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

Nelson Lund nlund at gmu.edu
Tue Oct 4 08:16:05 PDT 2005


Laurence Claus’ post is an elegant reminder of a self-evident truth: the 
assumption by lots of judges that the Constitution gave them sweeping 
powers to invalidate laws that they don’t like is a poor substitute for 
actual evidence that the Constitution means something different from 
what it says.

Nelson Lund


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                                                                                                           
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>                      10/01/2005 05:57 PM                                                                                                   
>                                                                                                                                            
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>
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>
>
>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
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