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.


Mark Graber is correct that, prior to the Civil War, there were instances where "Due Process of Law" was given a substantive interpretation, such that a Due Process clause (or similarly worded Law of the Land clause) could be used to strike down substantive legislation. But there was much more authority the other way.

Mark Graber provides an Abe Lincoln quote that doesn't mention due process. Well, here's an Abe Lincoln quote that does:

"The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law.'"

4 COMPLETE WORKS OF ABRAHAM LINCOLN 211 (John G. Nicolay & John Hay eds., Lincoln Memorial Univ. 1894).

Before the Civil War, many courts scoffed at the notion that the Due Process Clause could be used to strike down substantive legislation.

For example, in 1819, the New Hampshire Supreme Court addressed the "law of the land" clause in that state's constitution. The court did not buy the notion that an unenumerated right "can be protected from the operation of a law of the land, by a clause in the [state] constitution, declaring that it shall not be taken away, but by the law of the land."

Dartmouth College v. Woodward, 1 N. H. 111, 129 (1817).

The Supreme Court of Rhode Island felt the same way. See State v. Keeran, 5 R. I. 497, 504-507 (1858) (rejecting a subjectivistic interpretation of Rhode Island's "law of the land" clause).

Given the fractured views about due process before the Civil War, the real question here is what the framers of the 14th Amendment intended. The record shows that their overriding intent was that the 14th Amendment's Due Process clause have the same meaning as the same words in the Fifth Amendment.

There is hardly any evidence from before 1792 that substantive due process was a legitimate doctrine for striking down legislation. The U.S. Supreme Court has unanimously admitted as much:

"[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.

University of Michigan v. Ewing, 474 U.S. 214, 225-226 (1985).

In other words, the doctrine is illegitimate.

By the way, I believe that Mark Garber's Lincoln quote is incorrect. The correct quote is this:

"It is said that the slaveholder has the same political right to take his Negroes to Kansas that a freeman has to take his hogs or his horses. This would be true if Negroes were property in the same sense that hogs and horses are. But is this the case? It is notoriously not so."

Mark Graber kindly emailed me to say that Lincoln did not use the word
"political" in the quoted sentence. Instead, Professor Graber writes, that word was put in by the editor of the newspaper reporting the story.

Whether or not Lincoln said it (I wasn't there!), that's what he meant, because Lincoln was recounting what Stephen Douglas had said.

Not to beat this thing to death, but Professor Graber has previously quoted this sentence as follows (see Constitutional Commentary, Vol. 14, 1997, brackets as in original):

"'[T]he slave-holder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses,' he informed his fellow citizens, 'if negroes were property in the same sense that hogs and horses are.'"

This is a much better way to write the sentence, and is also how it's written in the Collected Works by Basler (see 2 The Collected Works of Abraham Lincoln, 245, 264, Roy P. Basler, ed., Rutgers U. Press, 1953).

It's obvious from the context that Lincoln was referring to political rights as opposed to constitutional rights.

How do "political rights" differ from "constitutional rights" in the context of Lincoln's statement?

Shag, here's Lincoln's statement again, without excessive editing:

"It is said that the slaveholder has the same [political] right to take his Negroes to Kansas that a freeman has to take his hogs or his horses. This would be true if Negroes were property in the same sense that hogs and horses are. But is this the case? It is notoriously not so."

It's indisputable that Lincoln was referring to what had been said by Stephen Douglas (his political opponent). Douglas advocated "popular sovereignty," which meant that the people of Kansas could decide for themselves whether slaves could be taken there as property, and also whether things like hogs and horses could be taken there as property. Thus, Douglas was not saying that people had a constitutional right, only that they had a political right, because the people of Kansas so decided.

As far as the Due Process Clause of the Constitution is concerned, Abe Lincoln was clear as a bell:

"The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law.'"

Incidentally, the full text summary of Lincoln's speech of October 4, 1854 is available online

Note that the speech was given years before the Dred Scott case was decided. In contrast, the other Lincoln quote that I've provided ("The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'") was made after Dred Scott had been decided.

Anyway, here's an extended excerpt from the newspaper summary of Lincoln's speech of October 4, 1854, in which Lincoln distinguished between constitutional rights, political rights, legal rights, natural rights, and social rights.

"Mr. Lincoln now came to the arguments in favor of the Missouri Compromise repeal, or on the ground that the repeal is just and right in itself. He demanded what kind of 'right' was meant in the proposition. He denied that there was any 'constitutional' right to the repeal. He had already shown that the Mo. Compromise had received every sanction that any law could have to establish its constitutionality. It has been originated in principle,

Page 245

"in the ordinance of '87, concurrently almost with our Constitution, and by the founders of it, who certainly understood its principles. It has been sustained by all courts and almost every great Statesman down to this day. What constitutional right existed for its repeal? Or what legal right? Can any one point to a law, in any of the past legislation of the country that creates the right named? The Compromises of 1850 are the only measures relied on, and it is already shown that they re-affirm instead of annual the right of Freedom under the Compromise.

"What natural right requires Kansas and Nebraska to be opened to Slavery? Is not slavery universally granted to be, in the abstract, a gross outrage on the law of nature? Have not all civilized nations, our own among them, made the Slave trade capital, and classed it with piracy and murder? Is it not held to be the great wrong of the world? Do not the Southern people, the Slaveholders themselves, spurn the domestic slave dealer, refuse to associate with him, or let their families associate with his family, as long as the taint of his infamous calling is known?

"Shall that institution, which carries a rot and a murrain in it, claim any right, by the law of nature, to stand by the side of Freedom, on a Soil that is free?

