Balkinization  

Thursday, August 11, 2005

Early Substantive Due Process

Mark Graber

Some support and some modifications of Jack's post on substantive due process before the Civil War. I believe it is becoming the consensus view of legal historians that due process (or the equivalent "law of the land" provision) had a substantive component. Significantly, this view is shared by scholars on the left (Howard Gillman, see his wonderful The Constitution Besieged), on the right (James Ely's work on property), and those whose constitutional politics are unknown to me (i.e., Charles McCurdy). As Alfred Hill wrote, "Taney’s . . . unsupported assertions in . . . Dred Scott of a substantive scope for the due process clause are less plausibly explained by an assumption of uncharacteristic slovenliness on so important an issue, than by his probable awareness that, on the state level, such a scope for the clause . . . in protection of ‘vested rights’ had long been taken for granted."
The antebellum Republican party championed substantive due process. The antislavery Fifth Amendment, in their view, forbade federal laws permitting human bondage in the territories. "[T]he [due process] clause," Salmon Chase and other prominent abolitionists asserted, "prohibits the General Government from sanctioning slaveholding, and renders the continuance of slavery, as a legal relation, in any place of exclusive national jurisdiction, impossible." The Republican Party Platforms of 1856 and 1860 declared that federal laws establishing slavery in the territories deprived enslaved blacks of their liberty without due process of law. This is well known, and again, uncontroversial among legal historians
What is less well known is that, contrary to Curtis, most Republicans believed the due process clause protected the right to bring property into the territories. "[T]he slaveholder [would have] the same right to take his negroes to Kansas that a freeman has to take his hogs or his horses," Abraham Lincoln declared, "if negroes were property in the same sense that hogs and horses are." Justice McLean's dissent agreed as did the Republican justices deciding the Insular cases almost a half a century later. The issue that divided Republicans from Taney concerned whether slavery enjoyed the same form of protection.
In short, substantive due process is as old as the Republican. At the end of the day, almost every political movement has insisted that due process or some other clause protects what have become mislabeled as "unenumerated rights." The real issue is what is the best reading of those rights, not whether they exist.

Comments:

People should read the Collected Works of Abraham Lincoln (as well as antebellum Republican uses of due process) for themselves to decide these issues. A small point worth noting. As Basler points out, Abraham Lincoln never actually said "The Constitution itself impliedly admits that a person may be deprived of property by due process of law." Rather, the quotation was found in some notes Lincoln prepared for his debates on Douglas. Now, again, readers can decide whether in the context of those notes, Lincoln was taking a stand on substantive or procedural due process (as Andrew believes) or simply denying that slavery was constitutionally protected by the fifth amendment (as I believe). The more interesting point, however, is that when it came time for the debates, Lincoln abandoned the argument in question.
 

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So, the bottom line is what "due process" means. For instance, if the property was used in a crime, it might be able to be seized. OTOH, if it was simply used to repay the governor's buddies (after a nice fair hearing), not so clear.

John Orth wrote a nice little book on the history of this clause. Since the Middle Ages, there was some suggestion there was a substantive content.

Later on, it was basically a second generation way to protect natural rights and restrain the overreaching of legislatures that were beginning to use their powers a lot more.

I'm not sure how the final cite in the top post proves much. Common law based rights is a time recognized practice.

Second, quite a number of cases from the 1790s to the 2000s says just the opposite, namely some sort of fundamental liberties the legislature must not invade. And, if they do, it would not be proper process. Some early ones: Mugler v. Kansas; CITIZENS' SAVINGS & LOAN ASS'N v. CITY OF TOPEKA, 87 U.S. 655 (1874)

Surely, the doctrine has been debated, especially when judges felt securing such rights should be left to the legislature. But, at least to some degree, one side has one the debate. The doctrine is longstanding and legitimate.

At the very least, it is quite arguably legitimate. Those who suggest it is patently ridiculous assume a bit too much.
 

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