Explaining 'what process is due' in 'substantive due process'

[Laurence Claus]

The Magna Carta roots of the “law of the land” limitation on government 
power surely support a purely procedural construction. Chapter 39 of Magna 
Carta declared that “freemen” could not be imprisoned or badly treated in 
various other recited ways except by “the lawful judgment of his peers or 
by the law of the land.” That original phraseology was inserted directly 
into some eighteenth-century American constitutive documents (e.g. the 
Virginia Bill of Rights of 1776, § 8: “that no man be deprived of his 
liberty, except by the law of the land or the judgment of his peers”). It 
necessarily follows that when the framers of American constitutions 
protected "liberty" with the phrases “law of the land”or “due process of 
law,” they meant to afford the protection of recognized legal procedures 
for deciding whether to lock someone up, because they understood those 
phrases to connote a general alternative to one particular procedure, 
namely trial by jury. Under the Virginia Bill of Rights, the state could 
lock someone up provided the decision to do so had the support of either a 
jury verdict or “the law of the land.” Notice that when explicitly in the 
alternative to jury trial, as “substantive” construction of “law of the 
land” would be absurd. What sense would there be to hold that the law of 
the land absolutely forbade the state to restrict certain human behavior, 
when the state was constitutionally entitled to circumvent the "law of the 
land" limitation simply by providing for jury trial as a condition 
precedent to applying the proposed restriction?

Consistent with their understanding that due process was a general 
alternative to jury trial, and wishing to make more detailed provision in 
relation to the latter, the drafters of the 1789 Bill of Rights split the 
two, elaborating on trial by jury in the Sixth and Seventh Amendments, and 
embedding its general alternative in the Fifth. That textual shift hardly 
supported the decisions through which nineteenth-century courts transformed 
the due process clause into an absolute protection of judicially-favored 
human interests from regulation.

Laurence Claus
University of San Diego School of Law



At 06:49 AM 10/2/2005, Tom Grey wrote:

>David Bernstein makes the decisive point when he reminds us that 19th
>century courts and commentators universally assumed the equivalence of "due
>process" and "law of the land" clauses in state constitutions. There were
>dozens or even hundreds of state constitutional decisions striking down
>laws under these clauses, most of them involving protection of property
>rights. Almost none made any reference to whether the defects were
>"substantive" or "procedural." Indeed the large division of law into
>"substantive law" and "procedure" -- so natural to us -- did not become
>familiar until well after the adoption of the statutory substitution of the
>single civil action for the common law writs in the latter half of the
>nineteenth century. This dichotomy was an advanced novelty until the 20th
>century. The positivist focus on the statute as the paradigm of law only
>gradually gained precedence over the older view of law as basically common
>law, an amalgam of right reason and immemorial custom, punctuated by the
>occasional statute designed to repair minor blemishes in the seamless web.
>The older view was reflected in the familiar canon that statutes in
>derogation of the common law should be strictly construed. It was only one
>more short step to the idea  that if a statute violated common law rights
>of life, liberty, or property without an adequate rationale of remedy or
>repair, it had not been adopted with "due process of law" or (the same
>thing) was not adequately consonent with "the law of the land." This kind
>of reasoning did not start with a preliminary classification of laws, or
>claimed constitutional defects, into categories of "substantive" and
>"procedural."
>
>Tom Grey
>
>
>
> 
>
>                       DavidEBernstein at aol.co 
>
>                       m                             To: 
> nlund at gmu.edu, conlawprof at lists.ucla.edu
>                       Sent 
> by:                      cc: 
>
>                       conlawprof-bounces at lis        Subject:  Re: 
> Explaining 'what process is due' in 'substantive due process'
>                       ts.ucla.edu 
>
> 
>
> 
>
>                       10/01/2005 05:57 
> PM 
>
> 
>
> 
>
>
>
>
>
>My friend Nelson knows as well as anyone that the due process clause was
>interpreted by many judges (for good reason) as being the equivalent of
>"law of the land" clauses (e.g., no person shall be deprived of life,
>liberty, or property, except by the law of the land).  Due process of law,
>like the "law of the land" could refer either only to the positive law
>(where the proper legal procedures follows, or was there a relevant, duly
>passed law that was enforced), or also to what would have been considered
>either natural law or simply inherent limits on the powers of governments
>in a free society.  The latter view of due process surely gives judges
>discretion to do a great deal of mischief, but I remain to be convinced
>that it was an implausible, or necessarily incorrect, understanding of "due
>process of law."  Dred Scott, while a fun rhetorical tool for conservative
>opponents of this view of due process of, hardly originated the view that
>due process of law had what we now call a "substantive" component.
>
>In a message dated 9/29/2005 12:56:46 PM Eastern Standard Time,
>nlund at gmu.edu writes:
>  It may also be worth pointing out that these courts, at least to my
>  knowledge, never, ever, explained how the rights they were protecting,
>  such as the right to hold human beings as slaves in the Territories,
>  were procedural rights.
>
>  Nelson Lund
>
>David E. Bernstein
>Visiting Professor
>University of Michigan School of Law
>Professor
>George Mason University School of Law
>http://mason.gmu.edu/~dbernste
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private.  Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly or
>wrongly) forward the messages to others.
>
>
>
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051003/1a44638e/attachment.htm