"What social or political right, had slavery to demand the repeal of the Missouri Compromise, and claim entrance into States where it has never before existed? The theory of our government is Universal Freedom. 'All men are created free and equal,' says the Declaration of Independence. The word 'Slavery' is not found in the Constitution. The clause that covers the institution is one that sends it back where it exists, not abroad where it does not. All legislation that has recognized or tolerated its extension, has been associated with a compensation---a Compromise---showing that it was something that moved forward, not by its own right, but by its own wrong.

"It is said that the slaveholder has the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses. This would be true if negroes were property in the same sense that hogs and horses are. But is this the case? It is notoriously not so."

Note that, even if the bracketed term "political" had been inserted mistakenly, and Lincoln had meant to refer to all types of rights, still he was not saying what rights a person would have to take hogs and horses into Kansas; he was merely saying that whatever such rights existed, the same rights would apply to slaves if slaves were property in the same sense.

Compared to that 1854 speech of Lincoln, his later statement in 1858 is obviously relevant to the meaning of Due Process, and is crystal clear:

"The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law.'"

One final note: Lincoln's 1854 speech was published in the Illinois Journal, which was pro-Lincoln (in contrast to the Illinois State Register which was pro-Douglas).

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.

Yes, Basler did infer that the quote in question ("The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'") was written in preparation for a debate in Jonesboro, Illinois. In that Jonesboro debate, Douglas was first up, and Lincoln was second up, in rebuttal. Had Lincoln been first up, then it might be significant that Lincoln didn't utter the quote in question. But a rebuttal is always very much contingent upon what the first debater says.

In any event, Lincoln did hold on to these written words. He left them to his most trusted aides (Nicolay and Hay) who recorded them for posterity: "The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law.'"

This comment has been removed by a blog administrator.

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.

This comment has been removed by a blog administrator.

I guess Joe deleted the comment that I just responded to.

Joe, responding to your post of 8:12 PM, I do not argue that the doctrine of substantive due process is patently ridiculous. In fact, I commented recently at this site that it is plausible to attribute substantive content to the word "process," because this word in the 5th Amendment originally had a technical meaning that allowed for substative content. But, if one is willing to construe the word "process" according to its original, technical meaning, then one must also be willing to construe the little word "due" according to it's original technical meaning: "due according to the law of the land" rather than "due according to principles of fairness, liberty, justice, and the like."

You mentioned the Mugler and Topeka cases. But, the 5th and 14th Amendments were adopted long before those two cases. So, I don't think it would be possible for either of those cases to have superceded the meaning of those two amendments.

As for Topeka, it had nothing to do with the Due Process Clause. It was a diversity case, in the days before the Erie doctrine. In a later case (Davidson), the Court emphasized that it could not take jurisdiction of "principles of general constitutional law... [unless it was] sitting in review of a Circuit Court of the United States, as [it was] in Loan Association v. Topeka."

As for Mugler, that case rejected the leading antebellum substantive due process case, Wynehamer v. New York. The Mugler Court said that a guy who sold beer which had been manufactured before enactment of a beer-ban was nevertheless properly convicted, because such a conviction was "very different from taking property for public use, or from depriving a person of his property without due process of law."

Oh, I forgot to respond to Joe's point that "common law based rights is a time recognized practice." Even if it is acknowledged that the Due Process Clause allows the federal courts to create some sort of "common law," the time-honored tradition of the common law was that it was always subject to being modified by the legislature. The term "law of the land" embraced both the common law as well as statute law, and in case of conflict the statute law ruled. This is really the only interpretation consistent with the first sentence of our Constitution vesting all legislative power in Congress (also see the Supremacy Clause statting that statute are part of the "supreme" law of the land).

If "due" refers to the "law of the land," then how does that operate within a system of dual sovereignty? In other words, if due process only affords the protection of the "law of the land," then does that suggest that due process can only be satisfied by the supreme law of the land? Which, as the Supremacy Clause states, is the Constitution and all laws of the U.S. made in pursuance of the Constitution...therefore, doesn't that suggest that due process, according to the 14th Amendment can only be satisfied when the process comports with federal and constitutional standards---this would mean that state law must be at LEAST as protective as federal law? In effect, it would seem that such a reading of the due process clause would read out state law from the system all together...

In addition, the Supremacy Clause says that legislation passed in pursuance of the Constitution is the supreme law of the land...therefore, legislation must pass constitutional muster in order to attain supreme, or binding at all, status...

Skid, here's how Chief Justice Morrison Waite explained for the Court in 1875:

"Due process is process due according to the law of the land. This process in the States is regulated by the law of the state. Our power over that law is only to determine whether it is in conflict with the supreme law of the land, - that is to say, with the Constitution and laws of the United States made in pursuance thereof, - or with any treaty made under the authority of the United States."

so, once again, state law, in a rather obvious point, has to pass a constitutional test as a baseline. similarly federal law has to pass that same baseline. therefore, in terms of protection, they both must be at least equivalent, and there must be judicial review in order to determine that.

so, if there is a process accorded by the law say of georgia, then that law must accord with constitutional principles...does that mean that it must only accord with procedural principles? no, it must also comport with the substance of the constitution (at least according to incorporation)...hence, substantive due process...

the limits of substantive due process stretch as far as the constitutional interpretation...therefore, if for example, there was a rule of construction saying that enumeration in the constitution does not disparage other rights, then substantive due process must extend to those rights as well...

in the end, it turns into a rather vicious cycle...state legislatures can pass laws affecting the rights of its citizens..those laws must comport with the constitution...the constitution (the supreme law of the land) lacks the power to strip the people of certain unenumerated rights...therefore, neither can the state legislation...and so, we arrive at the substantive due process doctrine that is so hotly contested...

Unfortunately, I have some other stuff to do, and therefore will be ducking out of the conversation. Thanks.

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