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.
Posted 2:33 PM by Mark Graber [link]