After quite a delay, this is my third post on substantive due process. In my first post, I discussed the evolution of my personal views on substantive due process. In my second post, I described Ryan Williams new article, The One and Only Substantive Due Process Clause, which argues that the original meaning of the 14th Amendment protects certain types of substantive due process, but that the 5th Amendment protects only procedural due process. In particular, Ryan argues that 14th Amendment Due Process Clause protects two types of substantive due process. One type is the general law conception, which
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.
The second type is the vested rights conception, which
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.
In this post, I examine Ryan’s argument more critically, discussing issues that remain to be developed. To understand this post, readers should be sure to read my second post describing Ryan’s article.
As I stated in the prior post, the key claim for me is the following:
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.
This is a very powerful claim – 20 states versus 2 – but one wants to be sure about it. Thus, it would help if other scholars examine these cases and the caselaw generally, and confirm Williams’s interpretation. His claim is sufficiently important that other scholars may do this.
Assuming that this claim is correct, I have three main questions to ask.
First, how do we address the fact that Williams finds evidence of two types of substantive due process? If there is evidence from 12 states for one type and from 8 states for the second type, then it is harder to argue for the dominance for any type of substantive due process. For example, type A might be followed by 12 states, type B by 8 states, and no substantive due process by 2 states. We might still accept substantive due process of one type, but the evidence would be less overwhelming. (And since the vested rights conception of substantive due process has two versions, perhaps our list of cases should be divided into three categories, A, B, and C, further reducing the dominance of any one approach over the no substantive due process interpretation.) Of course, individual states might follow more than one type.
Second, I have questions about the meaning of the two types of substantive due process. Consider the vested rights type that prohibits a law that transfers property from A to B. How broad is this principle? Does it merely cover a naked transfer or could it reach laws that benefit one group at another’s expense based on the assertion of a public interest, such as a law that would prohibit liability for the results of construction to nearby landowners justified as a means of promoting economic growth? Or consider the general law conception of substantive due process, which requires general and impartial laws rather than special or class legislation. How should we understand this provision? Most importantly, what constitutes special or class legislation?
Finally, one can ask questions about how these two types of substantive due process fit into the remainder of the 14th Amendment and the Constitution. For example, would it have made sense for the enactors of the Amendment to have included a provision protecting against class legislation if they already had an Equal Protection Clause? Similarly, how does substantive due process relate to the Privileges or Immunities Clause, if the latter protects substantive individual rights. These questions are both relevant to whether the Constitution adopts these two approaches to substantive due process and, if so, to the meaning of other provisions of the 14th Amendment.
To conclude, I do not mean to criticize Ryan’s article, which is probably the best originalist piece in the field. It is just to argue that there is plenty of room for a second article.
Posted at 7:15 AM