In my previous post, I discussed the evolution of my views on Substantive Due Process. In this post, I will begin to discuss Ryan Williams excellent new article on Substantive Due Process.
In The One and Only Substantive Due Process Clause, Ryan Williams argues that the original meaning of the Due Process Clause of the 14th Amendment, but not of the 5th Amendment, has a substantive component. The article is an extremely powerful first step towards establishing that the original meaning of the 14th Amendment includes a certain type of substantive due process protection.
Williams’s article makes various claims:
1. At the time of the 5th Amendment, the leading view of due process (and the related Law of the Land Clauses) was some type of procedural due process. This claim is based on a review of English and American law before and after the enactment of the Amendment. While there was some evidence that due process was viewed in substantive terms, this involved a small minority of views. The strong majority position viewed the concept as procedural.
2. In the years between the enactment of the 5th and the 14th Amendments, substantive due process gradually emerged and became popular.
3. By the time of the 14th Amendment, substantive due process was accepted to a much greater degree than previous academic works suggest. The concept was accepted by both abolitionists and defenders of slavery. It was also reflected in the law of more than half of the states.
4. By the time of the 14th Amendment, there were two leading understandings of substantive due process: the general law view and the vested rights view.
According to Williams:
this general law conception interpreted due process to require general and impartial laws rather than “special” or “class” legislation that imposed particular burdens upon, or accorded special benefits to, particular persons or particular segments of society. This conception of due process as a guarantee of equal and impartial laws bears some resemblance to modern doctrine under the Fourteenth Amendment’s Equal Protection Clause
According to Williams:
The vested rights conception of due process prohibited two closely related forms of legislative interference with private property: (1) depriving persons of property for use by the public without compensation and (2) transferring property from person A to person B, either with or without compensation.
Neither of these views reflected the modern fundamental rights type of substantive due process of Roe or Lochnerian substantive due process.
For my purposes, the key claim is the following one. As Williams summarizes it:
By the time of the Fourteenth Amendment’s ratification in 1868, courts in at least twenty of the thirty-seven then-existing states had endorsed some version of substantive due process in connection with interpreting either due process, law-of-the-land, or similar provisions in their own constitutions or the Fifth Amendment Due Process Clause. By contrast, courts in only two states—New Hampshire and Rhode Island—had explicitly rejected a substantive role for such provisions. The New Hampshire precedents, which interpreted “law of the land” as a reference to duly enacted law, dated from 1817 and had not been substantially revisited or elaborated upon in the following decades. The Rhode Island decisions, which followed shortly after the New York Court of Appeals’s decision in Wynehamer and which similarly addressed a challenge to the constitutionality of state prohibition legislation, interpreted that state’s law-of-the-land provision to be exclusively a guarantee of procedural protections in criminal cases. The Rhode Island decisions have been cited by critics of substantive due process as support for the proposition that Wynehamer “was not a typical case,” and that “state courts usually reached the opposite conclusion” with respect to the meaning of due process and law-of-the-land provisions. But in view of the many decisions from other states endorsing a substantive role for due process and law-of-the-land provisions, this conclusion seems difficult to square with the historical record.
This is extremely important. If 20 of the 37 states endorsed some version of substantive due process and only 2 rejected it, that suggests (along with the other evidence Williams cites) that, when the 14th Amendment was enacted, due process with a substantive component was a much more common understanding of due process than was purely procedural due process.
If this claim withstands further scrutiny, there will be much to say in favor of recognizing this type of substantive due process. At present, I believe that Williams has presented enough evidence to lead originalists to no longer presumptively reject substantive due process under the 14th Amendment.
In my third post, I will discuss some of the complications of Williams’s argument and issues that remain to be resolved.
Posted at 7:01 AM