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Devin Watkins on the Original Understanding of Substantive Due Process
Michael Ramsey

At Liberty Law Blog, Devin Watkins (Cato Institute): The Original Understanding of Substantive Due Process.  A very interesting take on the abortion and sexual orientation cases, but I have doubts about the post's central proposition.  The post argues: 

First, let me address what substantive due process is. ...

Let’s assume for a moment that the phrase “due process of law” is entirely procedural (although this is debatable), describing the process of indictment, a trial before a neutral judge, and resulting in a conviction.

Substantive due process means that these legal procedures have to have taken place before a person’s substantive rights to life, liberty, or property can legitimately be denied. A violation of substantive due process could be committed by the executive (such as imprisoning a defendant without completing these procedures), or by the legislature. When an act of the legislature purports to authorize the executive to take a person’s life, liberty, or property without going through this process in the courts, that is unconstitutional. It is also unconstitutional if the legislature directly takes a person’s liberty without first going through this procedure in court.

I'm fine with this so far, assuming that the last sentence refers to bills of attainder.  But the post continues:

A person’s liberty is the right to do those acts which do not harm others. The statute prohibiting a person from leaving a jail cell takes a person’s liberty just as much as a guard who physically prevents the person from leaving. ...

In Meyer v. Nebraska (1923), the Nebraska legislature prohibited even private schools from teaching in any language but English. This took their liberty to teach in the language of their choice without first going through any process of indictment, trial, or conviction. Before any individual’s liberty—such as the act of teaching in the language of their choice—can be taken away, that individual must be convicted of a crime in a court of law. Any statute passed by the legislature that prohibits a person’s acts of liberty prior to the judicial process of being convicted of a crime violates the Fourteenth Amendment’s Due Process Clause. The government can control public schools, but not private education, which people have the liberty to teach each other and their children as they choose.

I doubt this is defensible as a matter of original meaning.  Rather, it seems an assertion -- that due process as an original matter means people cannot be prohibited from doing things that do not harm others.  In originalist terms, that is an empirical claim and it needs empirical support; it cannot be deduced from first principles.  And I think it pretty doubtful as an empirical matter: (a) I doubt many founding era (or even 14th Amendment-era) commentators took this view; and (b) I expect there were lots of laws in the founding and 14th Amendment eras that restricted people's ability to do things that did not harm others.  I could be wrong on these points (it's not my area of expertise), but the post does not do much to show the contrary.

The post cites Thomas Jefferson saying:

Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add “within the limits of the law”; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

But Jefferson was an outlier in multiple respects; I would want to see a lot more on both points (a) and (b) above to accept this as a strong originalist argument.

(As an aside, I agree that Meyer probably reached the right result, but it would have been better based on the First Amendment.  Also, I agree that some things a legislature does might not qualify as due process of law -- for example, when the legislature acts outside its jurisdiction.  But as a general matter, the due process clause seems better understood as directed principally at the executive and the judiciary.)

Thanks to Mark Pulliam for the pointer (and he has some sharp objections in the very interesting comments section at LIberty Law Blog).