The U.S. Constitution is full of terms of art — short legal phrases with deep implications and even deeper historical roots. One such phrase is the Fifth Amendment’s guarantee that no one will be “deprived of life, liberty, or property, without due process of law,” repeated as binding on the states in the Fourteenth Amendment.
What exactly do these phrases mean? We would probably all agree that they promise an impartial trial for anyone facing one of these deprivations. But do they go further? Can a law itself violate this clause?
Is there, in other words, a substantive component to the due process of law? One that reaches the laws themselves, as well as their mode of execution?
Left-liberals long professed a disdain for substantive due process. To them, it smacked of the economic liberties supposedly protected therein, and of restrictions on New Deal–era economic legislation. Substantive due process meant the bad old days of Lochner v. New York — until, that is, some cases started cropping up that looked an awful lot like substantive due process in their reasoning, but that reached left-liberal results. Roe v. Wade, I’m looking at you. Lawrence v. Texas, too. And so conservatives like Clarence Thomas have come around to the other other side, and opposed substantive due process, and round and round we go.
To shed some light on the subject, Timothy Sandefur has offered this month’s lead essay for Cato Unbound. In it, he argues that not all things having the formalities or trappings of law can properly bear the name of the law — laws passed for naked self-interest may be enacted according to the proper legal procedures, but we cannot say that they are just, and “due process of law” ought to exclude them, because law itself is orderly, regular, and done for the sake of the public good. Indeed, we only have the process and procedures of law — the easy parts of due process — for the sake of trying, imperfectly, to protect the substance of fairness. They would be exceedingly hard to justify otherwise.
Sorry if this is a little head-in-the-clouds. I try to do a mix of abstract and concrete stuff at Cato Unbound, and last month it was flying killer robots. This month, highbrow legal philosophy.