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Dred Scott and "Substantive Due Process":

Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of "substantive due process" to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney's opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process:

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States 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 offence against the laws, could hardly be dignified with the name of due process of law.

The main historical significance of Scott's discussion of due process, then, is not as the case that invented "substantive due process," as Bork would have it, but quite the opposite--it indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power.

UPDATE: A comment points out that Justice Scalia has said: "You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'" Apparently, Scalia needs to read the actual Scott opinion, and some constitutional history, instead of The Tempting of America. Scott was not the first case to use the concept of SDP, and it definitely did not use that term. Indeed, the phrase "substantive due process" wasn't invented until at least the 1930s. This leaves the Lochner critics who commonly chastise the Court for relying on the "oxymoron of 'substantive due process'" looking rather silly, as the Justices of the Lochner Court would not have been familiar with that phrase.

BandarBush (mail):
"Dredd Scott was the first Originalist case?! You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'"
-Justice Antonin Scalia
7.19.2007 6:28pm
DavidBernstein (mail):
Scalia did indeed say this, and he's absolutely wrong; Scott was not the first case to use the concept of SDP, and it definitely did not use that term, as the phrase SDP wasn't invented until at least the 1930s.
7.19.2007 6:32pm
DavidBernstein (mail):
And on Origalism, Scott did indeed apply a version of original intent that ignored the actual wording of the Constitution, a mistake that good originalists today wouldn't make.
7.19.2007 6:33pm
Duffy Pratt (mail):
Not only that, but there are areas of substantive due process that I think even Scalia would agree with. For example, does a provision of the constitution insure federal jailers feed their pre-trial detainees? If so, what is the source of the right of a pre-trial detainee to be fed? The answer is -- due process, and it is a substantive right. Or maybe Scalia would think its OK to starve people being held for trial?
7.19.2007 6:42pm
OrinKerr:
David,

So if substantive due process did not originate with the Dred Scott opinion, where did it originate?

Orin
7.19.2007 7:31pm
T. Gracchus (mail):
There is a very interesting short work by M. Graber on Dred Scott (Dred Scott and the Problem of Constitutional Evil), which argues that Taney's decision was not wrong.
7.19.2007 7:34pm
ATRGeek:
As I see it, the importance of Dred Scott's discussion of this issue is just that it provides contemporary historical support for a similar reading of the Due Process Clause of the Fourteenth Amendment (an admittedly odd connection, in light of the fact that the Fourteenth Amendment in some sense was helping to undo Dred Scott, but stranger things have happened). In other words, regardless of what "due process" might have meant at the time of the ratification of the Fifth Amendment, one could use Dred Scott as evidence of what it meant at the time of the ratification of the Fourteenth.
7.19.2007 7:42pm
DavidBernstein (mail):
Orin, that's a good question (putting aside semantics—there was no "substantive due process", as such, until relatively modern times), and I hope to have a definitive answer in a book on Lochner I'm working on. But it certainly wasn't Scott, as is pretty obvious from the nonchalant way the concept is used in the opinion itself. One overview I've come across recently is http://www.providence.edu/mba/goodrich/nepsa/nejps/
v2n1/article3.pdf
which asserts that the SDP concept was around for "decades" before Scott.
7.19.2007 7:47pm
OrinKerr:
David,

I look forward to the book. Can you give us a hint of some of the sources before the Dred Scott case? It may be that there are earlier sources that are not clearly the first, and you don't want to say which of them was actually the first, but I think it would help the criticism of Bork and Scalia if you could point to earlier opinions discussing/appying the concept before Dred Scott.
7.19.2007 7:56pm
Brett Gardner (mail):
I'm not sure I understand this. The post bristles with hostility merely because, it would seem to me, Scott is cited as the first instance of a phenomenon that it certainly employed. Whether it was in fact the "first" or not (and I believe it was), it is properly cited as the epicenter of modern substantive due process. As to the validity of Bork and Scalia's claim based on the fact that the term itself was not mentioned, I put little faith into that argument. I'm sure any number of philosphies existed before a name was affixed. A rose by any other name.
7.19.2007 7:58pm
Anthony Calabrese (www):
In my Con Law class we spent maybe 5 minutes on Dred Scott and it was spend looking at the two or three paragraphs which formed the "sunstantive due process" argument. That was about the sum of it in my professor's case book also (William Banks). I have seen it argued though that there are earlier cases which also use the concept.

