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No Arbitrary Power: An Originalist Theory of the Due Process of Law

A new paper explaining why the original meaning of the "due process of law" requires a substantive process.


Evan Bernick and I have just posted the second of our projected three-paper series on "Good Faith Constitutionalism," in which we identify the constraints on government officials who exercise discretionary powers. In our first article, The Letter and the Spirit: A Unified Theory of Originalism–now forthcoming in the Georgetown Law Journal–we consider the constraints imposed on the power of the judiciary to implement the original meaning of the text. In our new piece, No Arbitrary Power: An Originalist Theory of the Due Process of Law, we identify the original meaning of the Due Process of Law Clauses of the 5th and 14th Amendments, and the limits these clauses impose on the discretionary power of federal and state legislatures to deprive people of life, liberty or property. Like some other recent originalist scholars we discuss, we contend that, while the "due process of law," is indeed "procedural," the judicial procedure it guarantees includes a particular kind of "substantive" evaluation of a legislative act to ensure that it is truly a "law." (We differ somewhat from these scholars on the precise scope of this inquiry.) So the distinction between procedural and substantive due process is ultimately misleading and unhelpful to understand the exact nature of the "substantive procedure" that is guaranteed by the due process of law.

The core of our theory is succinctly summarized in this quote by John Locke with which we begin our piece and from which we took our title "No Abitrary Power":

A man . . . cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this.

To be a law, an act of the legislature must not be arbitrary, and a person being deprived of life, liberty or property is entitled to a judicial process in which the abitrariness of a legislative act can be evaluated. Here is the abstract:

"Due process of law" is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment's Due Process of Law Clauses are solely "process" guarantees and don't constrain the "substance" of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there's a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction.

We begin by investigating the "letter" of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses' original function — their "spirit" — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the "due process of law" in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states' reserved powers, acknowledging the flaws in the "police-power" jurisprudence associated with the so-called "Lochner era" and we delineate an approach that will better safeguard all "person(s)" against arbitrary power.

By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators' pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

Download it here.