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

Tom Grey tgrey at law.stanford.edu
Tue Oct 4 10:14:43 PDT 2005


Responding to Nelson Lund: My summary was based on research I did all too
many years ago (results never published) that involved reading all the
state decisions I could find before 1868 that we would call "substantive
due process" invalidations of state laws. There were lots of them. There
were also dissents, and negative commentary, which often criticized courts
for illegimately substituting judicial for legislative judgment. What was
striking was that there was no criticism making use of the
substance/procedure terminology, and (decisively, I think) almost none that
could be construed as aiming at this point in substance. (I recall one
Rhode Island case from the 1850s that I thought really anticipated the
substance/ procedure distinction, though it didn't use the terminology.)
So, while it's natural for us to read "without due process of law" as
meaning "without traditional (or fair) adjudicative procedures," that
apparently wasn't what the constitutional language meant, as originally
understood.

Of course a present-day "plain meaning" reading of "law of the land" would
go contrary to Laurence Claus' (historically very plausible) construction
of "per legem terrae" as it was used in Magna Carta.

The pure "adjudicative procedure" reading of due process would legitimize
the scenario where the state legislature passes a law conveying Blackacre
from Lund to Bernstein, and a civil trial is held at which the identities
of Blackacre, Lund, and Bernstein are properly established, at which point
a judgment is entered transferring title to Bernstein. This was the shared
paradigm case for denial of due process / law of the land in the minds of
antebellum American lawyers. In our terms, it's a middle case between
substantive and procedural due process -- a separation of powers violation.
The point is that the ante-bellum lawyers didn't use, or think with, our
dichotomy of substantive law and procedure.

Thomas C. Grey
Sweitzer Professor of Law
Stanford Law School
tgrey at law.stanford.edu


                                                                                                                                            
                      Nelson Lund                                                                                                           
                      <nlund at gmu.edu>               To:                                                                                     
                      Sent by:                      cc:       conlawprof at lists.ucla.edu                                                     
                      conlawprof-bounces at lis        Subject:  Re: Explaining 'what process is due' in 'substantive due process'             
                      ts.ucla.edu                                                                                                           
                                                                                                                                            
                                                                                                                                            
                      10/04/2005 08:16 AM                                                                                                   
                                                                                                                                            
                                                                                                                                            




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

>

>

>                      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
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