Interestingly, my first year in school, the professor of one of the other Con Law sections was accused of racism because he did not spend much time on Dred Scott (he spent about a day on the case IIRC). He later became US Attorney for the NY Northern District under Clinton and then resigned due to boredom.
7.19.2007 8:00pm
Justin (mail):
I'm not sure what the issue here is. If we assume ab initio that slaves were property (as an originalist interpretation of the constitution would arguably require), how exactly would, under Scalia's interpretation of the constitution (other than that), a rule prohibiting someone from taking their property from state A to territory B be constitutional without indemnification?
7.19.2007 8:07pm
Justin (mail):
BTW, someone on Wikipedia seems to have done a pretty good job with the history argument. Agrees to a large degree with the article DB cites, and sort of splits the difference. Like most law, it seems SDP evolved rather than was created out of the ether.

http://en.wikipedia.org/wiki/Due_process
7.19.2007 8:17pm
DavidBernstein (mail):
Orin, some of the cases are cited in the article I quoted, and I'd also suggest looking at Ely, THE OXYMORON RECONSIDERED: MYTH AND REALITY IN THE ORIGINS OF SUBSTANTIVE DUE PROCESS 16 Const. Comment. 315, which contains other citations going back to the 1790s. This is all more complicated than it seems, because (a) no one talked about SDP, as such; (b) even when judges thought the DP clause or similar constitutional provisions protected substantive rights, they didn't always bother to discuss it because they thought the law in question violated inherent limits on gov't power regardless of any specific constitutional guarantees; and (c) states didn't usually have due process clauses in their constitutions, but analogous (and arguably synonymous) "law of the land clauses." Anyway, the articles cited provide plenty of citations; what evidence do Bork and Scalia have that Taney invented the concept, other than the fact that it fits their polemical needs?
7.19.2007 8:20pm
Steve:
As to the validity of Bork and Scalia's claim based on the fact that the term itself was not mentioned, I put little faith into that argument. I'm sure any number of philosphies existed before a name was affixed.

But Scalia's claim was, in fact, that Dred Scott used the term. Thus, the fact that Dred Scott did not use the term is rather dispositive of Scalia's claim, whether you choose to acknowledge the point or not.

It's clear that the attempt to show a close link between Dred Scott and substantive due process is nothing more than an attempt to prove guilt by association. Dred Scott invented the doctrine, Dred Scott is a horrible case, ergo the doctrine is horrible! But it's just not so. It's a jurisprudential smear job. And kudos to Prof. Bernstein for calling a spade a spade, even though I'm confident he's no fan of substantive due process.
7.19.2007 8:23pm
DavidBernstein (mail):
Brett, on what basis is Dred Scott the "epicenter" of SDP, other than the fact that Bork and others say so, because they want to associate Lochner and Roe with Scott? The case barely mentions the doctrine, and isn't cited favorably (or at all) in later SDP opinions.

Anthony, the charge of racism for covering Scott in one day is bizarre. I can see a good argument for spending more time on it, and a good argument for barely mentioning it (if a con law course focuses on modern constitutional doctrine and eschews history, as I'm sure some course (but not mine) do, Scott is pretty much irrelevant since its holding was explicitly overruled by the 13th Amendment).
7.19.2007 8:24pm
Justin (mail):
"even though I'm confident he's no fan of substantive due process."

