Explaining 'what process is due' in 'substantive due process' (cont.)

Tom Grey tgrey at law.stanford.edu
Tue Oct 4 13:02:24 PDT 2005

I should add that up to about 1830, the tendency was to find the
unconstitutionality of the "take from A to give to B" scenario not in the
due process (or law of the land) clauses, but in an implicit limitation
that confined legislatures to "legislating," and giving that term a
substantive rather than a purely formal reading -- so that an act of a
state legislature decreeing such a transfer would be considered ultra
vires, even if adopted according to the prescribed form. From around 1830
on, the due process / law of the land clauses tended to be cited for this
widely accepted restriction, rather than the purely implicit restriction.
Supposed applications of the principle were regularly objected to, but not
on the grounds that those clauses were confined to matters of procedure.

If I remember right, I ended up thinking that Corwin's classic articles on
this subject got things about right historically, which was one of the
reasons I never pressed on to write the research up for publication. Corwin
was one of the first to stigmatize the Lochner line of decisions (which he
disapproved) as "substantive due process" but he didn't project that
characterization back in his series of historical treatments of the
ante-bellum developments. He wasn't perhaps as clear as he might have been
that the substance/procedure distinction was mostly a post-bellum
development, so maybe I should have written the research up, with more
emphasis on that point.

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