Explaining 'what process is due' in 'substantive due process'
7barksda at jmls.edu
Mon Oct 3 15:53:09 PDT 2005
Laurence Claus writes:
"The Magna Carta roots of the "law of the land" limitation on government power surely support a purely procedural construction."
Would the fairly extensive power of Parliament during this period (if I am correct on this) matter here as to the implication of the Magna Carta for due process under the 5th amendment. My understanding was, and I don't know if this view was extant at the time of the Magna Carta, only subsequently, that Parliament had essentially unlimited power, even over the King. (perhaps this was not until the Glorious Revolution, or thereabouts). Thus the due process was only really relevant to executive power (which would likely mean procedural restraints), as opposed to legislative power (which would be substantive restraints.)
In contrast, our Constitution imposed constitutional law on the equivalent of Parliament - the federal and state legislatures, - is it necessarily a stretch to think that the concept of due process could apply to legislative judgments as well, and thus permit a substantive restriction component?
I'm just throwing this out. I don't know really how the history plays out here - for example was this a distinction which people drew at the time of the founding, or not)
Also, the common law interpretive role which Marshall brought to Constitutional interpretation may have suggested a substantive "law of the land" role for Courts which incorporated some kind of substantive limits on legislative power.
From: conlawprof-bounces at lists.ucla.edu on behalf of Laurence Claus
Sent: Mon 10/3/2005 4:28 PM
To: Tom Grey; conlawprof at lists.ucla.edu
Subject: Re: Explaining 'what process is due' in 'substantive due process'
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.
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
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'
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.
David E. Bernstein
University of Michigan School of Law
George Mason University School of Law
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