Dred Scott and Kelo

The closest analogy to the substantive due process argument in Dred Scott v. Sandford isn't Roe v. Wade. It's the dissenters' position in Kelo v New London.

Have I got your attention? Good, because it's time for a little lesson on the history of substantive due process.

Dred Scott is often cited as the Supreme Court's earliest flirtation with the idea that the Due Process Clause places substantive as well as procedural limitations on government, often known as the doctrine of substantive due process. Because Roe v. Wade also relies on the idea of substantive due process, critics of Roe often invoke Dred Scott to show why Roe was such a bad idea.

There is a second comparison between Dred Scott and Roe that is sometimes run together with the first: In Roe the Supreme Court held that fetuses are not persons; in Dred Scott the Supreme Court held that blacks are not citizens. These are not substantive due process arguments; they are arguments about the original understanding of the constitutional text. One of these two arguments is based on sound history and the other is not. Guess which one? It turns out that it's Roe. In 1868 the word "person" in the Fourteenth Amendment was not generally understood to include persons who were not yet born, in part because, at common law, abortion was not a felony before quickening. Dred Scott's argument about the original understanding of citizenship, however, is not sound. Taney's originalist argument that blacks were not expected ever to be citizens is not supported by history, as Justice Curtis's dissent shows: there were in fact free black citizens in various states at the time of the founding.

But, today, as I said, I'm interested in substantive due process. Many people think that substantive due process is inconsistent with the original understanding and that the doctrine began with Dred Scott as a means of defending slavery. Therefore Dred Scott is doubly bad. This is incorrect. Taney's argument in Dred Scott comes from the same source as the argument of the dissenters in Kelo, and it has the same pedigree in thought of the founding era.

Now, in fact Taney applies the substantive due process argument incorrectly, as Justice Curtis ably shows in his dissent in Dred Scott. But the key point is that Taney's argument in Dred Scott is not the originator of the idea of substantive due process; the idea goes back to the founding (and before in the history of the English common law), and the same argument lives on in the dissenters' views in Kelo. Indeed, as I shall explain later, it lives in even on the majority's opinion and in Justice Kennedy's concurrence. Substantive due process, I must report, is as American as apple pie, and even the people who publicly disdain it actually invoke it. Kelo is just the latest example.

This doesn't show that Roe or any other substantive due process case is right or wrong; My point is simply that the "substantive due process is evil because it appeared in Dred Scott" meme is stupid and shows an ignorance of history. Moreover, once you understand that history, you will see the closest analogue to Taney's argument in Dred Scott is not Roe v. Wade; it is the dissenters' position in Kelo. And that doesn't make their position necessarily wrong either.

Hoping that I've tantalized you enough with my comparison of Dred Scott and Kelo, let me try to explain what Dred Scott's substantive due process argument was actually about. Remember, this is *not* the infamous argument that blacks can't be citizens-- that's the argument from original intention. (Are you listening, Justice Scalia?) Rather, Taney's due process argument is the claim that Congress could not, through the Missouri Compromise, ban slavery in the territories north of the compromise line, because the Federal Government must abide by constitutional civil liberties guarantees in territories it controls. Thus, Taney argues:

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

And there it is. But before getting to the substantive due process argument, note the context in which it appears. Taney is arguing that if as long as the United States holds territory, the Constitution and the civil rights the Constitution guarantees bind the government there. Does this sound familiar? Yes, it's the same issue at stake in the litigation over interrogation practices at Guantanamo Bay. The Bush Administration put detainees there so that it would not be bound by American constitutional norms, arguing that the Constitution does not follow the flag. But Chief Justice Taney says that won't work. You can't deny people basic constitutional rights just because a piece of land you control isn't part of the mother country. The United States was once a colony, too, and the British Empire didn't protect the colonists' rights. When we became a nation, we promised we would do better. Thus Taney says, "citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose." Take that, King George.

So Taney is making an anticolonial argument: If the United States holds a piece of property as its territory, it cannot escape guaranteeing constitutional rights. Of course the rights he was thinking about were the property rights of slaveholders, and the rights the Guantanamo Bay detainees are arguing for are the right to a hearing and the right not to be tortured or subjected to cruel, inhuman and degrading treatment. But this would not be the first time that constitutional law made strange bedfellows.

