WORST DECISIONS OF THE SUPREME COURT OF THE UNITED STATES: Fourteenth Amendment, Procedural Due Process, and the invention of “Substantive” Due Process.

The first state legislatures had considerable power, especially over property rights. Anti-creditor confiscation laws are an example. There was also a flood of paper-money laws, which reduced the purchasing power of monetary instruments, reduced the value of creditor-held debt, and fostered inflation.

The new federal judiciary wanted to stop the predatory state legislation. How to do it? Some courts invoked extra-constitutional principles, such as those found in the writings of English philosopher John Locke and others based on “natural law.”

For example, in 1795, four years after the Bill of Rights was enacted, Justice William Paterson of the new Supreme Court of the United States said this to say in the case of Vanhorne’s Lessee v. Dorrance:

. . . the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects that induced them to unite in society. No man would become a member of a community in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law.

Every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompence in value. This would be laying a burden upon an individual, which ought to be sustained by the society at large.

The English history does not furnish an instance of the kind; the Parliament, with all their boasted omnipotence, never committed such an outrage on private property; and if they had, it would have served only to display the dangerous nature of unlimited authority; it would have been an exercise of power and not of right. Such an act would be a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation. It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with the comfort, peace, and happiness of mankind; it is contrary to the principles of social alliance in every free government; and lastly, it is contrary both to the letter and spirit of the Constitution. (Spelling as in the original. The word “Pennsylvania” was emphasized in the original. All other italics are mine.)

As rousing as Justice Paterson’s words were, many believed that while the Court’s reliance on “the letter . . . of the Constitution” (if an appropriate provision could be found) would suffice as the basis of a pro-property decision, the Supreme Court of the United States should do better in support of its decision than to rest on abstract “principles of reason, justice, and moral rectitude,” “the comfort, peace, and happiness of mankind,” and “the principles of social alliance in every free government,” let alone on the “spirit of the Constitution.” These empty slogans, as rousing and apparently heartfelt as they were (and whatever they meant), were non- and extra- constitutional. Some constitutional basis was necessary.

As the right to vote became more widespread and the power of legislatures grew, property rights, including those of creditors holding debt, became more threatened. Those rights were being sacrificed to the collective’s need for such things as soft money, debtor relief laws and other forcible statist transfers of private property.

In response, a firmer basis was sought upon which to ground judicial protection of property and creditor rights; ideally, some specific provisions of constitutions themselves, both state and federal. The idea was to move the protection of private rights — liberty, property, contract, creditor — away from the popularly elected legislatures and put them in the courts, where it was hoped that lawyers and judges could safeguard them. 

But how? How to defend, on purely constitutional grounds, property and related rights by reference to constitutions themselves? Remember that at the beginning on the federal level, the only provision of the Bill of Rights that mentioned the word “property” was the Procedural Due Process Clause of the Fifth Amendment. 

This was the top of the constitutional slippery slope. Because some textual justification was sought, and because the Due Process Clause of the Fifth Amendment (“No person shall . . . be deprived of life, liberty, or property without due process of law”) was the only place in the Bill of Rights where property was mentioned, that amendment was chosen to carry the burden of determining whether government action was “substantively” constitutional. Whether it was constitutional or unconstitutional (by what objective, constitutional standard no one knew). This, even though due process clauses had always applied only to form, process, procedure, but manifestly not to substance. 

But how would this shift of due process gears become accepted constitutional doctrine, especially since everyone knew that due process was synonymous only with procedure? 

How was procedural due process to be transmogrified into a substantive tool by which the content of legislation could be judged? A tool that would enable courts to decide the undefined “rightness” or “wrongness” of legislation based on the values of judges? How were the policy choices — social, economic, fiscal, cultural, political, sexual, etc. — of politically accountable legislatures to be evaluated for their constitutionality by politically unaccountable courts? 

For example, by what criteria was a court to decide, not whether somebody could be tried for gambling in a court where the judge was prosecutor and jury (which would obviously be a procedural deprivation of the defendant’s rights), but rather whether the legislature possessed the legal and/or constitutional police power to make gambling illegal in the first place (a substantive question). 

Understanding this distinction between procedural and substantive due process is essential to understanding what the Supreme Court has done to our individual rights, the promise of limited government, the capitalist system—and the right to die.

Let us go a bit further down the slippery slope. 

In the mid-1800s, New York enacted a statewide liquor prohibition law and applied it retroactively to liquor in existence before the law was passed. Property rights in existing legal inventories of liquor were summarily destroyed.

In the New York Court of Appeals (the state’s highest court), the majority opinion in the case of Wynehamer v. The People of the State of New York was written by Judge George Comstock. He expressly repudiated all the arguments against the prohibition law based on natural law: “fundamental liberty,” “common sense,” and “natural rights”— none of which found textual support in either the constitution or statutes of the State of New York. 

