Green 2018 Twelve Problems with Substantive Due Process

Note: "reasonable" is Sandefur's basis for substantive due process as detailed in In Defense of Substantive Due Process. regularity, generality, fairness, rationality, and public-orientation.
This essay is another One Hundred Authors Against Einstein

2023-09-13: Green Twelve Problems with Substantive Due Process 2018

I present twelve quick problems for the idea that “without due process of law” in the Fifth or Fourteenth Amendments can be tolerably paraphrased as “unreasonably”.
I structure my Article normatively, as twelve attacks on the doctrine stemming from Munn v. Illinois and exemplified most notoriously in Lochner v. New York and Roe v. Wade that any unreasonable restrictions on liberty are ipso facto unconstitutional. (399)
... our Due Process Clauses only require that governments act lawfully, not that restraints on liberty have a sufficiently weighty justification. Disproportionate and otherwise deeply unjust laws can therefore be enforced with “due process of law.” Limits on the substantive content of law appear elsewhere, such as in the First Amendment or the Fourteenth Amendment’s Privileges or Immunities Clause. (399) My take on Dred Scott v. Sandford thus distinguishes sharply between the Court’s holding on due process (which the Court used to declare the Missouri Compromise unconstitutional) and its holding on federal citizenship (which the Court denied to African Americans). (400) I see the Court’s due-process holding as making a simple mistake: assuming that moving to free territories with slaves is not itself a violation of the law. (400)
Dred Scott inferred the lack of African-American citizenship from their lack of equal citizenship, which it inferred from degrading practices like marital segregation. (400)
With the Fourteenth Amendment guaranteeing freedmen the rights of American citizenship.... Citizenship entails equal citizenship .... (400)
Reliance on substantive due process is therefore a mere surface flaw in Roe that could be remedied by switching to the Privileges or Immunities Clause. (400)
My twelve problems with substantive due process consist of three quartets: four English problems, four antebellum American, and four from Reconstruction. (400)

