Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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  • Substantive Due Process

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    The due process language of the Fifth and Fourteenth Amendment traces back to Chapter 39 of the Magna Carta.  Throughout the later middle ages, the due process concept was linked to the king’s arbitrary exercise of power.  The medieval king took executive enforcement action unjustly without judgment as the law or custom of the land required.  Thus, the king, or in modern times the executive, deprived a person of life, liberty, or property without following the legal process required by enacted law.[1]

    This due process concept was reenacted throughout the colonial period.  As a component of an Englishmen’s liberty, the Founding Fathers incorporated the English due process concept into state constitutions and into the federal Bill of Rights.

    In a republican form of government, it is difficult to determine what the founding generation intended for the Due Process Clause, or for that matter the entire Bill of Rights.   The simplest interpretation is that the Clause would restrict executive enforcement action affecting life, liberty, or property outside of prescribed law.  A second possibility is that the Clause provided a common-law guide for judicial process or implementation of a law when the law itself or the Constitution did not otherwise direct the process.  As a quasi-agent of the executive, a judge too can violate a person’s due process rights by depriving a person of life, liberty, or property outside of the law.  The notion that the simple phrase “due process of law” authorized a judicial inquiry into the merits of the legislation itself is beyond belief.  How could one ever apply the Due Process Clause to validly enacted legislation?  When the Framers were concerned with legislative abuses, they put specific restrictions and checks and balances into the Constitution.

    One of the first Supreme Court interpretations of the Fifth Amendment’s Due Process Clause occurred in 1856.  In Murray’s Lessee v. Hoboken Land and Improvement Company, Justice Curtis of the U.S. Supreme Court expanded the concept of due process through a broad interpretation that called for a judicial examination of the legislation’s merits:

    That the warrant now in question is legal process is not denied. It was issued in conformity with an act of Congress.  But is it “due process of law?” The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article [the Due Process Clause] is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.

    Murray’s Lessee v. Hoboken Land and Improvement Company, 59 U.S. (18 How.) 272, 276-77 (1856) (emphasis added).

    By 1856, Curtis was within precedent to say that the legislature cannot pass a law in violation of the Constitution.  But why not just say that: “the legislature is bound by the Constitution.”   Instead, he commingled the simple concept of constitutional supremacy with the principle of due process—a basic requirement for process, as established by law, before execution.  His addition of the inquiry into the legislation’s merits transformed “due process” into “substantive due process.”[2]

    After grafting substance to the Fifth Amendment’s due process restraint, Curtis went further to say that enacted laws will not be “due process of law” if they conflict with, not only the Constitution but also “settled usages and modes of proceeding existing in the common and statute law of England” before and during colonial times.  What the heck is this?   In one careless sweep, the Court expanded the due process restraint to the entire horizon of English and colonial law.  Under this view, the judicial discretion in determining whether congressional legislation is “due process” or not is almost without limit.

    To the contrary, under the historical due process concept, if the United States Congress authorized the process, it is no longer a due process question.  There may be other constitutional problems, but not the Due Process Clause.  The Due Process Clause is not a catchall for the rest of the Constitution.  Nor is the Due Process Clause a blank slate for judges to invent a new constitutional convention or new U.S. Code into the simple phrase “due process of law.”   Judicial inquiry into ancient English precedents and assertions of fundamentality, fairness, or reasonableness have no place in due process questions when the legislature has clearly spoken.

    The Framers were familiar with English precedents and the English Constitution.  They put these principles into the U.S. Constitution.  If the legislature wanted to address the pros and cons of the executive department’s collection of debt or the scope of administrative summary action, it could do so.  If the legislature erred, it could amend the laws.  If the people, from whom the legislature receive their authority, believe that the legislature erred, then they can elect another body.  That’s why the Framers were so insistent on frequent elections and checks and balances.

    Justice Curtis’s judicial footwork on the due process concept is a great example of how the judges of the Supreme Court can rewrite the open-ended provisions of the Bill of Rights to create entirely new amendments binding on the federal government, and now incorporated [link] against the states.

    Curtis went on to find that the legislation under review comported with his version of due process.  For this reason, we surmise that the abuse of the due process concept in Murray’s Lessee has been generally overlooked.

    Chief Justice Taney’s majority opinion in Scott v. Sandford (Dred Scott) receives the credit for the development of “substantive due process.”  Taney ruled:

    The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it, and it cannot, when it enters a Territory of the United States, put off its character and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out, and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved.

