Academic journal article The Yale Law Journal

The One and Only Substantive Due Process Clause

Academic journal article The Yale Law Journal

The One and Only Substantive Due Process Clause

Article excerpt

ARTICLE CONTENTS

INTRODUCTION

I.   "SUBSTANTIVE" AND "PROCEDURAL" DUE PROCESS: TERMINOLOGY
     AND TAXONOMY
     A. Terminology: "Substance" and "Procedure"
     B. Taxonomy: Categorizing Interpretations of the Due Process
        Clauses and Similar Provisions
        1. Procedural Due Process
           a. "Positivist" Due Process
           b. "Judicial Intervention" Due Process
           c. "Fair Procedures" Due Process
           d. "Common Law Procedures" Due Process
        2. Substantive Due Process
           a. "Vested Rights" Due Process
           b. "General Law" Due Process
           c. "Police Powers" Due Process
           d. "Fundamental Rights" Due Process

II.  "DUE PROCESS OF LAW" IN 1791
     A. The English Background: Magna Carta, Coke, and Blackstone
     B. Pre-Ratification American Background
        1. Colonial-Era Declarations of Rights
        2. Early State Constitutions and Statutes
     C. The Legislative History of the Fifth Amendment
     D. Post-Ratification Interpretive Evidence
        1. Evidence from Early Judicial Decisions
        2. Evidence from Early Treatises
     E. Conclusions

III. "DUE PROCESS OF LAW" IN 1868
     A. Pre-Ratification Interpretive Evidence
        1. Evidence from Pre-Ratification Judicial Decisions
        2. Evidence from Antebellum Political Arguments Concerning
           Slavery
     B. The Legislative History of the Fourteenth Amendment
     C. Post-Ratification Interpretive Evidence
        1. Evidence from Post-Fourteenth Amendment Supreme Court
           Decisions
        2. Evidence from Early Post-Fourteenth Amendment Constitutional
           Treatises
     D. Conclusions

IV.  THE FIFTH AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSES AND
     THE PROBLEM OF CONSTITUTIONAL SYNTHESIS

CONCLUSION

INTRODUCTION

Critics of substantive due process have condemned the doctrine as, among other things, a "contradiction in terms," (1) an "oxymoron," (2) a "momentous sham," (3) a "made-up, atextual invention," (4) and the "most anticonstitutional branch of constitutional law." (5) Substantive due process has been criticized both as textually implausible (6) and as contrary to basic principles of democratic self-government. (7) But neither of these criticisms, standing alone, is sufficient to condemn the doctrine as constitutionally illegitimate. After all, even the most ardent textualists acknowledge that constitutional provisions may sometimes reflect specialized "term-of-art" meanings that are not readily apparent from the meanings of the individual words comprised therein. (8) And if a hypothetical constitutional provision were to embody language that was widely understood by the ratifying public to confer upon judges unfettered discretion to recognize and enforce unenumerated rights, the exercise of such discretion could hardly be condemned as constitutionally illegitimate. (9)

It is therefore unsurprising that, from an early date, criticism of substantive due process has focused principally on the contention that the doctrine is inconsistent with the original meaning of the Due Process Clauses of the Fifth and Fourteenth Amendments. (10) Beginning in the early twentieth century, legal scholars seeking to undermine support for the Supreme Court's then-prevailing Lochner-era substantive due process decisions (11) constructed a convincing historical narrative designed to demonstrate that the substantive conception of due process rights reflected in those decisions was a recent judicial innovation unsupported by the text or pre-ratification history of the Due Process Clauses themselves. (12) This historical critique proved remarkably effective--so much so that by 1985, even the United States Supreme Court, in a unanimous opinion, was prepared to concede that its expanding body of post-Lochner substantive due process decisions was "suggested neither by [the] language nor by [the] preconstitutional history" of the Due Process Clauses themselves and was "nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. …

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