Really?
7.19.2007 8:26pm
Mark Field (mail):
My recollection is that some of the early right to bear arms cases relied on "substantive due process". Since I don't have a handy cite, nor the time to find one just now, anyone can feel free to correct me.
7.19.2007 8:33pm
James R. (mail):
Due Process of Law: A Brief History by John V. Orth contains an interesting history of substantive due process. In it, Orth traces the concept to Blackstone and Coke. I would recommend it, as it is a short and enjoyable read.
7.19.2007 9:12pm
Luis (mail) (www):
Dear David,

"Dred" should, I think, have one "d" throughout. Since this is not a huge deal I am not bothering you with an email on this nitpick.
7.19.2007 9:55pm
msmith (mail):
...Scott is pretty much irrelevant since its holding was explicitly overruled by the 13th Amendment)....

But not that beautiful paragraph. Has anyone seen it put better or more concisely, anywhere? Worth teaching just for that.

...It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
7.19.2007 9:58pm
Just a Nut (mail):
msmith has an interesting take on yet another mistake in this case that begs to be struck from the books. Assuming that the quote is from Dred Scott, it must have been written without consulting the Constitution itself. Plainly, the Constitution does no such thing. Instead, the Constitution expressly lays down the judicial power as including both law and equity-- and there is no prohibition against deciding "upon justice or injustice."

Indeed, equitable powers provide for justice even if the law commands otherwise. The quoted paragraph may be yet another example of the grand basis being laid to subvert plain language by ignoring it and refusing to do what it commands expressly- apply law and equity together- they are not separate.

Even my grandmother knows better- Judges do justice- and without needing a lawyer to help her. What are we going to have next?- Doctors who consider healing as not their province, engineers who do not make stuff, and legislators who do not legislate-- wait a minute we already have those.
7.19.2007 10:24pm
r78:
[Deleted for invective]
7.19.2007 10:26pm
DavidBernstein (mail):
Justice Taney neglects the very important point made in dissent that traditional Anglo-American legal principles disfavor slavery as a violation of natural rights, and as a product only of positive law, and thus ambiguous constitutional provisions should be interpeted in light of that background principle.
7.19.2007 10:31pm
Jon Rowe (mail) (www):
I think the phrase six and one half dozen of the other comes to mind. Even if substantive due process is an oxymoron (because due process is always procedural) virtually all of the rights that the Supreme Court recognizes under substantive due process, more properly, could be found under the privileges or immunities clause of the 14th Amendment.
7.19.2007 10:34pm
Vova Shklovsky (mail):
Brett, understanding Scott requires one to ask what the meaning of due process was between the passing of the 5th amendment and the Scott decision. Whether it was in fact the "first" or not (and I believe it was) isn't trivial for anybody who cares to have a written constitution for more than sentimental reasons. To write that Scott was the first example, rather than merely a famous one, is to attack the legitimacy of the concept.
7.19.2007 10:36pm
Reg (mail):
I think Bork has ground to stand on and you are overstating your case.

you write:


It indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power.


But Dred Scott is not a normal opinion. It was arguably the most activist, political, results oriented, poorly reasoned opinion of the century. Taney was grasping for any justification he could to reach his desired result. Its no coincidence that this is the first case to throw out the due process clause as justification for a substantive result. I don't think this suggests anything about how well established the idea of substantive due process was. I'd say it suggests it wasn't very well established at all, otherwise Taney surely would have used the idea for more than a rhetorical aside:


An act of Congress which deprives a citizen of the United States 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 offence against the laws, could hardly be dignified with the name of due process of law.


If this argument had any force at the time it would have been developed, and Taney would have told us why the name due process could not be used to refer to the dissent's favored result.
7.19.2007 10:38pm
frankcross (mail):
You should check Mark Graber's book. It's an excellent historical analysis and explains why Dred Scott was quite reasonable, probably correct, under the law at the time.
7.19.2007 10:43pm
DavidBernstein (mail):
Reg,

Taney clearly was NOT relying on the SDP argument for his holding, but just using it as an illustration of another point. I never judge whether a court thought an argument had much force by how it's used in an opinion, because the opinion itself doesn't reveal whether a party raised the argument in its briefs.
7.19.2007 10:53pm
Reg (mail):

Taney clearly was NOT relying on the SDP argument for his holding, but just using it as an illustration of another point. I never judge whether a court thought an argument had much force by how it's used in an opinion, because the opinion itself doesn't reveal whether a party raised the argument in its briefs.


