CHAPTER 2

Substantive Due Process

§2.1 INTRODUCTION AND OVERVIEW

The Origins of the Due Process Clause

There are two Due Process Clauses, one in the Fifth Amendment and one in the Fourteenth Amendment. The former operates as a limit on the power of the national government, while the latter operates against the power of the states. Both clauses guarantee within their respective spheres that no person shall be deprived “of life, liberty, or property, without due process of law.” Since both clauses operate in essentially the same fashion, albeit against different governmental bodies, we will refer to them collectively as the Due Process Clause.

The basic notion behind the Due Process Clause derives from Article 39 of Magna Carta, in which the King of England promised in 1215 that “[n]o free man shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or any wise destroyed … but by the lawful judgment of his peers or by the law of the land.” While this guarantee severely narrowed the King’s prerogative—barring him from depriving a person of life, liberty, or property except in accordance with the law—it placed no constraints on what Parliament might enact as “the law of the land.” Magna Carta would thus not have been offended if, pursuant to an act of Parliament, the King imprisoned everyone whose mother’s first name began with the letter “V.”

While some early American state constitutions closely tracked the language of Magna Carta, the fifth article of the federal Bill of Rights replaced the words “by the law of the land” with the more ambiguous phrase “due process of law.” It was possible to have read this clause as going no further than Magna Carta. Under such a reading, a governmental deprivation of life, liberty, or property would automatically satisfy the Due Process Clause as long as it was in accordance with a law duly enacted by the legislature. However, the Supreme Court rejected such a reading of the Due Process Clause in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). The Court there ruled that the fact that a deprivation may occur “in conformity with an act of Congress” does not necessarily mean that it satisfies the Fifth Amendment Due Process Clause.

It is manifest that it was not left to the legislative power to enact any process which might be devised. The article 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.

Id. at 276. The same principle holds with respect to state legislation challenged under the Due Process Clause of the Fourteenth Amendment. Davidson v. New Orleans, 96 U.S. 97, 102 (1878) (rejecting notion that a state can “make any thing due process of law which, by its own legislation, it chooses to declare such”). In short, the Due Process Clause operates as an independent check on the exercise of governmental power.

Procedural versus Substantive Due Process

The limitations imposed by the Due Process Clause are of two distinct types—procedural and substantive. Procedural due process commands that when the government acts to deprive a person of life, liberty, or property, it must do so in accord with procedures that are deemed to be fair. As we will see in Chapter 5, procedural due process usually requires that a person be given notice and the opportunity to be heard before a deprivation occurs.