You can distinguish the Guantanamo case in two ways. First, Guantanamo Bay is held by a perpetual lease, not owned outright, and second the detainees are aliens, not citizens. But in Rasul v. Bush, Justice Kennedy's concurrence pointed out that this was a formalist ruse. The United States holds Gitmo quite securely; it exercises sovereignty over it in all practical terms. If you buy Taney's argument that we should do better than the British Empire did, the idea that the U.S. can escape its constitutional obligations through the formality of a leasehold argument rings quite hollow. And although Taney spoke of the rights of citizens, the Bill of Rights does not make distinctions between aliens and citizens, particularly not the Due Process Clause, which protects "persons," not citizens.

In any case, Taney's anticolonial argument was rejected by the Supreme Court in a series of decisions in the early 1900's collectively referred to as the Insular Cases. The Supreme Court held that Puerto Rico and other possessions gained through the Spanish-American war were, unlike Louisiana and California, "unincorporated" territories, and so the Bill of Rights (and the Constitution generally) did not apply there. At most, the federal government was required to respect only the most fundamental rights applied. One of those rights, however, was due process of law.

The irony of Dred Scott and the Insular Cases is that today we think of Dred Scott as the very antithesis of a human rights decision. But in fact Dred Scott actually offered a theory of the Constitution that was far more protective of human rights in U.S. possessions (and territories under America's effective control, like Guantanamo Bay) than the doctrines the Court subsequently created to justify the United States' imperial ambitious following the Spanish-American War. But of course, the irony makes perfect sense if you understand that Taney wanted to protect the property rights of white southerners who owned slaves, while the Supreme Court in the Insular Cases didn't want to extent full constitutional rights to the native peoples in Puerto Rico, the Philippines, and elsewhere. Like the Court in the Insular Cases, Taney wanted to protect civil rights only for the people he cared about most; he didn't think that blacks had any "rights which the white man was bound to respect." But if one takes his argument beyond the despicable context of the property rights of slaveholders and applies it, as Taney himself understood it, to the legal obligations of an imperial power to protect basic human rights, it has surprising resonance.

And that brings me to the main event, Taney's substantive due process argument. As you will recall, Taney argued that the federal government couldn't ban slavery in the Territories because that would mean that when the slaveholder crossed into free territory, he would lose his property rights in his slaves; his slaves would become free and own their own labor. Taney argued that "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

What Taney is referring to in this passage had a long and honored history in the United States, and before it, in England. It is the doctrine of vested rights, the idea that the legislature may not take away vested rights of property. The roots of the idea go back to Magna Carta, and its reference to "the law of the land" On the eve of the American revolution, William Blackstone, who generally supported parliamentary supremacy, nevertheless explained that taking private property either for public use without the payment of compensation, or without the owner's consent, would violate the "law of the land." That means A to B transfers without the owner's consent violate the "law of the land." Thus, in 1798, in Calder v. Bull, Justice Chase insisted that "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 ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Justice Chase's argument in Calder is the first Supreme Court appearance of the doctrine of unenumerated rights. Legislatures may not destroy vested rights.

The idea of taking property vested in A and giving it to B, along with the prohibition on a person being a judge in his or her own case, were the most obvious examples of a violation of the law of the land, or of due process of law. And so it appeared to people at the Founding when they wrote the due process clause of the Fifth Amendment. It was generally assumed at the time, and by federal and state courts in subsequent decisions, that the idea of "due process of law" was synonymous with the protections of the "law of the land." And both phrases were generally understood to prevent governments from engaging in simple "naked" transfers-- taking from A and giving to B. Indeed, in 1829 in Wilkinson v. Leland, Justice Story suggested that principle apparently held whether or not a state had a law of the land or due process clause in its constitution: "We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union."

If you look at the language of the Fifth Amendment, you will see that it has not one, but two limitations on eminent domain. The second one is the Public Use Clause, which says that private property shall not be taken for public use without just compensation. The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers. The two clauses appear after each other in the text, first the due process clause, prohibiting A to B transfers, then the public use clause, regulating the conditions under which takings can occur for public use.