Court's don't always confine their opinions to issues raised in the briefs. Maybe they did in 1850, I don't know.

But doesn't the fact that it wasn't argued or briefed in such a huge, political case suggest that the concept of due process was NOT seen as encompassing substantive rights, and that this was NOT well-established?

I'm no substantive DP scholar, but it seems that other caselaw in this country employing substantive DP in any way before Dred would be the best evidence to support your argument that the concept was well-established. Does any exist?
7.19.2007 11:04pm
Brett Gardner (mail):
Vova, I'm not quite sure I understand your point. To say that I or anyone else must owe deference to the term "due process" simply because it already existed is to say nothing about the use of the term in context. Surely nobody would agree that due process would protect the right of Republican government or Congressional pay raises or any other clause found explicitly in the Constitution, so why must we worship at the alter of due process in its judge-made substantive form simply because it ursurps the content of its phrase from the Constitution.

If, though, you're saying that Scott was not the first instance of explicit, willful expansion of the judiciary into substantive due process, I'd ask you what you offer as proof to the contrary.
7.19.2007 11:06pm
ReaderY:
I fully agree with Bork on this. Although it didn't use modern jargon word-for-word, it held that Congress can't prohibit slavery in federal territory because to do so would violate a fundamental right to own a slave.

It spent a lot more time attempting to claim that right was deeply rooted in history and on other matters then it did discussing the Due Process Clause as such, but then again, so did Roe v. Wade. Could one seriously argue that Roe isn't a substantive Due Process case because of the disportionately small amount of space the Court devoted to discussing the Due Process Clause itself vis-a-vis other matters.

Also, if Dredd Scott was not the first case to strike down a law as under the Due Process Clause as violative of a substantive personal right not directly stated in the Constitution's text, could someone please cite an early case which did this?
7.19.2007 11:17pm
DavidBernstein (mail):
I retract, somewhat. The due process part of the opinion is ambiguous, but can be read as a secondary holding.
7.19.2007 11:36pm
DavidBernstein (mail):
OTOH, while a bit obscure, I don't read the dissent as rejecting SDP, just rejecting the proposition that slaves are a normal type of property that can't be interfered with by Congress in the territories.
7.19.2007 11:39pm
SR (mail):
"Also, if Dredd Scott was not the first case to strike down a law as under the Due Process Clause as violative of a substantive personal right not directly stated in the Constitution's text, could someone please cite an early case which did this?"

My understanding is that Dred Scott was the first Supreme Court case to strike down any law under the due process clause, on substantive or procedural grounds. Nonetheless the history of the use of the term "due process" from even before Coke, indicates that it protected substantive rights from legislative encroachment.

I want to echo Jams R.'s recommendation of Orth's book Due Process of Law for anyone who wants to know and be able to talk about the history of the concept of due process.
7.19.2007 11:45pm
Dennis Murashko (mail):
Could it be that Scalia and Bork were saying "the first case" to mean "the first Supreme Court case"? I'm not sure if it makes their claim any more defensible--were there Supreme Court cases mentioning SDP or implicitly relying on SDP-like reasoning before Scott? If not, then Scalia and Bork are still correct in their assertion, no?
7.19.2007 11:50pm
Steve:
Scalia can't be correct that "Dred Scott was the first case to use the horrid term 'substantive due process,'" unless Dred Scott used the term "substantive due process." There's no getting around that.
7.20.2007 12:26am
Reg (mail):

I don't read the dissent as rejecting SDP, just rejecting the proposition that slaves are a normal type of property that can't be interfered with by Congress in the territories.


I agree. But Taney's statement suggest's that the dissent's favored result would conflict with SDP.


the history of the use of the term "due process" from even before Coke, indicates that it protected substantive rights from legislative encroachment.


