I largely agree with Chief Justice Roberts’ dissent in the Obergefell case. But one part caught my attention as being particularly problematic. Roberts conceded that the Supreme Court had given its blessing to the doctrine of “substantive due process” prior to adoption of the Fourteenth Amendment. Justice Scalia has made the same concession, and it is a mistake. Here is what Roberts wrote about this subject in Obergefell:
The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted 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 . . . could hardly be dignified with the name of due process of law.” Id., at 450.
Here is a fuller quote from Dred Scott:
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 offense against the laws, could hardly be dignified with the name of due process of law. So, too, it will be hardly contended that Congress could by law quarter a soldier in a house in a territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a territory who was convicted by treason for a longer period than the life of the person convicted; nor take private property for public use without just compensation.
Read the last part of that last sentence carefully. Was Taney suggesting that slavery could be banned in federal territories provided that the government paid compensation? Maybe so. Law professor David P. Currie once wrote: “not even Taney would say that compensated emancipation would offend the due process provision” (emphasis in original). Taney’s opinion for the Court in Dred Scott clearly stated that the Due Process Clause and all other constitutional protections have just as much force inside federal territories as they have outside. Beyond that, Taney was unclear about the Due Process Clause.
In 1856 (only a few months before the Dred Scott case was decided), the Court unanimously said in another case: “To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? …. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.” Thus, if you violate the Takings Clause, then you violate the Due Process Clause. This is not substantive due process at all. It is the simple command of Magna Carta ringing through the ages: “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.” The Takings Clause is part of the law of the land, and so the government cannot deprive people without conforming to the Takings Clause. As far as I am aware, there is no evidence that Taney meant any more than that a violation of the Takings Clause implies a violation of the Due Process Clause.
Aside from the Bill of Rights, Taney's argument for the unconstitutionality of the Missouri Compromise was based upon enumerated powers. He argued that none of Congress's enumerated powers were sufficient for that purpose ("The only power conferred [upon Congress over slavery] is the power coupled with the duty of guarding and protecting the owner…."). The notion that the Court in Dred Scott endorsed substantive due process is a mistaken and self-defeating argument for judges to make, if they support judicial restraint; not only is it incorrect, but the alleged stigmatizing effect of Dred Scott is counteracted by other factors such as precedent, and moreover not everything in Dred Scott ought to be stigmatized (e.g. the notion that the Bill of Rights applies in areas of the country under exclusive federal control). The fact that even the Taney Court never stooped so low as to invoke substantive due process is a much more compelling argument against that doctrine than the (incorrect) idea that it did so.
Posted at 10:06 AM