Sandefur 2012 In Defense of Substantive Due Process, or the Promise of Lawful Rule

Substantive Due Process is the requirement that lawful statutes must be based upon generality, regularity, fairness, rationality, and public‐orientation, as well as being duly enacted.
Sandefur seeks to demonstrate the necessity of Substantive Due Process by showing what would be possible in its absence:

• arbitrary rule is rule according to no fixed standard (295) [rationality]
• to suit the whim or self‐interest of the ruling party (306) [fairness]
• special legislation (309) [generality, regularity, public‐orientation]
• sham trial with a predetermined verdict (329) [fairness]
• convictions in which the evidentiary premises are false, rendering the conviction substantively unlawful. (330) [fairness]
• courts were to decide all disputes by a flip of the coin. (322) [fairness]
• to lay hands upon the property of the citizen, and to bestow it upon favored individuals for private ends (324) [fairness, public‐orientation]

Does this article require (too strong? implicate) that juries are empowered to both findings of fact and findings of law (to discard laws unlawful when applied to the instant case)?

• Law, and therefore what is 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]." (314) A lynch mob is no less a lynch mob if it adopts formal rituals, such as holding a sham trial with a predetermined verdict. On the other hand, a hearing that gives real effect to the substantive elements of lawfulness is still a valid procedure even if it fails to abide by some typical procedural formality. (329)
• Courts in deciding upon the constitutionality of statutes must look beyond the statute to the principles upon which the legislation is purported to be based.
• ... the judiciary cannot avoid such arguments if it is to enforce the constitutional promise that government treat individuals in a lawful, and not an arbitrary, manner. We must give up any search for a morally neutral or wholly proce‐ dural approach to the Due Process Clause. (326)

2023-09-13: Sandefur In Defense of Substantive Due Process, or the Promise of Lawful Rule (2012)

• Perhaps no doctrine in constitutional law has produced so much calumny as the theory commonly known as substantive due process. (284)
• ... there remains a need for a conceptual explanation, and this Article seeks to fulfill that need. (285)
• The due process of law guarantee is an effort—-one with deep roots in the history of western civilization—-to reduce the power of the state to a comprehensible, rational, and principled order, and to ensure that citizens are not deprived of life, liberty, or property except for good reason. (285)
• I. Due Process of Law as a Promise of Lawful Rule
• The term “substantive due process” is a recent innovation. (286) [first used 1935]
• To refer to the Clause as the “Due Process Clause” implicitly suggests that it guarantees the citizen only the right to an unspecified procedure or ritual, rather than to a catalogue of substantive protections. (286)
• A. Law as the Opposite of Arbitrariness
• ... Magna Carta’s “law of the land” clause guaranteed that when the crown acted against an individual, it would do so in accordance with certain general, regular, traditionally accepted principles: ...
• The law of the land or due process of law provisions guarantee not just any process but a process of law. This obliges the government to act in a lawful manner. (290) [law of land clauses in Massechusettes, New Hampshire, Maryland, Virginia constitutions, among others.]
• ... Magna Carta’s language .... means there must be some basis for distinguishing between valid laws and invalid ones, which means there must be exogenous standards by which to differentiate the ruler’s lawful acts from unlawful ones. ... include generality, regularity, fairness, rationality, and public‐orientation. (290) [emphasis added]
• Goal‐oriented acts can be tested for their rationality, through means‐end analysis, and an arbitrary action is not a means to any end. (292)
• Modern legal theories tend to see the lawfulness of a ruler’s pronouncement as a function of its sanction or compulsion, whereas the law of the land principle implies that lawfulness is a function of an action’s underlying logic or correspondence to principle. (292)
• B. Means‐Ends Rationality and the Constitution
• ... my point here is less grand than his: It is that a governmental act cannot be weighed as the Due Process Clause requires us to weigh it without some assessment of the fitness of the means chosen to the ends pursued. Nor can it be made without analyzing the end pursued to ensure that it is genuine and not illusory or pretextual. (294)
• There are two categorical cases of lawless government action: rule according to the ruler’s mere whim and rule according to the ruler’s mere self‐interest. (295)
• C. Arbitrariness and Government by Whim
• Arbitrary rule is rule according to no fixed standard, rule for no reason at all. (295)
• D. Rule by the Ruler’s Self‐Interest as an Illusory Principle
• A society ruled by the self‐interest of the ruler is still basically ipse dixit rule, only with a change in emphasis: Whereas the whimsical ruler asserts power “because I say so,” the ruler who governs for his own self‐interest is governing “because I say so.” (299)
• ... the promise that government will treat its citizens in a lawful manner is not merely a promise that government will abide by formal rules; it is a broader promise that government’s coercive powers will be used for genuine public reasons and not simply to suit the whim or self‐interest of the ruling party. Form and substance overlap in this most essential element of due process of law. (306)
• E. Generality, Regularity, and Fairness
• Lawfulness requires that the state’s coercive powers be used in accordance with general and regular principles that advance the public good rather than the ruler’s private interest and that accord basic fairness and equality to the people subject to those powers. Whatever else a regime might be without these elements, it cannot be called a lawful regime. (307)
• Special legislation is a violation of the lawfulness principle, and therefore of the due process guarantee, because it represents government based on specific commands for particular instances, rather than pursuant to comprehensible reasons. (309)
• Generality and regularity are connected in a profound way to the principle of equal treatment. James Madison explained that connection in one of his most philosophically astute essays: “[T]hat alone is a just government, which impartially secures to every man, whatever is his own.” (310)
• The relationship between the regularity, generality, and equal treatment elements within the concept of lawful rule is probably most familiar from Bolling v. Sharpe in which the Supreme Court held that the Due Process Clause included an equal protection component. (310)
• ... for a government act to qualify as law, it must be consistent with the sort of basic equal treatment that is required by the principles of generality and regularity, unless some good reason exists for deviating from that norm. (311) [To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. United States v. Armstrong :: 517 U.S. 456 (1996) Limit on prosecutorial discretion]
• F. The Redundancy Argument
• Critics of substantive due process such as Robert Bork and John Hart Ely have characterized Bolling as “gibberish,” because interpreting the Due Process Clause to require equal treatment would make it duplicative of the Equal Protection Clause, in violation of rules of interpretation. (312)
• Indeed, there are separate, specific constitutional provisions that protect such archetypical due process rights as the right to a jury, or to a trial, or freedom from bills of attainder. The redundancy argument would require one to conclude that the Due Process Clause does not itself protect these basic elements of due process of law, which is an inadmissible conclusion. (313)
• A better reading of the Clause would see it as a partial reiteration of the more basic constitutional pledge to ensure lawful, regular, non‐arbitrary treatment of citizens. (313)
• More precisely worded clauses might prohibit specific abuses, but the Due Process Clause prohibits activities of the whole class of arbitrary or lawless action. (313)
• Nor should it come as a surprise that the due process of law requirement works as a general background prohibition against unjustified state action, with more precise constitutional provisions standing out in relief to provide additional protection against the specific abuses experienced throughout history. (313)
• II. The Logic of Substantive Due Process of Law
• In short, a lawful act is one the ruler is authorized to adopt or enforce. (314)
• All ultra vires action is a violation of the due process of law guarantee, and the Constitution determines, both explicitly and implicitly, what sorts of action are ultra vires. (314)
• A. Procedural and Substantive Lawlessness
• 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]. (314)
• It is over these implicit limits that the major battles over due process have been waged in American legal history. (315)
• For example, in Clinton v. City of New York, the Supreme Court found that the Constitution did not allow Congress to give the president a line‐item veto power. (315)
• The prohibition on arbitrariness forbids the lawmaker from doing certain things, not only where the Constitution explicitly forbids it but also where the logic of constitutionalism inherently bars such acts. (316)
• Government is an agent, “hired” pursuant to the constitutional “contract,” for the purpose of protecting individual rights. (See The Federalist No. 78) (316)
• Thus the authors of a constitution must create a government both strong enough to protect the people against harm and balanced in such a way as to resist the efforts of the rulers to use the government’s power to exploit, plunder, or oppress in their own private interest. (318)
• There are three principal ways to prevent this abuse, and the Constitution employs all three. (318)
  • First, it should be democratic, which entails not only dependence on the people but also “auxiliary precautions,” such as balancing interest groups against each other to prevent their uniting, and separating states from the federal government for the same reason. (319)
  • Second, the Bill of Rights takes certain matters out of government hands entirely. (319)
  • Third, the Constitution creates, within limits, “a will in the community independent of the majority,” which will lack the self‐interested motives of the majority. The federal judiciary is an at‐ tempt to harness the benefits of this independence while avoiding its liabilities. (319)
• The Constitution “is in fact, and must be, regarded by the judges as a fundamental law,” and where the legislature exceeds that fundamental law, courts must enforce the Constitution and not the statute, because the Constitution is “the intention of the people,” while a statute is only “the intention of their agents.” (320)
• B. How Implicit Limits Apply in Due Process Cases
• ... whether the Constitution is itself a goal‐oriented device, the purposes of which will dictate the content of those implicit substantive limits. (320)
• The legal boundaries that the Constitution creates around the legislature exist to promote the purposes identified, among other places, in the Preamble. The Preamble, to name only one source, declares one of the purposes for which the Constitution exists: to preserve the blessings of liberty. The legal boundaries that the Constitution creates around the legislature exist to promote the purposes identified, among other places, in the Preamble. (322)
• If a court is called upon to determine whether a challenged statute is lawful or arbitrary, then the court must be prepared to look behind the statute’s form and examine its substance. It must determine whether the principle the ruler purports to be advancing in its legislation is genuine or only illusory. This means that it is not in principle possible for courts to avoid addressing the question of whether a challenged law advances a legitimate government interest—-or deciding which government interests are or are not “legitimate.” (323)
• To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law .... This is not legislation. It is a decree under legislative forms. Loan Association v. Topeka (1875) (324)
• We must give up any search for a morally neutral or wholly proce‐ dural approach to the Due Process Clause. (326)
• C. Incorporation as a Due Process Requirement
• [incorporation cases] ... require that certain basic principles of lawfulness—-principles that distinguish between lawful and arbitrary rule and which are found articulated in the Bill of Rights—are required of states under the Due Process Clause. (326)
• The Chicago, B. & Q. Railroad (1897) decision relies solely on the sort of arbitrariness versus lawfulness analysis explained here and summarized by the Court in 1908: “some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.” (327)
• III. Problems with a Procedure‐Only Approach to Due Process Law
• A. Procedural Lawfulness Makes Sense Only Within a Broader Normative Commitment to Substantive Lawfulness
• A lynch mob is no less a lynch mob if it adopts formal rituals, such as holding a sham trial with a predetermined verdict. On the other hand, a hearing that gives real effect to the substantive elements of lawfulness is still a valid procedure even if it fails to abide by some typical procedural formality. (329)
• A trial, for example, might be characterized as a procedural right, yet a trial is composed of certain substantive rights—the right to cross‐examine witnesses, the right to be represented by an attorney, the right not to be compelled to testify against oneself. Taking another step back, the right to a trial can be seen as a substantive component of the broader procedural right not to be dealt with arbitrarily. (329)