To the contrary, Comstock wrote that there was nothing outside the state constitution to render the prohibition law unconstitutional that couldn’t be found inside the state constitution: “[T]here is no process of reasoning by which it can be demonstrated that [the prohibition law] is void upon principles and theories outside the [state] constitution, which will not also and by an easier deduction, bring it in direct conflict with the constitution itself.”

In other words, people whose property (or liberty, or contracts) has been taken from them should not have to seek protection in extra-constitutional “natural law.” Nor “fundamental liberty.” Nor “common sense.” Nor “natural rights,” because there was textual protection in the constitution of the State of New York itself (if, according to the judge, one looked hard enough).

By now, the reader need not guess what provision of the New York constitution Judge Comstock was alluding to in his “outside-inside” point?

New York’s constitution contained a due process clause, which like others everywhere was exclusively procedural. So, Comstock would protect against the retroactive confiscation of Mr. Wynehamer’s legal liquor by invoking “due process,” not procedurally, but substantively.

But, due process of law had never been applied in New York courts to determine the constitutionality of a law’s substance.

No matter.

The next year, invoking the federal Fifth Amendment to the federal Constitution, the amoeba-like division of procedural due process into one part itself and another part substantive due process, became a reality in the morally corrupt, legally and constitutionally indefensible Supreme Court of the United States Dred Scott decision.

Chief Justice Roger Taney ruled that Section 8 of the Missouri Compromise, excluding slavery from the new American territories, was rendered void by the Fifth Amendment. But not because the procedure for enacting or enforcing that law was not “due process,” but because the Supreme Court regarded as unjust the inability of slave owners to take their “property” (i.e., slaves) from one place to another. Said Taney for the Court, 

. . . an act of Congress which deprives a citizen of his liberty or property [!], merely because he came himself or brought his property into a particular territory of the United States and who had committed no offense against the laws could hardly be dignified with the name of due process of law. (My italics.)

Thus, in its 7–2 Dred Scott decision, the Supreme Court of the United States declared that slavery was constitutional in the territories because Section 8 of the Missouri Compromise was “unfair,” “unjust,” “unreasonable,” “inequitable”—choose any synonym. It just was not “right,” by whatever subjective standard Taney and his six colleagues invoked (if they had any at all).

The Dred Scott decision “legitimized,” at least federally, the Fifth Amendment’s Due Process Clause as possessing a substantive power to invalidate laws enacted by Congress. The writing was on the wall: the Due Process/Law of the Land Clause that since Magna Carta in 1215 A.D. had been utilized to consecrate specific modes of procedure had been judicially transformed into a general roaming commission, a subjective monitor of any legislation capable of having a detrimental effect on life, liberty, property, or contracts.

The result of Dred Scott was that seven members of the Supreme Court of the United States, based on their own values, opened a vast territory to the immorality of human slavery despite Congress having prohibited it. The Court accepted that a slave could be someone else’s “property,” that the master’s ownership was an ingredient of the latter’s “liberty,” and to deprive him of his “property” violated the now-substantive Due Process Clause of the Constitution. 

Accordingly, the Dred Scott decision opened the courthouse doors to a principle which, when fully developed, was, and continues to be, destructive of individual rights and limited government. 

But Dred Scott was a federal, Fifth Amendment case. What about substantive due process in the states?

Now for some historical context.

In the time of the Wynehamer and Dred Scott cases, there was an important political development afoot in the United States. They, and other decisions like them, were jurisprudential fodder for the spread of Jacksonian democracy. This newly articulated doctrine of “popular sovereignty” trumpeted the supremacy of legislatures. Vox Populi. The Voice of the People. 

With good reason, many Americans considered this trend extremely dangerous. Governments were dabbling financially in railroads, canals, manufacturing, banks, steamships, and many other commercial activities. Creditors and other owners of property were justifiably concerned about the nearly unlimited power of state legislatures, so they turned for help to the courts.

But there was a serious obstacle beyond that of the substantive due process problem. The only Due Process Clause was in the Bill of Rights’ Fifth Amendment, which restrained only the federal government not the states. Unlike New York, not every state constitution had a procedural due process clause which could be morphed into a substantive due process clause.

Then, in 1868, American constitutional law, the protection of individual rights, and the Founders’ attempted institutionalization of limited government, changed forever.

The Fourteenth Amendment was ratified on July 9, 1868: 

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (My italics.)

Now federal courts could apply substantive due process not only to laws enacted by Congress as in Dred Scott, but also to state legislation.

What happened then appears in the next Blog on this subject, which will be the next-to-last one I shall write on these worst constitutional law decisions of the Supreme Court of the United States. As I will explain in the final one, I’m finished after two more.