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12/20/2015

Matthew Franck (and others) on Substantive Due Process
Michael Ramsey

At NRO, Matthew Franck criticizes George Will: Asking Busybody Judges to Overrule Busybody Legislators.

Will is right to say that due process imposes “limits inherent in the idea of law” on the action of legislatures, and that “generality” and “regularity” are among those limits.  As I have shown in an article on the historic emergence of “substantive due process,” such norms are what distinguish a law, properly speaking, from a decree in the guise of legislation. But in the entire tradition of Anglo-American jurisprudence prior to the Dred Scott case, there is no judicial deployment of the due process principle to test the “fairness,” “rationality,” or justice of the substantive policy choices of legislatures.  Transforming due process into an all-purpose clause for overturning laws that fail to live up to the moral vision of judges was the work of Dred Scott, and continued in Lochner v. New York, Roe v. Wade, and—most recently—Obergefell v. Hodges.  Conservatives and constitutional originalists should have no truck with this ahistorical, anti-textual jurisprudence, which may occasionally achieve desirable results for political justice but will always traduce the proper limits of judicial power. ...

Evan Bernick has a strong response at Huffington Post: Pagedale and the Rule of Law: Matthew Franck's Unoriginal Case Against Substantive Due Process; as does Timothy Sandefur at Freespace: Franck's misrepresentation of my views (and) of the Constitution.  Here's Bernick: 

Franck is wrong on all counts. So-called substantive due process is firmly grounded in constitutional text; rooted in ideas about the function and limits of government that were accepted by the Founding generation, and critical to ensuring that the courts perform their appointed function as "bulwarks of liberty." It is Franck who breaks with Marshall, Hamilton, and Madison. [Timothy] Sandefur has already effectively demolished Franck's arguments; I come to spread salt on the ground, lest he (or others) seek to build upon it again.

Unsurprisingly, Matthew Franck has a further response: Due Process, Logic, and History, which is pretty harsh in general and in particular in this passage:

In general, Sandefur reasons that the unjust is the irrational, the irrational is the arbitrary, and the arbitrary is forbidden by the principle of due process.  This is a string of equivocations, and begins with unsubstantiated opinion.  The fact that Sandefur and I might even agree that a legislative enactment is unjust does not make it so, and it certainly does not follow that it is arbitrary under the fairly concrete meaning of due process, which requires regularity, generality, prospectivity, notice, and the like—all of which are present in the laws Sandefur lately condemns, but absent in his own favorite examples such as in Shirley Jackson’s The Lottery.  The trouble with practitioners of substantive due process is that they do not so much employ logic as collapse it.

I'm happy to stay out of this fight, except to note that it is not particularly helpful to originalism that most libertarian originalists tend to side with Bernick and Sandefur, while most non-libertarian originalists don't.