The One and Only Substantive Due Process Clause
105 Pages Posted: 28 Mar 2010 Last revised: 15 Feb 2011
Date Written: March 6, 2010
The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law. At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-due-process question must be the same for both provisions. This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive due process‘.
At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of due-process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law. As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive due process.
Keywords: due process, substantive due process, original meaning, fifth amendment, fourteenth amendment
Suggested Citation: Suggested Citation