Tracking Due-Process through History

A Critique of Substantive Due Process

Roe v. Wade was and continues to be one of the most contentious legal decisions that has ever been made. Although, the majority of people are aware of it due to the fact that it recognized and held that the right to abortion as a fundamental right. However, the theory that was used to justify implementing that judgment is one without any proper historical or jurisprudential foundation. This theory is known as the theory of substantive due process.

There is a due process clause in the Fifth Amendment of United States Constitution which applies at the federal level and states the following:

No person shall.. be deprived of life, liberty, or property, without due process of law.

The same due process clause is also found in the Fourteenth Amendment of the United States Constitution which applies at the state level:

…nor shall any State deprive any person of life, liberty, or property, without due process of law.

Clearly, these two provisions provide a guarantee, but not of life, liberty, or property. It is possible for someone to be deprived of all of these things, but not without following the appropriate legal procedures or ‘Due Process’. However, here is where the newly minted theory of Substantive Due Process comes into play. The basic premise of this theory is that some rights are of such great significance that no legal procedure, not even legislative means, could ever be enough to revoke them. This of course isn’t true.

A woman's freedom to choose an abortion is part of the "liberty" the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. The ‘Due Process’ clause in the constitution, as the name suggests, only guarantees only that the such inhibition or restraint be procedurally fair and makes no mention of any substantive grounds.

Laws has always been divided into Substance and Procedures. Substantive Due Process is oxymoronic in the sense that how can two distinguishably opposite categorization of law be combined.

The theory of Substantive Due Process as a theory stemmed out of Munn v. Illinois and further developed in the Lochner v. New York and most notoriously Roe v. Wade. The Munn tradition of Substantive due process claim that any unreasonable restrictions on liberty are ipso facto unconstitutional.

According to the Munn tradition, one can apparently translate “without due process of law” in the Fifth and Fourteenth Amendments as “unreasonably” or “arbitrarily”. But we simply cannot do that; The Due Process Clauses merely demand that governments operate legitimately or in a legal manner; they simply do not require that any restrictions placed on liberty to have a basis that is sufficiently significant. "Due process of law" may consequently be used to enforce laws that are disproportionate or otherwise unfair. There are constraints on substantive laws to avoid such unfair legislation. Legal limits on substantive content of the laws arise in the First Amendment or Privileges and Immunities Clause of the Fourteenth Amendment in the United States Constitution.

In this article, I will provide argument that "Due Process" provisions have always been seen and construed as procedural rather than some substantive test of reasonability. I will also provide arguments as why the Munn tradition of equating "Without due process of law" with a requirement of reasonableness is unfounded. The United States constitution has borrowed various principles and ideas from the English Statutes, therefore it is imperative to start from Magna Carta itself. Magna Carta, which is regarded by many as one of the first examples of modern government frameworks featured a Due Process clause.

Magna Carta and Due Process Clause

The Chapter 39 of Magna Carta states the following:

No free man is to be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

A clear and plain interpretation of the above provision clearly provides that is a prohibition on methods or process not on the substance. The aforementioned provision strengthens the significance of the law in a manner fairly natural for those who already control the law's substance. Parliament's legislative power is the authority to inform the king of the laws' substantive content. Simply by being Parliament, that is, by holding legislative authority, Parliament retained control over the actual substance, rationality and reasonability of the legislation itself.

The Reconstruction Era republicans in United States Congress, for their part, exercised substantive control over the reasonableness of state law through the Fourteenth Amendment’s Privileges or Immunities Clause.

Privileges or Immunities Clause of the Fourteenth Amendment states the following:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....

The ability to define the substance of the law, exercised by Parliament in 1215 and United States Congress in 1868 under the Privileges or Immunities Clause, is most importantly complemented by prohibitions against lawless action and inaction. The amount of influence over laws the legislature may have will be totally worthless and will not matter, if an executive branch official is procedurally allowed to act in contravention of the law. As per Chapter 39, this is why the king was only to govern over free men in a lawful manner. The Fifth and Fourteenth Amendments' Due Process Clauses of the United States Constitution were derived from this premise. A related concern was that Parliament would enact laws that the king did not implement. Therefore, Chapter 40 compels the monarch to actively enforce the law by stating the following:

We will not sell, or deny, or delay right or justice to anyone.

