant to constitutional interpretation. The Constitution means what it means, regardless of how I feel about it or he feels about it or anyone wearing a robe feels about it. But government is a normative institution that necessarily claims moral authority, in virtue of its monopoly on legitimate force and its use of force to compel obedience. It not only has the power to forcibly compel obedience; it claims the right to compel obedience. As James Wilson, perhaps the leading political theorist among the Framers, recognized, whether that claim of right is legitimate turns on whether the government is performing its core function, namely, safeguarding "natural rights" to life, liberty, and property that precede government: "[E]very government, which has not this in view, as its principal object, is not a government of any kind." If the Constitution allowed government to operate by "mere force" rather than reason and justice, to restrict liberty or take property without serving any genuinely public end, we would have to ask ourselves hard questions about its legitimacy. Thankfully, as Thomas Jefferson famously put it, "an elective despotism is not the government we fought for" -- and it is not the one we have.
The plaintiffs in Whitner v. Pagedale ask the court to declare that Pagedale may not impoverish its residents by ticketing and convicting them, not to protect anyone's life, liberty, or property, but to fill government coffers. Fortunately, the Constitution is on their side.
-IJ attorney Joshua House, who is litigating Whitner v. Pagedale, provided helpful comments on this article