    A reference to a few of the provisions of the Constitution will illustrate this proposition.

    For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble and to petition the Government for the redress of grievances.

    Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding.

    These powers, and others in relation to rights of person which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government, and the rights of private property have been guarded with equal care. Thus, the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

    So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted, nor take private property for public use without just compensation.[3]

    Taney in Dred Scott completed Curtis’s work in Murray’s Lessee.  Taney and the majority reached beyond “due process” and evaluated the merits of the legislation itself.  Taney ruled that a provision of the Missouri Compromise Act of 1820 was unconstitutional in part because it was not due process of law.   The Court during this period frequently focused on vested property interests and subsequent legislation’s effect on  those vested rights.

    Murray’s Lessee and Dred Scott took place before the U.S. Civil War.  The Civil War was fought largely over the institution of slavery and that institution ended with the War.

    The Thirteenth Amendment ended slavery, but that amendment said nothing of the civil, political, and social status of newly freed slaves.  Attempting to address this deficiency and establish and protect several key citizenship rights, the 39th Reconstruction Congress passed the Civil Rights Act of 1866 (CRA).  Section One of the CRA provided:

    That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary not withstanding.

    By protecting these citizenship rights, Congress attempted to reverse the legal disabilities of slavery.  In addition to the enumerated citizenship rights, the CRA also protected equal burdens and benefits of the law.

    Congress passed the CRA under the authority of the Thirteenth Amendment.  Many felt that the CRA was beyond that amendment’s enforcement power as it went much farther than enforcing the end of slavery.  The CRA was vetoed, but Congress overrode the veto.  During the debates over the CRA, Congress contemplated an additional reconstruction amendment, which would eventually become the Fourteenth Amendment.  The proposed language ultimately becoming Section One of the Fourteenth Amendment provided constitutional authority for the CRA and for future enforcement legislation.  Sections One and Five provide:

     All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    Both the drafts of the CRA and the amendment were scaled back to reduce the scope of congressional enforcement power.  Congress wanted to protect civil rights but did not want to interfere with the states’ police powers over social and political institutions.

    In fact, the powers of Congress under the Fourteenth Amendment were limited in many respects.  Under the final draft, Congress had remedial powers and states would remain regulators of life, liberty, and property.  Moderates and conservatives rejected earlier versions as granting blanket bans on matters they felt should be left up to the states.

    After the amendment’s ratification, the language worked its way into the courts.  In the congressional debates crafting the amendment, there was no indication that the judiciary would be executing Section One outside of congressional enforcement legislation.[4]  Section Five authorizes Congress to enforce the provisions of the amendment.  Reconstruction was a struggle between Congress and abusive state and local government.  But given the preexisting interpretation of Article IV’s Privileges and Immunities Clause and the sporadic use of due process language in state courts, judicial interception of Section One was inevitable.

    And within a few years, the judiciary took over enforcement of Section One.  From the beginning, the Court split on the meaning of Section One.  This too was inevitable.  Congress drafted the language for future congressional enforcement.  There was not the kind of certainty in “privileges or immunities,” “due process,” or “equal protection” language necessary for judicial execution.   Judges cannot execute this language any more than they can execute “we the people” or “pursuit of happiness.”

    The majority of the Court initially emphasized that it is the province of the legislature to cure the defects in the common law and bring constitutional principles up to date.  Majority opinions were narrow.

    Non-majority opinions expressed an entirely different view of Section One.  For the dissenting justices, the amendment was an entirely new Constitution with a new horizon for political, social, economic, and personal rights.  This kind of radical federalism revolution was most certainly not representative of the 39th Congress’s amending majority.  Rather, this is what was rejected in the debates and drafts.

    Three Supreme Court cases in the 1870s illustrate the divide between the majority and non-majority opinions on the meaning of the amendment.[5]

    Slaughter-House Cases

    In the Slaughter-House Cases, the Louisiana legislature restricted the slaughter of animals to a specific location of the City.[6]  The law also granted the exclusive right of slaughtering to a handful of persons.  Other slaughter-house operators sued claiming that the monopoly was a violation of the Thirteenth and Fourteenth Amendments.

