who coined "substantive due process"?

Sun Oct 10 17:59:15 PDT 2010

 The concept of SDP clearly existed for a long time, well before Whitney, though the USSC majority did not at that time accept the notion that due process is properly separated into substantive and procedural aspects, but rather insisted that all "arbitrary" government action violated SDP.  But the phrase "substantive due process" was rarely used pre-1930s.  To take another data point, a quick glance of Google Books, which is a bit confusing given how they date certain periodicals, shows few if any uses pre-1930s.

-----Original Message-----
From: Marty Lederman <lederman.marty at gmail.com>
To: Douglas Laycock <dlaycock at virginia.edu>
Cc: conlawprof at lists.ucla.edu
Sent: Sun, Oct 10, 2010 8:51 pm
Subject: Re: who coined "substantive due process"?

In his Whitney concurrence (1927), Brandeis wrote the following, citing Meyer, Pierce and Gitlow:  "Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights."

On Sun, Oct 10, 2010 at 8:40 PM, Douglas Laycock <dlaycock at virginia.edu> wrote:

I don't know either, and I hope that someone else does and will speak up.

In lieu of any actual knowledge, here are the fruits of a few minutes on Westlaw.

The phrase first appears in a Supreme Court opinion in Republic Natural Gas v. Oklahoma, 334 U.S. 62, 90 (1948) (Rutledge, J., dissenting).  He uses it in a matter of fact way, as if everyone already knows what it means.

The first appearance in allfeds is in Ochikubo v. Bonesteel, 60 F. Supp. 916, 923 (S.D. Cal. 1945).

The first appearance in allstates is in a West headnote keyed to the keynote heading "Substantive Due Process" in State v. Langley, 84 P.2d 767 (Wyo. 1938). The court doesn't use the phrase, but recites that due process has both a substantive and a procedural component.  So far, the phrase was coined by an anonymous guy at West.  Probably he found it somewhere else.

The first appearance of that keynote number in the Supreme Court is in Terrace v. Thompson, 263 U.S. 197 (1923). The first appearance in allfeds is in American Coal Mining Co. v. Special Coal and Food Commission, 268 F. 563 (D. Ind. 1920).

But the first appearance in allstates is McKisson v. Wright, 15 Ohio Dec. 105 (Ohio Com. Pl. 1904).

Of course West often has overlapping and duplicative keynote numbers, so there is no guarantee this is the earliest. But it appears that West found the phrase somewhere very early on, but it took it a long time to catch on.

On Sun, 10 Oct 2010 20:07:38 -0400
 davidebernstein at aol.com wrote:
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> I don't know who coined it, but I do remember doing some extensive searching, and finding that the phrase was rarely if ever used before the 1930s.
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>-----Original Message-----
>From: Steve Sanders <stevesan at umich.edu>
>To: conlawprof at lists.ucla.edu
>Sent: Sun, Oct 10, 2010 9:55 pm
>Subject: who coined "substantive due process"?
>
>
>I apologize if this question has been raised before on the list.  Can someone tell me who coined the term "substantive due process," and/or in what case or legal text its first recorded usage occurred?
>
>Many thanks,
>Steve Sanders
>
>
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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
    434-243-8546

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