My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was. Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban…