Thank You to University of Chicago Press For Correcting William Blackstone’s Warning
Andrew Hyman
I would like to publicly thank David Olsen and Brendan Carrick of the University of Chicago Press for correcting a misquote of William Blackstone in the web edition of The Founders’ Constitution. This error may seem like a small mistake, but actually it turned Blackstone’s meaning on its head. When I pointed it out, they fixed it, so three cheers for U. Chicago.
In his famous Commentaries, Blackstone warned that, if the executive or the judiciary were allowed to control procedural law, then parliament would eventually lose control of substantive law too. Here is what Blackstone wrote (emphasis added):
Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself.
Unfortunately, there was a typographical error here, but Blackstone was astute, caught the error, and included it in the list of corrections at the front of his book. The corrected version of Blackstone’s warning is as follows (emphasis added):
Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself.
Of course, Blackstone’s warning has been disregarded here in America, and the vehicle for disregarding it has been the Due Process Clause. In England, that clause simply meant that deprivations of liberty "must be by a legal authority” (per Justice Powys in Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704)). Here in America, the judiciary’s first big step in expanding that meaning was Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856). There, the Supreme Court stated that the Due Process Clause “is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.” The Court conveniently overlooked that the Due Process Clause already plainly prohibited Congress from releasing the other branches from the ancient principle that deprivations of liberty must be by a legal authority.
To solve the nonexistent problem of applying the Due Process Clause against Congress, the Court in Murray’s Lessee proclaimed that all federal legislation must comply with “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” To lawyers less prescient than William Blackstone, this rule from Murray’s Lessee would have been no cause for alarm, assuming the Court would stick to the historical approach that it announced in 1856, but the Court eventually meandered toward more subjective considerations, e.g. what shocks the Court’s conscience, or what seems fundamental to five of nine justices. Even then, a typical American lawyer would not have been alarmed at the Court's purely procedural rulings, although courts have found ample ways to use procedural hurdles to undermine substantive law. As Blackstone predicted, the outworks lay in ruins after 1856, leaving instead an inlet “to all manner of innovation in the body of the law itself.”
Nowadays, we have a name for the inlet to which William Blackstone referred: “substantive due process.” The framers of the Fourteenth Amendment did not see it coming; as Sixth Circuit Judge John Bush explained recently (quoting Michael McConnell and Nathan Chapman): “[n]o significant court decision, legal argument, or commentary prior to the adoption of the Fourteenth Amendment . . . so much as hinted that due process embodies the principle that certain natural liberties are inviolate against any laws.” That’s correct, and I would include the Dred Scott decision in that category.
Maybe it was always inevitable that Blackstone's warning would go unheeded in America, per the ancient maxim "Boni Judicis Est Ampliare Jurisdictionem." That maxim, which means the duty of a good judge is to enlarge his jurisdiction, is a crummy maxim, and unconstitutional too. But the maxim does perfectly describe human nature.
CORRECTION: This post has been updated to reflect the correct author.