Twelve Problems with Substantive Due Process

24 Pages Posted: 5 Jan 2018 Last revised: 24 Sep 2018

See all articles by Christopher R. Green

Christopher R. Green

University of Mississippi - School of Law

Date Written: January 1, 2018

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.

Suggested Citation

Green, Christopher R., Twelve Problems with Substantive Due Process (January 1, 2018). 16 Georgetown Journal of Law & Public Policy 398 (2018). Available at SSRN: https://ssrn.com/abstract=3095097

Christopher R. Green (Contact Author)

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
108
rank
237,739
Abstract Views
401
PlumX Metrics