who coined "substantive due process"?

Sun Oct 10 19:58:00 PDT 2010

If a second witness is required, I can support Fred Shapiro's report below (which confirms research I did a few years ago) that the earliest apparent use in print of the exact phrase "substantive due process" appears in the Columbia L.R. in 1928, in an anonymous student note.  See "Constitutionality of Judicial Decisions in Their Substantive Law Aspect under the Due Process Clause," Columbia Law Review 28 (1928): 69.

Matt Franck

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Shapiro, Fred
Sent: Sunday, October 10, 2010 9:27 PM
To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; davidebernstein at aol.com; lederman.marty at gmail.com; dlaycock at virginia.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?

If only Fred Shapiro were on this list...

The earliest I find for the phrase "substantive due process" in a few minutes of searching is in the Columbia Law Review, May 1928.  I believe Doug Laycock's assertion that West used the phrase in headnotes back to 1904 is erroneous; if Westlaw seems to indicate that now, that probably only means that West created or renamed that headnote many decades afterwards and retroactively applied it to the cases Doug mentions.  Assertions based on Google Books hits are probably also erroneous, artifacts of GB's dating problems, which are a lot worse than "a bit confusing." 

Fred Shapiro

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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul <paul.finkelman at albanylaw.edu> [Paul.Finkelman at albanylaw.edu]
Sent: Sunday, October 10, 2010 9:12 PM
To: davidebernstein at aol.com; lederman.marty at gmail.com; dlaycock at virginia.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?

I should add that it was articulated state courts before then,

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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
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518-445-3386 (p)
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paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of davidebernstein at aol.com [davidebernstein at aol.com]
Sent: Sunday, October 10, 2010 8:59 PM
To: lederman.marty at gmail.com; dlaycock at virginia.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: who coined "substantive due process"?

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<mailto: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<mailto:davidebernstein at aol.com> wrote:
>
> 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<mailto:stevesan at umich.edu>>
>To: conlawprof at lists.ucla.edu<mailto: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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