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01/01/2018

Twelve Problems with Substantive Due Process
Chris Green

I have posted Twelve Problems with Substantive Due Process, part of a symposium at Georgetown last spring, to SSRN. Here is the abstract:

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”:

(1) Textually, Magna Charta and its progeny treat “due process of law” as a restriction on methods of proving accusations.

(2) These statutes’ contexts make clear that they limit royal power rather than giving the king a massive power (and duty) to review earlier statutes for reasonableness.

(3) The most promising purported early instance of reasonableness review, Dr. Bonham’s Case, makes no mention of Magna Charta or its progeny.

(4) Blackstone says that, while regrettable, prospectively-adopted and lawfully-imposed disproportionate sentences are consistent with Magna Charta and its progeny.

(5) “Process” in the Sixth Amendment refers to factfinding writs.

(6) No purported instances of antebellum substantive due process adopt a reasonableness reading.

(7) Republicans simultaneously condemned slavery as immoral but held that slaves could be “lawfully claimed” and fugitives “lawfully reclaimed.”

(8) Responding to Dred Scott, Lincoln explained the Fifth Amendment as a requirement of prospectivity and lawfulness, not an absolute protection for liberty or property.

(9) Republicans held that “duly convicted” in the Thirteenth Amendment required conviction by due process of law, but allowed disproportionate, unreasonable sentences.

(10) “Law” in the Privileges or Immunities Clause can be unreasonable or unjust.

(11) Reverdy Johnson embraced due process while opposing the Civil Rights Act of 1866 and condemning the Privileges or Immunities Clause as vague and open-ended.

(12) The history of citizens-only privileges makes the Privileges or Immunities Clause the only plausible source for a constitutional ban on unreasonable discrimination.