How was it determined what those substantive rights were? Are there cases before Dred in which judges refused to apply a statute because it found that the statute impinged on rights protected by SDP? I've never heard the argument that there was and I'm curious. I'd rather read a case than wade through a book and then have to go dig into primary sources to decide whether the author fairly represented them.
7.20.2007 12:30am
DavidBernstein (mail):
Bork clearly implies, perhaps even states, that the Court in Dred Scott simply made up SDP, with no historical or other rationale to back it up. This is old-fashioned "law office" constitutional history--read the most famous Supreme Court cases and reason backward from them. Not limited to Bork and SDP, similar (or worse) with various people who claimed over the years that the Lochner era Court was infected with Social Darwinism, based on a misreading of a single line in a single Holmes dissent.
7.20.2007 12:36am
Reg (mail):
I just checked out the Scalia quote. The context is a Q&A with Breyer, and he is making a rather light-hearted, and obvious conservative response to a question.

I thought that around here, we didn't hold those speaking extemporaneously to the same standards we would one writing a law review article.
7.20.2007 12:36am
Dennis Murashko (mail):
Steve: I agree with you so far as that goes. If someone claims "A says B," but A doesn't say B, then yes, we have an error. But what if it's simply a case of unfortunately bad wording? If the case does use SDP-like rationale (a point on which Professor Bernstein "retract[ed], somewhat") without expressly labeling that rationale "SDP," isn't it understandable that one might misspeak and attribute to the case explicit rather than implicit invocation of the term? I, for one, would at least give Scalia the benefit of the doubt and not jump to the conclusion that Scalia must be relying on Bork's book instead of reading cases for himself.
7.20.2007 12:38am
Steve:
I'm just saying Scalia was wrong. I'm not saying he should be shot at dawn. Why is it so hard to say yes, he was wrong?
7.20.2007 12:48am
Dennis Murashko (mail):

I'm just saying Scalia was wrong. I'm not saying he should be shot at dawn. Why is it so hard to say yes, he was wrong?



Because he can do no wrong. In all seriousness, though, what I take issue with is not so much your insistence on pointing out Scalia's pitfalls (I did agree with you that he was wrong as a literal matter) but Professor Bernstein's conclusion that Scalia must be drinking Bork's Kool-Aid. I very much doubt that those who disagree with Scalia accomplish much, if anything, by taking literally what was said in a light-hearted manner (as pointed out by Reg). But you, of course, are free to disagree.
7.20.2007 12:57am
Dave Hardy (mail) (www):
Digression: I found a case in American State Trials where Taney, as a young man, successfully defended a Marylander charged with violating the local Slave Act by preaching an abolitionist sermon to an audience that included slaves -- and a fiery sermon it was! Taney read in quotations from the Framers that condemned slavery (most of them slave owners, oh well) and asked whether the fathers of the country hadn't used even stronger language, and whether they would be subject to imprisoment, too. I seem to recall that he'd freed his own slaves, as well. I don't know if we ever will resolve:

Did Taney change his views later?

Did he think that the decision would depoliticize the issue, and thus was wise policy if not good law? Or

Did he really think it was good law?
7.20.2007 1:44am
Anthony Calabrese (www):
DavidBernstein -- Yes, the racism charge was very bizarre and extremely unfair. The particular professor was an old style gentleman liberal (bow tie and everything) and frankly he was out of place in the modern academy.

My Con Law professor spent much time on the historical cases when relevant. He believed that Dred Scott was relevant only with respect to substantive due process, and his case book reflects that accordingly. We spent the first 1/3 of the year or so looking at separation of powers and federalism issues, and only then got into individual rights. Dred Scot itself takes up about 2 1/2 pages, with another 2 pages of notes (we spent maybe 5 minutes on it then quickly turned to Barron and the Slaughter House Cases). By comparison, Marbury takes up about 8 pages of text, and 1 page of notes.
7.20.2007 1:49am
SR (mail):
"How was it determined what those substantive rights were? Are there cases before Dred in which judges refused to apply a statute because it found that the statute impinged on rights protected by SDP?"