    The aggrieved plaintiffs in the Slaughter-House Cases spuriously attempted to equate the loss of slaughter privileges to the institution of slavery or involuntary servitude.  The plaintiffs advanced that any discrimination “between classes of persons, which deprives the one class of their freedom or their property, or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others” is a violation of the Thirteenth Amendment outlawing slavery.[7]

    The majority of the Court concluded that the ordinance regulating slaughter-house operators was not a violation of either the Thirteenth or Fourteenth Amendment and doubted whether the Fourteenth Amendment would ever extend beyond race relations.  The majority held a narrow interpretation of the amendment’s “privileges or immunities” provision, distinguishing between national and state considerations.

    The dissent, however, grabbed the opportunity to construe things broadly.  The dissent saw the Fourteenth Amendment as an opportunity to intervene on the behalf of property interests.

    In his Slaughter-House Cases dissent, Justice Field supported the application of the Fourteenth Amendment to monopolies.  For Field, monopolies violate Section One by “encroach[ing] upon the liberty of citizens to acquire property and pursue happiness.”  Field equated the granting of special economic privileges to a situation where not all persons are equal before the law.  Field quoted Senator Trumbull as stating: “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.”  Justice Field, either incorporating England’s statute against monopolies or creating his own statute against monopolies through substantive interpretations of Section One, would have found the Louisiana statute in violation of the Fourteenth Amendment because the statute granted special privileges to a handful of citizens.

    Justice Swayne, joining Field in dissent, criticized the legislature for creating a monopoly. Swayne openly declared that the three Reconstruction amendments created a new Magna Carta.

     Life is the gift of God, and the right to preserve it is the most sacred of the rights of man.  Liberty is freedom from all restraints but such as are justly imposed by law.  Beyond that line lies the domain of usurpation and tyranny. . . . “Due process of law” is the application of the law as it exists in the fair and regular course of administrative procedure. “The equal protection of the laws” places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness.[8]

    Justice Swayne’s dissent further stated that “[t]he protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men.”

    While Swayne’s dissent reads well as an abstract philosophy, it certainly lacks precision for a judicial doctrine invalidating state law.  In the passage of the Fourteenth Amendment, Congress rejected the versions “equal protection of life, liberty, and property” and “equal political rights and privileges” in favor of a more limited reach.[9]  Similarly, Congress rejected the initial version of the CRA of 1866 that barred all discrimination in “civil rights and immunities.”  Language securing “equal protection to the pursuit of happiness” would not have been accepted in a provision that many worried would erode all state legislation.

    In a lower court opinion while riding circuit, Justice Bradley, who also heard the case on the Supreme Court and dissented, admitted that his reading of the Fourteenth Amendment was broader than the intended one.

    It is possible that those who framed the article were not themselves aware of the far reaching character of its terms.  They may have had in mind but one particular phase of social and political wrong which they desired to redress.  Yet, if the amendment, as framed and expressed, does in fact bear a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach social evils which were never before prohibited by constitutional enactment.  It is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has in fact been decreed. [10]

    As a whole, the Slaughter-House Cases dissent was dissatisfied with a narrow application of the amendment.  The dissent served as a foothold for the amendment’s “substantive” reinvention.  Future court decisions over the next several years would contain a similar split along the same ideological differences.

    Munn v. Illinois

    In Munn v. Illinois, the majority gave deference to the Illinois provision regulating the maximum rate charged for grain storage.[11]  Chief Justice Waite stated that “[e]very statute is presumed to be constitutional.  The courts ought not to declare one to be unconstitutional, unless it is clearly so.  If there is doubt, the expressed will of the Legislature should be sustained.”  The Munn majority noted: “We know that this is a power which may be abused; but that is no argument against its existence.  For protection against abuses by Legislatures the people must resort to the polls, not to the courts.”  The majority found that Section One did not affect the validity of the Illinois law.

    Justice Field’s dissent in Munn, however, took the opportunity to unravel the limited amendment and construe the terms broadly.[12]  Field decorated the pages of his dissent with emotive filler about how the protection of life is more than “mere animal existence.”  Field exclaimed:

     The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.  The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.  The deprivation not only of life, but of whatever God has given to everyone with life, for its growth and enjoyment, is prohibited by the provision in question, if its efficacy be not frittered away by judicial decision.

    Field discussed his view of what the term “liberty” meant.

     By the term “liberty,” as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison.  It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment.