1. The Texts of the Predecessor English Statutes Concern Lawfulness, not Substantive Reasonableness
   • Chapter 39 of Magna Carta says, “No free man is to be arrested .... It is a prohibition on the methods by which the king was to act. (401)
   • Parliament’s legislative power is the power to tell the king the substantive content of the laws. Parliament maintained control over the substantive content and reasonableness of the law itself simply by being Parliament-—that is, by possessing legislative power. (401) [bills of attainder. special legislation. non-precedential rulings.]
   • The power to determine the content of the law--exercised by ... Congress in 1868, under the Privileges or Immunities Clause—-is, however, naturally supplemented by bans on lawless action or inaction. (401) [Privileges and/or Immunities appears in Art IV Sect 2 and 14th Amend.] [source of the bans?]
   • argumentation by assertion.
   • Chapter 39 rewritten 1331, 1351, 1354, 1362, 1363, 1368 why so many rewrites if the text was effective in compelling the king to act lawfully?
   • Assume all statements regarding English Law are correct. Suggests, but does not demostrate, a possible meaning of constitutional language.
2. In Context, Predecessor English Statutes Obviously did not Grant the King Parliament-Trumping Reasonableness Review
   • The contexts of these English statutes ... were parliamentary restrictions on royal power, not expansions. The Parliaments ... were not granting [various kings] the power to review Parliament’s own earlier statutes for substantive reasonableness. (405) [relevance?]
   • If a principle which the American constitutions now put above all three branches is genuinely the same principle as the one which Parliament used to put itself over the king, that principle must make sense in its original context, not just the American one. (405) [emphasis added]
   • Principles of due process must therefore make sense both as a demand from Parliament to the king, as they functioned originally in England, and as a demand from the people to all three branches of government, as they function here. (405) [If. Asserts its the same principle. Does not demonstrate that it is the same principle.]
   • argumentation by assertion.
3. The Absence of Due Process in Bonham’s Case
   • ... in which Edward Coke ... held that statutes contrary to reason were void. (406)
   • If “by the law of the land” or “by due process of law” meant “reasonably” in a way that would invite the king’s agents to assess the reasonableness of acts of Parliament, it would be bizarre for Coke not to mention these provisions in the case. (406)
   • repetition of previous item
4. Blackstone says Disproportionate Sentences are Consistent with Magna Carta and with the 1331 and 1354 Statutes
   • The “highest necessity” for the destruction of life and limb—-i.e., substantive reasonableness or proportionality—-is usually present. (407) [asserts “highest necessity” ==. needs to be demostrated. “highest necessity” could be preventing the violent interruption of duly constituted transfer of power from one chief executive to his successor.]
   • argumentation by assertion.
5. Sixth Amendment “Process” refers to Fact-Finding Writs
   • Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor.” (407)
   • [Keith Jarow 1975] ... the word “process” ... referred to those writs which summoned parties to appear in court, as well as those by which execution of judgments was carried out. (406)
   • Courts considering constitutional questions are duty-bound not to ignore material considerations—not to decide the Constitution’s requirements based on an incomplete presentation of the material facts. (408) [Supreme Court, which decides the Constitution’s requirements always(?) does not consider issues of fact, only issues of law. Errors of fact go uncorrected.]
   • 6th concerns criminal prosecutions exclusively. "Process" in the context of criminal prosecutions may/should(?) have a narrower meaning than the general context.
   • Due Process now limited to supeona and court orders. Does not match previous statement: "process ... a demand from Parliament to the king"
6. Antebellum Substantive Due Process Examples Concern Only Anti-retroactivity Principles, not Reasonableness Review
   • Matt Franck has recently canvassed twenty-one of the most-frequently-cited antebellum examples of substantive due process and shown ... that “none invalidated a statute of general application and prospective effect, regulating future behavior or conduct, which is the central characteristic of the modern substantive due process rulings that gave the doctrine its name.” (409) [absence of action does not demostrate absence of authority to act.]
7. Republicans Morally Condemned Slavery but Agreed that Slaves could be “Lawfully Claimed” and “Lawfully Reclaimed”
   • The Northwest Ordinance of 1787, Missouri Compromise of 1820, and Wilmot Proviso of 1847 .... all declare territories free on the condition that slaves “lawfully claimed” elsewhere—lawfully claimed under, moreover, racially-discriminatory laws—may still be “lawfully reclaimed.” (411)
   • To be lawfully claimed or reclaimed as a slave was obviously not to be morally or justly or reasonably claimed. (411)
   • two meanings to "lawfully": one, in accordance with statutes passed through the stipulated process; another, to be in accordance with substantive due process. See Sandefur's definition of lawful: ' "For a government’s actions to qualify as lawful, they must be issued according to formal, procedural rules of promulgation, and include such substantive elements as regularity, generality, and fairness [, rationality, and public-orientation]." '
   • Compelled to include such language due to Art IV Sect 2 Clause 2 "... Person held to Service or Labour ... shall be delivered up on Claim ...."
8. Lincoln’s Response to Dred Scott Makes the Classic Anti-Substantive-Due-Process Inference from the Fifth Amendment
   • Taney, Lincoln and Nicholas all agreed that due process was a right to have one’s rights properly adjudicated according to pre-existing law. (413)
   • [properly adjudicated is an element of due process. Need to demonstrate that proper adjudication is exhaustive.]
9. “Duly Convicted” in the Thirteenth Amendment Allows Disproportionate Sentences
   • The Thirteenth Amendment’s exception allows slavery or involuntary servitude only for those “duly convicted” of crime. (413)
   • In addition to overlapping “due process” linguistically, several observers during Reconstruction treated the two phrases as synonymous; no one distinguished them. (413)
   • ... several leading Republicans—John Farnsworth, Thaddeus Stevens, William Higby, Henry Deming, and Burton Cook—urged without contradiction that the Thirteenth Amendment allowed slavery to be imposed even for minor crimes, .... (413)
   • These Republicans made clear that to be “duly convicted" was not necessarily to be convicted of a sufficiently-serious crime—i.e., to be deprived of liberty reasonably. (414)
   • These five individuals do not determine the meaning of an amendment passed by Congress and ratified by three-quarters of the states.
10. “Law” in the Privileges or Immunities Clause Entails neither Justice nor Reasonableness
    • “Law” in the Privileges or Immunities Clause ... “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” (414)
    • The Privileges or Immunities Clause, however, treats “law” not as a requirement, but as the object of its prohibition. (414)
    • If an unjust law were really a full-fledged contradiction in terms, then unjust state actions would be exempt from the operation of the Clause. But obviously they were not. (414)
    • "law" is commonly used to refer to a statute. Read "enforce any statute" and "unjust statute"
    • Compelled to include such language due to Art IV Sect 2 Clause 2 "... Person held to Service or Labour ... shall be delivered up on Claim ...."
11. Reverdy Johnson Thought the Privileges or Immunities Clause, not the Due Process Clause, was Dangerously Open-Ended
    • The Habeas Corpus Act, introducing federal habeas review of state-court judgments, was passed unanimously in February 1867 .... This consensus only makes sense given an understanding of due process as guaranteeing lawfulness in the states, rather than restricting the substantive content of state law. (415) [guaranteeing (sufficient) or an essential part of lawfulness (necessary, not complete)]
    • The best-informed Republicans and Democrats alike, then, associated a ban on racial discrimination in occupational freedom with the Privileges or Immunities Clause alone. (416) [to demonstrate alone, one must show that there is not a single conflicting statement.]
    • the opinion of one person, no matter how well informed in legal matters, does not determine the meaning of amendments to the Constitution. Suggestive of meaning, not determinative.
12. Due Process Covers All Persons, but Freedmen Received the Special Privileges of Citizens
    • ... the Due Process Clause as a general limit on unreasonable discriminatory classifications: it applies to persons, not just citizens. (416)
    • But non-citizens were subject to arbitrary racial discrimination from the Founding up to and including Reconstruction (and beyond). (417) [female citizens subject to discrimination]]
    • privileges and immunities of citizens .... person...due process of law .... person...equal protection of the laws.
    • The Due Process Clause cannot serve as a ban on unreasonable, protectionist, rent-seeking legislation, because it equally covers those disadvantaged by traditional protectionism that aims to put America—and Americans—first. (417) [coherence is not a requirement of duly enacted statutes.]
    • If citizens may receive special privileges relative to non-citizens, then only the citizens-limited Privileges or Immunities Clause can serve as a generic ban on unreasonable discrimination .... (417) [claims that it is discriminatory to deny privileges of citizenship to aliens. citizens and aliens are not similarly-situated. See below.]
    • But if the Court is agnostic on whether the fetus has rights— the very issue it says resolves the issue in ignoring Thomson-style arguments— then it should be agnostic about the Fourteenth Amendment’s requirements. (420) [why does agnosticism on one matter require the same on another matter?]
    • In the midst of this section, Green transitions to discussing abortion.