Although I think that Dred Scott was the first Supreme Court case to strike down a law (partly) on due process grounds, Calder v. Bull, while not striking down the law, analyzes due process and comes up with some substantive requirements. Due process, and cap 39 of the magna carta were widely regarded as imposing a rule of reason. Any law that was against reason was void. One of the implications of this fact drawn out in Calder v. Bull was that the law cannot take from A to give to B.
7.20.2007 9:42am
LGVV:
1) The fact that the due process discussion is brief and occurs only at the end of Taney's opinion means little. He first had to deal with the citizenship question, then discuss the status of the territories, etc. Those questions are long since disposed of as irrelevant or downright immoral, so today we rightly focus on his last claim, about the specific due process prohibition that limits Congress' hold on the territories. That's the one part of Taney's opinion that might actually animate current case law.

2) The post is absolutely right that the phrase "substantive due process" does not appear, and I'll concede that the idea didn't originate with Dred Scott. But the word "property" (more than a few times referring to slaves) appears quite often. And each occurrence emphasizes the right to property that Taney finds in the Due Process Clause. The claim is an important part of the opinion, and this is a rather important opinion, so I would characterize it as an important example in discussing substantive due process.

3) Although Taney's opinion might obscure the importance of the due process claim, the dissents mention it prominently. And they sure don't treat it as an established idea. From Curtis' dissent:

"Looking at the power of Congress over the Territories as of the extent just described, what positive prohibition exists in the Constitution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes north latitude?

The only one suggested is that clause in the fifth article of the amendments of the Constitution which declares that no person shall be deprived of his life, liberty, or property, without due process of law. I will now proceed to examine the question, whether this clause is entitled to the effect thus attributed to it." And he proceeds at length to tear that proposition to shreds.

Conservatives sure can become overly excited and inaccurate in linking Dred Scott to substantive due process, but the link is there.
7.20.2007 10:42am
Rich B. (mail):
I recently read a book entitled "Seriatim," about the pre- John Marshall Supreme Court justices. It was actually a series of long essays -- one on each Justice -- by different authors, with each author insisting that while John Marshall is credited with the concept of judicial review and the power to invalidate statutes on Constitutional grounds, in fact, the concept is much older and -- by golly -- here's a pre-Marbury v. Madison case or article authored by my particular Justice that uses/mentions/assumes the inherent right of judicial review.

The book, I thought, essentially shot itself in the foot because, while it successfully proved that everyone and his uncle (except John Marshall) "invented" judicial review, the really important fact was the clear statement and application is a Supreme Court opinion.

I assume that something comparable is going on here. Taney did not "invent" SDP, and Scott was not the "first" case, but in most important ways it became the first "precedent" in ways that earlier uses were not or could not be.
7.20.2007 10:59am
loki13 (mail):

I assume that something comparable is going on here. Taney did not "invent" SDP, and Scott was not the "first" case, but in most important ways it became the first "precedent" in ways that earlier uses were not or could not be.


Rich B.,

How is it that Scott is similar to Marbury in precedential value? Shortly after the ruling, it was expressly overruled by amendment, something that rarely happens to the S. Ct. (see Chisolm and the 11th... you might want to ask Prof. Barnett about that one!). Anyway, Scott is one of those cases that is never cited. I am certain that when the edificies of modern SDP law were being built in the 1930s (and, even if not by name, with the Lochner court), they weren't citing to the wonderful Scott holding. Lawyers weren't arguing it in their briefs, judges weren't citing it... there was a collective, "Let's just pretend this didn't happen."

The only precedential value it has is for guilt-by-association, used by Bork inaccurately. Scott is bad, Scott mentions SDP, therefore SDP is bad. Voila!

ps- Too bad you can't use the 'follow the flag' argument from Scott. Useful against Gitmo, don't you think?
7.20.2007 11:27am
LGVV:
It's not guilt by association. Dred Scott USED substantive due process (among other arguments) to invalidate a wide swath of Congressional law in an attempt to shelter perhaps the worst human rights violation in American history. The decision was a result of the reasoning. It might not have been an inevitable result, and other reasoning could have reached the same conclusion, but the causality is still there.

If you roll down a bumpy hill and get hurt, you might infer that rolling down bumpy hills is dangerous.
7.20.2007 12:37pm
Mark Field (mail):

One of the implications of this fact drawn out in Calder v. Bull was that the law cannot take from A to give to B.