This is of course the principle that created the Equal Protection Clause of the Fourteenth Amendment in the United States Constitution.

No state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.

Chapter 39 of the Magna Carta was clarified by the passage of six laws under Edward III in the year 1331. It is quite evident that all six of these laws are concerned with the administrative regularity or the procedural aspect of the king's conduct, rather than their substantive justification.

No man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seized into the King’s hands, against the form of the Magna Carta, and the law of the land.

Magna Carta concerns the form or process of the manner in which the king acted and accused people. Fore judgment without proper judicial inquiry was also prohibited. Another clarification was added in year 1351 during the reign of Edward III.

None shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if any thing be done against the same, it shall be redressed and holden for none.

The use of “process” refers to the way or “manner” by which the king took action. The defendant must be “brought to answer” in accordance with the “course of the law.” All these clauses strictly refers to the procedural aspect further strengthening the argument.

After another three years, in 1354, the clause "due process of law" is used directly, although it is really merely a reorganization of the words that were used in 1351.

No man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in answer by due Process of the Law.

It should come as no surprise that “Due Process of the Law” is utilized in a plain manner as a constraint on the method by which individuals were brought in to answer the accusation. Although later formulations, such as the Fifth Amendment of the United States Constitution, would omit the phrases “being brought in answer” the original context makes it abundantly obvious that “due process” was merely a way of answering to accusations. A method that was exclusively procedural in character.

In the year 1362, another iteration of the Magna Carta with the stipulation that it must be

Put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.

The lawless “royal special command” was the concern for this statute. The statute requires those to be delivered, which are so taken by the royal special command as against the form of the Charter.

In the year 1363, a statute passed paraphrased Magna Carta as mandating,

that no man be taken or imprisoned, or put out of his freehold, without due process of the law, nevertheless divers persons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the realm put in great damages, contrary to the form of the same statute.

It then required that

All they that make such suggestions be sent, with their suggestions, to the chancellor or treasurer, and they and ever of them... endure the same pain that the other should have had... and that then process of the law be made against them: without being taken or imprisoned, against the form of the same charter.

There is a clear connection drawn between the Magna Carta and the concept of “due process of the law,” as well as a continued focus on “form”.

The sixth and last Magna Carta clarification by Edward III contains a statutory complaint from 1368 regarding the

mischiefs and damages done to divers of his commons by false accusers, which oftentimes have made their accusations more for revenge and singular benefit, than for the profit of the King, or of his people, which accused persons, some have been taken, and sometime caused to come before the King’s council by writ, and otherwise upon grievous pain against the law.

The statute essentially required,

For the good governance of the commons, that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original.

Again, we see a preoccupation with “good governance” and the methods by which individuals are “called to account.” This lends more support to the contention that due process refers to a method or procedure for responding to accusations.

The Magna Carta and the laws of Edward III were brought up again in the Petition of Right that Parliament filed against Charles I in 1628. In the Petition of Right, The Section 3 and 4 were identical and were repeated from the Chapter 39 of Magna Carta and the Due-Process Statute of 1354.

Section 3 of the Petition to Right states the following,

No freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.

Section 4 of the Petition to Right states the following,

No man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law.

The “royal special command” and the absence of a specific “cause” were the targets of parliamentary attack in 1362 and 1368 respectively. In the Petition to Right, the demand was the opportunity to “make answer” as specified in the Section 5 of the Petition to Right.

Against the tenor of the said statutes . . . divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty’s special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.

Last but not least, the Habeas Corpus Act of 1679 established very specific standards and mandated that,

No person or persons which shall be delivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned or committed for the same offence by any person or persons whatsoever, other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause.

To put a nail in the coffin, The elaboration of Habeas Corpus is needed. The Habeas Corpus act utilizes its own “legal order and process” clause which is of course grammatically synonymous with “due Process of law” clause in the Fourteenth Amendment of the United States Constitution. The Act utilizes the “legal order and process” clause as requirement of proper jurisdiction. Again, the rule of law, which can be defined as the institutional structure of law-speaking authority or jurisdiction has always been a Parliamentary concern. I have substantiated my claim that “due Process” clause in the Fourteenth Amendment has historically been viewed as a plainly procedural aspect not some sort of reasonability test.

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