    Justice Field was determined to consume the legislative function in open-ended, indeterminate constructions of “life,” “liberty,” and the “pursuit of happiness.”    Field stated:

     Unless I have misread the history of the provision now incorporated into all our State Constitutions, and by the [Fifth] and [Fourteenth] Amendments into our Federal Constitution, and have misunderstood the interpretation it has received, it is not thus limited in its scope, and thus impotent for good.  It has a much more extended operation than either court, State or Federal, has given to it.  The provision, it is to be observed, places property under the same protection as life and liberty.  Except by due process of law, no State can deprive any person of either.  The provision has been supposed to secure to every individual the essential conditions for the pursuit of happiness; and for that reason has not been heretofore, and should never be, construed in any narrow or restricted sense.

    Davidson v. New Orleans

    The justices again discussed their views in another 1870s case involving the Due Process Clause and the Fourteenth Amendment.  The issue of due process in Davidson was whether a tax on real estate for draining the city’s swamps deprived citizens of property without due process of law.[13]

    The majority of the Davidson Court was critical of the increased use of the Due Process Clause:

    There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the [Fourteenth] Amendment.  In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State Court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.

    Justice Bradley, concurring, imported a broad, substantive interpretation of the Clause.

     I think, therefore, we are entitled, under the [Fourteenth] Amendment, not only to see that there is some process of law, but “due process of law”. . . and if found to be suitable or admissible in the special case, it will be adjudged to be “due process of law;” but if found to be arbitrary, oppressive and unjust, it may be declared to be not “due process of law.”

    As we see from the brief discussion above, during the period following the amendment’s ratification, Field and fellow justices fused substance to the phrase “due process,” making the phrase interchangeable with their particular view of life, liberty, and the pursuit of happiness.  This reading of due process takes the phrase beyond a guarantee for customary procedure or process of enacted law but instead a judicial doctrine with the potential to consume the states’ regulation of life, liberty, and property.

    The non-majority opinions giving great breadth to the amendment captured the majority in a series of cases involving Chinese immigrants and California wash houses.  For discussion, see substantive equal protection or here[14] for more detail.

    Through the Court’s now established “reasonableness” filter, the broad description of the states’ general police powers contemplated in the Constitution and preserved in the amendment, lost its footing and state legislation became enumerated under the Court’s unwritten substantive due process and equal protection jurisprudence.[15]  The Court bypassed the notion of congressional enforcement and adopted the versions rejected by the 39th Congress’s amending majority.[16]  The opinions of Justice Field and others left the interpretation of the Fourteenth Amendment open to any arbitrary, creative application of the particular justice wielding enforcement.


    [1] In modern times, we are governed by laws and not by unwritten customs.  But this was not necessarily the case at the time of the Magna Carta.

    [2] Murray’s Lessee has been described as a procedural due process case because the character of the substance added to the phrase “due process” was procedural in nature.

    [3] Scott v. Sandford, 60 U.S. 339, 449-50 (1857) (emphasis added).

    [5] This discussion is taken from Justice Stephen Field’s Expansion of the Fourteenth Amendment with some modification and addition.

    [6] Slaughter-House Cases, 83 U.S. 36 (1873).

    [7] This of course is ridiculous.  But this is a good example of aggressive counsel seeking to exploit every ambiguity and thereby forcing several poorly understood or non-justiciable provisions into the courts for litigation, especially on contentious issues such as personal rights and status in the antebellum era.  The controversial nature of the dispute, combined with a lack of understanding, produced a  strained and open construction of the constitutional provision, perhaps with John Locke or perceptions of natural law being offered as the meaning of the language.

    [8] Slaughter-House Cases, 83 U.S. at 127.

    [10] Live-Stock Dealers’ & Butchers’ Ass’n v. Crescent City Live-Stock Landing & Slaughter-House Co., 15 F. Cas. 649, 652 (D. La. 1870) (No. 8408).  Bradley seemed to be engaging in circular reasoning.

    [11] Munn,  94 U.S. 113, 123, 135 (1877).

    [12] Munn, 94 U.S. at 136-54 (Field, J., dissenting).

    [13]  Davidson v. New Orleans, 96 U.S. 97 (1878).

    [16] Barbier v. Connolly, 113 U.S. 27, 30-32 (1885) (producing the substantive Fourteenth Amendment); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (interpreting the Equal Protection Clause to provide an affirmative duty for a judge to establish the “protection of equal laws”).


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