This post is in reply to one by Devin Watkins at the Liberty Law Blog on November 21 which was titled "Defining Liberty Properly". We are concerned here with the Due Process Clause, and how “liberty” is defined in the context of that clause.
As Mr. Watkins points out, there is an old Blackstonian distinction between civil liberty and natural liberty. The first is basically a subset of the second, and Mr. Watkins is apparently correct that Thomas Jefferson was referring to this distinction when he wrote the following in 1819:
[O]f Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.
Thus, Jefferson used the bare word "liberty" to mean what Blackstone called natural liberty, and used the term "rightful liberty" with reference to what Blackstone called civil liberty. My understanding is that the bare word "liberty" in the Due Process Clause means what Jefferson said this bare word meant: natural liberty, not merely civil liberty. Jefferson was hardly alone in using the bare word "liberty" to mean natural liberty. For example, when George Washington transmitted the original draft Constitution to the Continental Congress, he wrote: "Individuals entering into society, must give up a share of liberty to preserve the rest." I don’t think anyone disputes that Washington was using the bare word "liberty" to mean natural liberty, rather than merely civil liberty.
Assuming that the word "liberty" in the Due Process Clause means natural liberty rather than merely the subset called civil liberty, then people entitled to exercise such liberty would be entitled to violate the rights of others (per the Jefferson quote above), and so it would seem absurd to infer a substantive legal right to the liberty discussed in the Due Process Clause. I do not see how any proponent of substantive due process can reasonably infer a substantive right to civil liberty without inferring a substantive right to natural liberty, given the textual fact that the liberty mentioned by the clause is natural liberty.
Mr. Watkins points to the dissent by Justice Thomas in Obergefell v. Hodges (2015). Justice Thomas wrote: "As used in the Due Process Clauses, 'liberty' most likely refers to 'the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.' 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone)." I think Justice Thomas was being a bit imprecise there, and should not have included those last six words; that is, "liberty" in the Constitution most likely refers to "the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint." The ability to change one’s situation without restraint is an extremely broad concept, and is synonymous with natural liberty, which again confirms that the word "liberty" in the Due Process Clause refers to natural liberty, not merely civil liberty. When the government seeks to restrain natural liberty, it must do so by due course of law (i.e. due "process" of law), and the resulting curtailed liberty is what Blackstone called "personal liberty."
If Mr. Watkins were correct that the word "liberty" in the Due Process Clause means civil liberty rather than the broader notion of natural liberty (at least I understand that to be his position), then due process of law would no longer be required when a president or governor deprives someone of any type of natural liberty that does not qualify as civil liberty, and so not even statutory authorization would be needed for a president or governor to do that. In saying this, I am not equating "due process of law" with "statutory authorization," and I do not believe that these two terms are synonymous (as Mr. Watkins has claimed I do); statutory authorization is surely an element in the proper definition of due process of law but saying so does not equate statutory authorization to due process of law.
Although the foregoing analysis seems (to me) to disprove substantive due process, it is unnecessary, because there are other ways of disproving the (deeply flawed) notion of substantive due process. To wit, let us suppose for argument’s sake that Mr. Watkins is correct that the word “liberty” in the Due Process Clause refers merely to civil liberty, and not natural liberty (despite how Jefferson and Washington used the bare term “liberty” and despite what Blackstone said). I generally agree with Mr. Watkins that, "Sir Edward Coke, perhaps the greatest of the English jurists, was considered authoritative by early American courts as to the meaning of the common law, and specifically the 'due process of law'" (if we allow for additional authoritative sources like Blackstone and the highest courts of England). But Mr. Watkins goes wrong when he says that, "Coke interpreted the words 'law of the land' and 'due process of law' to mean 'by indictment or presentment . . . in due manner, or by writ [original] of the Common law.'" After all, indictment and presentment are entirely procedural concepts, not substantive at all; moreover, the U.S. Supreme Court long ago explained correctly that indictment was cited by Lord Coke merely as "an example and illustration of due process of law as it actually existed in cases in which it was customarily used." Look at it this way: if Lord Coke said that masturbation was contrary to the law of the land (and he may well have said so because it was indeed a capital offense), then that would not mean the term "law of the land" is inherently inconsistent with legal masturbation, only that the statutes in England during Coke’s time happened to make masturbation illegal. The very same principle applies to this statement by Lord Coke (which Mr. Watkins quotes): "Generally all monopolies are against this great Charter, because they are against the liberty and [freedom] of the Subject, and against the Law of the Land." A reasonable way to construe that statement by Coke is that monopolies were forbidden by statute, therefore they were against the law of the land, and therefore granting them was against Magna Carta. Lord Coke's understanding of the due process clause of Magna Carta is not complicated: "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England.” Thus, for Coke, statute law was sufficient to satisfy that requirement of Magna Carta.
