Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous. The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive. An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.
Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”
The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment.
Here is the article’s core conclusion:
Legislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law procedural protections. … [T]he principle of due process extended to acts of the legislature in two narrow ways: statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either in the legislative forum itself or in the course of subsequent judicial consideration. (P. 1676.)
This encompasses a role for judicial review of some statutes, but avoids the Supreme Court’s current tool for such examination, substantive due process. In short, the Constitution rejected the British notion of Parliament’s supremacy, but did not trade parliamentary supremacy for judicial platonic guardianship.
Legislative adjudication of cases, though commonplace in Britain, was not contemplated in the Constitution. Nor was special legislation invidiously targeting specific persons acceptable to the Founders. Individualized punishment, dispute resolution, and the related tasks of finding the common law and interpreting statutes, were for the courts. Law enforcement was for executive officers, but only when those officers were enforcing laws enacted by the legislature. The Founders would have thought the judiciary institutionally arrogant to throw out legislation for failure to satisfy a particular judge’s notions of natural law or enlightened policy, but would have been quite comfortable with a more particularized brand of judicial review that repudiated institutionally inappropriate legislative acts. Specific bars in the Constitution, such as those against bills of attainder and ex post facto laws, are consistent with this analysis. “The Framers specifically enumerated protections that they regarded as especially important, and then added a catch-all”—due process.
Chapman and McConnell delve into history to prove their points, quoting from and giving contextual explanations of early English and American authorities. In England, judges interpreted Parliament’s decrees, but had no authority for substantive due process review of legislation. In the American experience, colonists perceived that Parliament violated their rights by altering common law procedural protections and established property rights without a fair hearing. Colonial experiments with legislative supremacy collectively “led many Americans to recognize that legislatures, no less than executive officials, must be controlled by the force of law.” Alexander Hamilton, viewed by some as supporting substantive due process, only said there “must be certain procedural safeguards before someone may be deprived of his rights.”
Of course, students of the founding era are aware that structural constitutional law and individual rights have a deep synergy. After all, James Madison thought the Constitution’s structural provisions were so liberty-enhancing that a Bill of Rights was unnecessary. Eventually, Madison supported (and even drafted) the Bill of Rights. Even if it was unnecessary to protect citizens, it was essential to the Constitution’s ratification.
These questions remain central: (1) Does due process apply to legislative acts? (2) If so, how? The former is easily answered through a structural argument (Madison’s initial proposal was to locate the clause in Article I before Bill of Rights was appended to the Constitution) and a comparative argument (other Bill of Rights provisions clearly applicable to Congress were equally “silent about whom it prohibits from depriving rights” by use of the passive voice). Addressing the second point consumes much of the article. The authors concede that the Framers believed in natural law—witness the Declaration of Independence—but find “no evidence that any [Framers] believed that acts of Congress would be evaluated by their conformance to natural law.” Their view is consistent with the focus on positive law when it lists only the Constitution, acts of Congress, and treaties as “the supreme Law of the Land” in Article VI.
In a long historical section, Chapman and McConnell consider whether, as Ryan Williams argued in The One and Only Substantive Due Process Clause, 120 Yale L.J. 408 (2010), the due process clause of the Fourteenth Amendment should be read more broadly to encompass substantive due process. They answer no. They argue that a huge body of case law prior to ratification of the Fourteenth Amendment, plus the text and history of the amendment, show that “due process” was a structural limit on Congress to act only by legislating. The due process clause of the Fourteenth Amendment was not an open-ended invitation for substantive overruling of statutes based on natural law or moral principles. Separation of powers principles rather than natural law controlled due process invalidation of legislation. This is the core of the authors’ case.
Neither quasi-judicial acts by legislative bodies nor rules operating on individuals rather than “general rules for the government of society” were allowed. Importantly, this latter category did not include statutes benefiting one or more persons where nobody was deprived of a right: absent deprivation, no process was due. Illustrative state and federal cases, dating from 1798 to 1853, are far removed from modern substantive due process. They rely on two structural principles, prospectivity and generality, while substantive due process invalidates some legislation that is prospective and applies to all citizens equally. All but two are fully explicable on “due process as separation of powers” grounds rather than substantive due process. “[T]he two faulty exceptions . . . prove the rule,” one being inconsistent with state court and Supreme Court decisions and the other, Dred Scott v. Sandford, being arguably the most despised Supreme Court decision of all time.
Chapman and McConnell show that, while abolitionists prior to the Civil War argued that higher law invalidated slavery, courts rejected those arguments. After the Thirteenth Amendment (positive law) abolished slavery, abolitionists sought only the due process as separation of powers rights recognized for whites. No abolitionist argued that the Fourteenth Amendment provided substantive due process rights.
The final section of the article, “Applications,” begins by noting that the theory of due process as separation of powers contains two challenges. The first, distinguishing between the constitutional functions of the three branches, is resolved by holding legislation to standards of prospectivity and generality. The second, interpreting whether facts fall within or outside these standards, “is surely exceeded by modern substantive due process, which has no consistent or reliable content beyond the Justices’ personal moral views.”
After dealing with the property and liberty to which due process applies, Chapman and McConnell turn to due process for the executive and the legislative branches. They find Justice Jackson’s famous tripartite system for evaluating executive actions in the Steel Seizure Case “needlessly complicated”: if the executive took the company’s property without “an express or implied authorization of Congress,” due process was lacking. Where they stand on sole presidential powers, the “unitary executive,” and the Commander-in-Chief power is unclear, and less helpful than the guidance provided in Justice Jackson’s concurring opinion. Their take on delegation of authority by Congress—that unclear delegation should be construed as no delegation—represents a huge departure from current principles of deference, and their skepticism of military detention, which “goes to the heart of the liberty protected by the Fifth Amendment,” is noteworthy.
Predictably, the article takes apart the classic substantive due process cases. Here are some examples: Lochner is insupportable as substantive due process but the Tenth Amendment “should have provided the determinative rule of decision”; Griswold’s inalienable right of couples to buy contraceptives “strains any reasonable construction” of the Constitution, but Privileges and Immunities might protect that right; Glucksberg and Troxel did “little to restore the original meaning of due process”; Roe is insupportable but “firmly established in precedent”; and Casey and Lawrence “put lawmaking beyond the reach of the government without a sound basis in the text, history, or jurisprudential practice of due process of law.”
And there is more. This is important scholarship, broad-ranging and potentially game-changing. Will it help get the Supreme Court out of a deeply flawed doctrinal box? Unlikely, but only time will tell.