And that brings us back to Taney and Dred Scott. Understood against this long historical background, Taney was not making things up out of whole cloth in Dred Scott when he said that the effect of the Missouri Compromise was inconsistent with due process of law. He was adverting to the basic doctrine of vested rights; the idea that government cannot take vested rights from A and give them to B. That, he claimed is precisely what the Federal Government had done when it applied the Missouri Compromise to southerners bringing their property into free territories. It was taking their property and giving it to the slave.

The problem with Dred Scott, you see, was not that Taney was using the idea of substantive due process. For the idea he invoked, that the government could not take away vested rights, was among the most hallowed ideas around at the Founding. And there was nothing particularly evil about the idea of protecting vested rights in property. What was evil was that the United States allowed some people to hold property in other human beings.

The problem with Taney's argument is an incorrect application of the vested rights principle. The appropriate rejoinder is Justice Curtis's in his dissent in Dred Scott. Justice Curtis, it should be noted, *agreed* with Taney that taking vested rights of property violates the Due Process Clause: "this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter." However, Curtis explained, people do not have vested rights in property when they voluntarily enter into jurisdictions that do not recognize that species of property. For in the second jurisdiction the rights are not vested; indeed, they do not even exist. This point doesn't arise with estates in land because they are not movable, so they can't cross jurisdictions, but it does apply to chattels that can be moved from place to place.

If you've been paying attention to the Supreme Court's recent docket, you may find all this talk about taking from A and giving to B familiar. It's what was at issue in Kelo v. New London, in which the Supreme Court held that taking property as part of a comprehensive scheme to stimulate economic development was a public use, and did not violate the Constitution as long as just compensation was given. Justice O'Connor began her dissent by quoting the passage from Calder v. Bull I cited above, which as we have seen, is the original citation for the doctrine of unenumerated rights. What New London was doing, she argued was nothing less than taking property from individual homeowners and giving it to other private parties.

Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion. Of course, the reason was that her argument was nominally premised on the text of the Public Use Clause. But as I noted above, the Public Use Clause doesn't actually say that property can't be taken for private use. It says only that "private property [shall not] be taken for public use, without just compensation." That leaves out takings for private use without just compensation and takings for private use with just compensation. O'Connor is reading into the text of the Public Use Clause things that are not actually there. The prohibition is in the Fifth Amendment to be sure, but not in the Public Use Clause.

So where *do* we get the principle banning takings for purely private use that was at stake in Kelo? We get it from the basic idea of substantive due process, which prohibits A to B transfers and protects vested rights from being destroyed by government. Justice Thomas tries to avoid recognizing this in his dissenting opinion, arguing that despite its language the Public Use clause cannot apply merely to public uses; otherwise, it would allow takings for private use without compensation, which would "contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." He artfully elides the question of what textual provision in the Constitution prevents takings for private use with compensation. We know the answer-- it's the Due Process Clause. That's what most people at the Founding thought, and that's why the Fifth Amendment is written that way.

But, wait, that would mean that in Kelo Thomas is actually making an argument from (shudder) substantive due process. And it would be the same sort of argument that Chief Justice Taney made in Dred Scott. But we all know that Justices Thomas and Scalia don't believe in substantive due process. And they certainly don't agree with anything that awful Chief Justice Taney said in Dred Scott.

Or do they?

And that's not all: Let me point out that the majority and Justice Kennedy agreed that at least some private to private transfers also violate the Constitution. So they too buy into the substantive due process argument, at least where the government deliberately takes land for the purpose of benefiting a private party. (That is to say, they limit the restriction on private use to purely private purposes. This is, roughly speaking, the post-New Deal conception: The legislature can take from A and give to B for a public purpose (and if the legislative act constitutes a taking, it must pay just compensation), but it may not do so for a purely private purpose.)

Let me summarize: Critics of Kelo (including the dissenting Justices) are making a very old kind of argument from substantive due process, indeed the *original* argument from substantive due process, and the very sort of argument that Chief Justice Taney made in Dred Scott. Does that undermine their arguments or make them bad people? No, it does not. And here's the moral of the story: Just because an argument appears in Dred Scott doesn't mean that the idea is bad. The idea that the Constitution follows the flag is not bad, and substantive due process is not bad.

Slavery is bad.