Mr. Watkins also cites some cases, including Bonham’s Case (1610), which as far as I know did not mention the due process clause of Magna Carta, and anyway the notion that Bonham's Case endorsed judicial review was not widely accepted in England during the eighteenth century, nor even in America after 1772 (when Blackstone's writings took hold). In any event, I can reciprocate by citing a later and much more pertinent case, Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704), in which Justice Powys of the King's Bench stated:
[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law…. By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law ; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any; nay, if there be any superiority, this is a superior law.
Another case cited by Mr. Watkins is an American one: Hoke v. Henderson, 15 N.C. 1 (1834). That case was decided much too late to affect the original meaning of the Due Process Clause in the Bill of Rights, and it was eventually overturned, by Mial v. Ellington, 134 N.C. 131 (1903). Hoke was by no means typical: it "stands out in strong contrast…to every published decision and opinion on the subject which we have ever seen." Conner v. Mayor of N.Y., 2 Sandf. 355, 373 (N.Y. Sup. Ct. 1849), aff’d 5 N.Y. 285 (1851).
Anyway, I wanted to reply carefully to the interesting points that Mr. Watkins raised in his lengthy blog post of November 21, and will close now by saying very sincerely that I strongly support rightful liberty, and agree that our government was instituted largely to protect it, but a mere majority of the U.S. Supreme Court is not the only entity in the United States that has a critical role in divining the fundamental contours of rightful liberty, under the original public meaning of the U.S. Constitution. Mr. Watkins is more than welcome to post a reply here at this blog if he would like, and in any event I am happy to now give him the last word in our discussion.
UPDATE: In this post, I mentioned a dissent by Justice Thomas regarding the phrase "life, liberty, or property." In that dissent, he inferred a narrow meaning of the word "liberty" so that the words "life" and "property" would not become superfluous, but I'm not convinced that superfluousness is really an issue in this instance. I agree that loss of "life" or "property" should not fall (entirely) within loss of "liberty," or else there would be no point in mentioning "life" or "property" in the Due Process Clause. But, I am not sure that there is really any superfluousness problem involving the word "life," because at the founding (as today) people often described death as completely mysterious, or instead as completely liberating (i.e. the opposite of a deprivation of liberty). Likewise, I am not convinced that there is really a superfluousness problem involving the word "property," given that a person in the last stages of life often owns property that seemingly has nothing to do with his "liberty" under any interpretation of that word (i.e. a person with severe dementia or a comatose person will often have property somewhere that he cannot use, or control, or benefit from in any way). Even if Justice Thomas is correct about the definition of "liberty," I do not see that that definition is very important for due process purposes, because a correct definition of other words in that clause (like "due process") should settle most controversies. And, even if the correct definition of "due process" does not settle everything, still a law that deprives people of a disputed "liberty" like "liberty of contract" is typically accompanied by enforcement measures (jail, fine, etc.) which everyone agrees take away "life, liberty, or property."
Posted at 10:45 AM