• This also explains the role of the word “due” in the Due Process Clause. The Constitution does not require just any process of law but due process of law-—and this term is echoed in the Thirteenth Amendment, which holds that no person shall be subjected to involuntary servitude except if he has been “duly convicted” of a crime-—not merely convicted but duly convicted. If this term means anything, it means that not all convictions are due, and those convictions that are not due are ones that are arbitrary, baseless, or flawed in some deeper sense. (330)
• One might categorize improper convictions into those that are invalid and those that are false-—that is, those that are logically flawed and thus procedurally unlawful, and those that, though logically valid, fail because the evidentiary premises are false, rendering the conviction substantively unlawful. Either would make the conviction “undue” and thus a failure of the commitment to treat citizens lawfully. A procedure‐only approach to due process cannot account for the meaning of the word “due.” (330)
• Second, a purely process‐oriented approach to law cannot account for the processes themselves; it can only accept them as arbitrary givens. A process‐based approach holds that a law is justified simply because it is promulgated according to rules of promulgation. But rules of promulgation are themselves laws, so what justifies them? (331)
• B. Formally Evenhanded Rules Can Still Be Substantively Arbitrary
• A formally evenhanded rule can still be arbitrary in substance-—for example, if courts were to decide all disputes by a flip of the coin. (322)
• In defending its anti‐miscegenation statute in Loving v. Virginia, for example, the state argued that the law actually treated both races evenhandedly because it deprived whites of the capacity to marry members of other races just as it deprived blacks of that right. [The Court] refused to rely on a purely formal approach and instead focused on “the central meaning of the Equal Protection Clause”—-that is, on the substantive normative commitment to eliminate “measures which restrict the rights of citizens on account of race.” (333)
• C. Can Absolutely Any Order Be a Lawful Order?
• As we have observed, what makes “Judge Lynch” a violation of the lawfulness requirement is not only that it lacks the formalities of law, but that it is arbitrary in both procedural and substantive ways, and thus violates the “rule of law.” (337)
• D. Substantive Due Process and Democracy
• Probably the most persistent criticism of the idea that the Constitution incorporates certain implicit substantive limits on the lawmaker’s authority is that it is undemocratic for courts to engage such questions. Yet the Constitution does not create a democratic order; it creates a lawful order, and the two are not necessarily identical. (342) [emphasis added]
• The proposition that government exists for the public good and not for the ruler’s self‐interest is complicated by the operations of a democracy, in which legitimate rule for the benefit of the governed can easily be confused with the improper rule of the majority for its own self‐interest. (342)
• ... because the majority can act as the judge in its own case. For a democracy to be a lawful order, and not mere mob‐rule, the government would have to keep constantly in mind this difference between rule for the self‐interest of the legislative majority and rule for the true public interest. That distinction would operate in the government’s actions through the lawfulness requirement embodied in the Due Process Clause. (343)
• ... the Constitution is ... an effort by the people to restrict their representatives’ acts within the boundaries of lawfulness. Federal judges are part of that system ... (344)
• Alongside this “democracy” critique, however, many opponents of substantive due process argue that courts should not introduce normative elements into the law at all. According to this argument, the major problem of constitutional interpretation is confirmation bias—-a tendency to read into constitutional language whatever the reader wants to see. (346) [emphasis added]
• As a constitutional officer, sworn to uphold the Constitution, a judge is bound to impose the normative views that she, in her best judgment, believes are present in the Constitution. (348)
• But a Constitution is not a neutral document “made for people of fundamentally differing views” and cannot be equally compatible with all political or economic perspectives. On the contrary, it incorporates a classical liberal political philosophy rooted in individual rights and the tradition of lawful, non‐arbitrary rule. (348)
• The Constitution’s text, in short, indicates that it has a specific normative direction and that it incorporates sub‐ stantive political values. (349)
• Conclusion
• The phrase “separation of powers” is nowhere to be found in the Constitution .... It would be perverse to abandon this principle just because it is not explicitly stated in the text or to ridicule the logic on which it stands as being a set of subjective value‐judgments. (349)
• The same holds also for substantive due process. The Due Process Clause’s prohibition on arbitrary action may be complicated to apply; it may respond to difficult and overlapping demands of law and political philosophy. Nevertheless, it is part of our law. Indeed, in a way, it just is the law. (349)