Legal Commentary

The One and Only Substantive Due Process Clause

By David Bernstein

Attorney Ryan Williams recently published an article in the Yale Law Journal called ?The One and Only Substantive Due Process Clause.? It?s pathbreaking.

Essentially, Williams argues that in 1791, when the Fifth Amendment?s Due Process Clause was enacted, ?due process of law? had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment?s Due Process Clause was enacted it was widely accepted that ?due process of law? also had a substantive meaning, and prohibited certain types of legislation.

That, in itself, is not entirely new. Indeed, based on my own reading of the previously existing sources, it?s more or less what I say in Chapter 1 of Rehabilitating Lochner. What?s new is the depth of the research Williams has undertaken. Previously, attention had focused mainly on a few major state court cases, along with Dred Scott v. Sandford. Williams goes well beyond the usual suspects, which allows him to conclude that by 1868, ?a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law.? (Few state courts, meanwhile, had rejected ?substantive due process?, as opposed to simply not ruling on the issue one way or another).

Williams?s article poses a challenge to the minority of scholars who argue that the original meaning of the Fifth Amendment?s Due Process Clause was ?substantive,? and even more so to the much larger group of scholars who claim that the substantive interpretation of the Fourteenth Amendment?s Due Process Clause was simply invented by activist judges in the Gilded age and ?Lochner era.? Indeed, Williams?s research suggests that a sincere originalist may be required to accept a substantive interpretation of ?due process of law.?

Aside: Kudos to the Yale Law Journal, which I?ve noticed has published some very interesting scholarship this year which has not emanating from the standard sources, i.e., well-known law professors at top 15 or so schools.

Full post as published by The Volokh Conspiracy on March 23, 2011 (boomark / email).