who coined "substantive due process"?

Mon Oct 11 04:31:23 PDT 2010

Yes, I think Mark is exactly right.  The divide comes over whether we
admit our traditions evolve.   I think part of the idea is that process
requires a valid law and some laws are so offensive to our traditional
understanding of a valid law that they don't pass this test.  A big
divide is whether our understanding of what is beyond the limits can
evolve as EP clearly did for racial classifications so that some
traditional ones are no longer valid-e.g. school segregation or bans on
interracial marriage.  Since Loving was also a DP case (as is Bolling)
you see the DP evolution at work there too.  And in sexual privacy where
the understanding has evolved a good bit about utterly unacceptable
governmental action punishing , e.g. consensual oral or anal sex between
consenting adults in private.  Scalia and I guess Thomas have a
different explanation for EP and race-the text is utterly clear-though
it was not in the 39th Congress, to the states etc. An advantage of
being supreme is that you can declare these plain textual or historical
matters, but in reality it is a sort of legal fiction akin to the Nazis
making the Japanese honorary Arians. Either an honorary tradition or an
honorary plain text is what is going on.  

It was not plain as text or tradition in the early sixties , e.g.  for
William Rehnquist or Sen. Goldwater or lots of others and of course they
had lots of company in 1868-and not just among the Dems.

Michael Curtis

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, October 11, 2010 12:02 AM
To: conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?

I sometimes suggest that there are actions that a government might wish
to take that are so inconsistent with our traditions as a free society
that no amount of process could be sufficient to constitute the process
which is due.  But I realize that is probably not the best historical
explanation of the meaning of due process.

Mark Scarberry

Pepperdine

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Curtis, Michael K.
Sent: Sun 10/10/2010 7:42 PM
To: Douglas Laycock; conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?

I think Frederick Gedicks [sic?] has an article in the Emory L. J.
finding a long history supporting the idea of a substantive liberty
under Due Process.  Property in 17th century usage seems to include
personal liberty.

Without a written constitution or bill of rights English radicals in the
17th century insisted on substantive rights as among the rights of
Englishmen--free speech-press, right to petition, one could even find
some ideas of privacy --Overton suggesting the Saints would require a
congregational license to lie with one's wife--in an amusing paragraph.
It is quoted in my piece on the Levellers--though a good part of the
complaint is about lack of a warrant.  I am not sure just what one can
make of these claims to free press and petition, etc.--though it seems
to suggest less textually explicit fundamental rights--to put it mildly.
But connected to law of the land or due process?--I don't know. 

The guarantee against taking without compensation under the 14th
Amendment was a due process guarantee--the Chicago RR case--and was
treated in Twining as not based on incorporation.

The law of the land clause in the Mass. constitution (ancestor of DP)
was read , e.g. by Shaw in Mass. to preclude taking private property
without compensation.  This seems clearly substantive--though I suppose
one could see it as a procedure.

Justices Scalia does not seem upset by the Chicago RR Case--or maybe he
is and just complains about Lawrence.  Thomas is still complaining about
Lawrence too--and plans to cure it by limiting due process to procedure
and by putting substantive rights under P or I--which will exclude
sexual privacy as not mentioned in historic documents.

Michael Curtis

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Sunday, October 10, 2010 9:43 PM
To: conlawprof at lists.ucla.edu
Subject: Re: who coined "substantive due process"?

This is one more reason why we need to keep the books on the shelf.
Tomorrow, with hard copy, we can find out what West called it in 1904.
Or 1920, or any other year we have a citation to. The electronic version
is endlessly amendable; the hard copy stays put.

On Sun, 10 Oct 2010 21:27:09 -0400
 "Shapiro, Fred" <fred.shapiro at yale.edu> wrote:
>
>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
>
>
>
>________________________________________
>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,
>
>
>*************************************************
>Paul Finkelman, Ph.D.
>President William McKinley Distinguished Professor of Law
>Albany Law School
>80 New Scotland Avenue
>Albany, NY 12208
>
>518-445-3386 (p)
>518-445-3363 (f)
>
>paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
>www.paulfinkelman.com<http://www.paulfinkelman.com/>
>*************************************************
>
>________________________________
>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.
>>
>>
>>
>>
>>
>>
>>
>>
>>-----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
>>
>>
>>_______________________________________________
>>To post, send message to
Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
>>To subscribe, unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as
private.
>>Anyone can subscribe to the list and read messages that are posted;
people can
>>read the Web archives; and list members can (rightly or wrongly)
forward the
>>messages to others.
>>
>>
>
>Douglas Laycock
>Armistead M. Dobie Professor of Law
>University of Virginia Law School
>580 Massie Road
>Charlottesville, VA  22903
>    434-243-8546
>_______________________________________________
>To post, send message to
Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
>To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.
>
>
>_______________________________________________
>To post, send message to
Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
private.
>Anyone can subscribe to the list and read messages that are posted;
people can
>read the Web archives; and list members can (rightly or wrongly)
forward the
>messages to others.
>
>

Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20101011/b9dc4e29/attachment.htm>