Orth's book, recommended above, treats this as the foundation example of substantive due process.
7.20.2007 1:10pm
Colin (mail):
Dred Scott USED substantive due process (among other arguments) to invalidate a wide swath of Congressional law in an attempt to shelter perhaps the worst human rights violation in American history. The decision was a result of the reasoning. It might not have been an inevitable result, and other reasoning could have reached the same conclusion, but the causality is still there.

Only for a non-causal definition of "causality." If I decide to beat my neighbor, and select a hammer as the tool with which to do so, then "causality" doesn't attach to the hammer. When the result would have been the same regardless of the tool, the tool didn't cause the result. To support your assertion that "[i]t's not guilt by association," you'd need to show that the result in Dred Scott would have been different without the use of SDP. Your acknowledgment that "other reasoning could have reached the same conclusion" shows that there's no causality here.
7.20.2007 2:38pm
Dilan Esper (mail) (www):
Interesting that Scalia says something is in Dred Scott that isn't there.

One thing that IS in there is that Taney, the overt racist, uses the term "persons of color", which is now considered one of the more politically correct terms to refer to racial minorities.

I never liked that term anyway-- sounds too much like "colored people"-- but the connection to Taney seals the deal for me.
7.20.2007 7:06pm
Vova Shklovsky (mail):
Brett, I'm unfortunately not knowledgeable enough to provide any examples, nor am I implying that one answer or another is correct.

My point was that the question of Scott being the first example or not is itself very important. So, a statement such as "Whether it was in fact the "first" or not (and I believe it was), it is properly cited as the epicenter of modern substantive due process" entirely skips the argument that David presented by assuming that is either wrong or irrelevant.
7.20.2007 8:13pm
Karl Spence (mail) (www):
Historian Bernard Schwartz, hardly an opponent of "substantive due process," writes: "To today's public lawyer, the Due Process Clause so plainly imposes the most important substantive limitation upon governmental power that he may forget how limited due process was in its original connotation. When Madison wrote the Due Process Clause into his first draft of the Bill of Rights, he thought of due process only as a procedural guaranty. His view was doubtless that expressed by Hamilton in 1787 on a New York law [guaranteeing due process]. ... 'The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature,' said Hamilton."

Nevertheless, a New York court in 1856 used that state's Due Process clause to overturn an early prohibition law as depriving people of "the rights of property ... in intoxicating liquors." Even though New York's "Act for the prevention of intemperance, pauperism and crime" relied for enforcement on "the forms which belong to 'due process of law,' " the court ruled in Wynehamer v. People that it violated "the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power."

Schwartz writes that "it was essentially the Wynehamer approach that Chief Justice Taney followed [in Dred Scott v. Sandford, 19 How. 393] when he held that Congress lacked the power to deal with slavery in the territories by enactment of the Missouri Compromise of 1820. According to Taney, congressional authority to regulate the territories was restricted by the protection given property rights by the Due Process Clause of the Fifth Amendment." ———Schwartz, The American Heritage History of The Law in America, pp. 69-72.

Neither the New York temperance law nor the Missouri Compromise, however, attempted any restriction of what constitutional scholars would end up inanely calling "procedural due process." No tippler or tavern owner could be molested under the former except through due process, nor could any master lose his slave under the latter except through due process. When Dred Scott (with the active support of his nominal owners) pressed his suit for freedom on the grounds that he had once been taken by his master into a territory the Missouri Compromise had made free soil, the very involvement in the case of attorneys, judges, briefs, writs and rulings all bespoke due process of law.

By itself, the fact that Dred Scott was not the first court case to convert Due Process into Due Substance lends no legitimacy whatsoever to "substantive due process." If the ratifiers of the Fifth Amendment understood its Due Process Clause to apply exclusively to "the process and proceedings of the courts of justice," as Hamilton put it, then by right it "can never be referred to an act of the legislature" --- no matter what subsequent court rulings may hold.
7.20.2007 9:22pm