The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process

By Ely, James W., Jr. | Constitutional Commentary, Summer 1999 | Go to article overview

The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process


Ely, James W., Jr., Constitutional Commentary


The view that the due process clauses of the Constitution impose substantive restraints on governmental power has long been a subject of contention. It has become an article of faith in some quarters that due process pertains entirely to matters of procedure. Thus, John Hart Ely maintained: "[W]e apparently need periodic reminding that `substantive due process' is a contradiction in terms--sort of like `green pastel redness.'"(1) Other observers have also derided substantive due process as an "oxymoron."(2) Similarly, Robert H. Bork considers substantive due process to be "a momentous sham" that "has been used countless times since by judges who want to write their personal beliefs into a document."(3)

Of course, substantive due process has not been so easily banished from the constitutional dialogue as these dismissive comments suggest. As historians are well aware, federal and state courts relied on a substantive interpretation of due process in the nineteenth and early twentieth centuries to vindicate economic liberty.(4) Following the political triumph of the New Deal, however, the Supreme Court abandoned meaningful due process review of economic and social legislation.(5) Yet, far from disappearing, substantive due process has been revamped in the late twentieth century to safeguard a variety of non-economic rights.(6) This dichotomy in the type of rights accorded due process protection is highly suspect.(7) It flies in the face of the language of the due process clauses as well as the views of the framers, and raises another set of issues. On what principled basis can one decide which rights are so basic as to warrant due process scrutiny? Some liberal scholars have endeavored to distinguish "bad" judicial solicitude for economic rights from "good" defense of personal liberties.(8) On the other hand, conservatives tend to reject outright most forms of substantive due process; this approach at least has the virtue of consistency. Justice Antonin Scalia, a critic of substantive due process in many policy areas, has sharply questioned the incoherent use of substantive due process to downgrade economic rights:

   The picking and choosing among various rights to be accorded "substantive
   due process" protection is alone enough to arouse suspicion; but the
   categorical and inexplicable exclusion of so-called "economic rights" (even
   though the Due Process Clause explicitly applies to "property")
   unquestionably involved policymaking rather than neutral legal analysis.(9)

Still another group of scholars, spearheaded by Richard A. Epstein and Bernard H. Siegan, has urged a renewed judicial commitment to due process protection of economic rights.(10)

It is evident that thinking about the substantive dimension of the due process requirement has fragmented. All of the participants in the debate, however, have one point in common--they draw upon the sanction of history to support their position. Unfortunately, the grasp of the historical record displayed by many observers is skimpy. Indeed, a large number of the scholars who address the concept of substantive due process seem more concerned with constructing a grand theory of constitutional law than with carefully examining the past.

Consider, for example, the analysis of the due process clauses provided by Bork. According to Bork, Dred Scott v. Sandford marked "the first appearance in American constitutional law of the concept of `substantive due process.'"(11) This account is flawed in two signal respects. First, by linking a substantive reading of due process to the discredited Dred Scott case Bork seeks to taint all subsequent applications of the doctrine. But due process received only passing attention by Chief Justice Roger B. Taney. Indeed, a leading historian has concluded that "Taney's contribution to the development of substantive due process was therefore meager and somewhat obscure."(12) The problems with Dred Scott must be found elsewhere. …

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