who coined "substantive due process"?

[Jason Mazzone]

I think there is an earlier Supreme Court reference: Justice Moody in Twining v. New Jersey,  211 U.S. 78 (1908), refers to "due process in restraining substantive laws" and contrasts this sort of due process with procedural due process (the case rejects the application in state court of the Fifth Amendment privilege against self-incrimination).


Jason Mazzone
Gerald Baylin Professor of Law
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY 11201
(718) 780-7514
jason.mazzone at brooklaw.edu
www.brooklaw.edu/Jason_Mazzone
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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [dlaycock at virginia.edu]
Sent: Sunday, October 10, 2010 8:40 PM
To: conlawprof at lists.ucla.edu
Subject: Re: who coined "substantive due process"?

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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