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The Fifth and Fourteenth Amendments prohibit deprivations of life, liberty, or property “without due process of law.” The classic objection to the view that the Due Process Clause offers something beyond a guarantee of fair procedures is textual. To use John Hart Ely’s formulation, "'substantive due process' is a contradiction in terms – sort of like 'green, pastel, redness.'" Sandefur tells us that Professor Ely and his fellow travelers fail to understand what the last word of the Due Process Clause means. He writes that “law” is not merely “a formal criterion”; it is also “the opposite of arbitrariness,” and requires “the use of governmental power in the service of a rational, general public principle.”

This is not the way we use the term “law” in common parlance. We ordinarily regard as “law” whatever rules have been enacted consistent with the procedural requirements for lawmaking, whether we consider them justified or not. We speak of “unjust laws,” “unfair laws,” or “arbitrary laws” without thinking we utter oxymorons. Our Constitution also uses the term “law” in this sense. Article I tells us that if a bill is passed by both houses of Congress and signed by the president, or if the president’s veto is overridden, “it shall become Law.” The only requisites for the existence of “law,” in Constitution’s view, are procedural.

To be sure, the Constitution places substantive limitations on legislative power; thus, as Sandefur notes, the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Even so, the First Amendment does not seem to regard a “law . . . abridging freedom of speech” as an oxymoron; the First Amendment treats even an enactment abridging the freedom of speech is as a “law,” albeit one beyond congressional power. In just this vein, Chief Justice Marshall famously wrote in Marbury v. Madison that “a law repugnant to the constitution is void”; but he did not write that “a law repugnant to the constitution” is not even a law. In any event, even if laws that exceed the enumerated limitations on legislative power are not properly regarded as “law,” this does not prove that the Due Process Clause is properly understood as among those limitations. The First Amendment expressly limits the scope of legislative power; the Due Process Clause does not. The text of the Due Process Clause is no better than ambiguous when it comes to “substantive due process.”

But put all this aside and assume that Sandefur is correct that a “law is the opposite of arbitrariness,” and requires “the use of government power in the service of a rational, general public principle.” Even so, this claim does not come close to justifying the doctrine of substantive due process that Sandefur seeks to defend.

Consider one of the cases that Sandefur offers as an exemplar of substantive due process—the Supreme Court’s decision in Lawrence v. Texas invaliding a statutory prohibition on consensual, same-sex sodomy. Whatever one thinks of the statute at issue in Lawrence, it seems to be anything but “arbitrary”; indeed, it seems quite plainly to use “governmental power in the service of a rational, general public principle.” Texas’s prohibition on sodomy was not enacted on a whim; it reflected a longstanding view that the law should encourage procreative relationships by, among other things, proscribing homosexual activity. As it happens, I have considerable sympathy for the outcome in Lawrence; but I do not think that it can be justified merely by branding the Texas statute “arbitrary,” or unrelated to any “rational, general principle.” Using law to encourage favored relationships and proscribe disfavored ones strikes me as a “general public principle,” as is the desire to promote procreative relationships and activities. It takes more than an embrace of Sandefur’s counterintuitive definition of “law” to justify Lawrence.

History

Sandefur claims more than unadorned text in support of his conception of substantive due process; he tells us that history is on his side. Sandefur argues that his view has deep historical roots, citing as examples Daniel Webster’s argument in the Dartmouth College case and Justice Chase’s opinion in Calder v. Bull.

More than usual caution is required whenever one encounters lawyers (or law professors) advancing historical arguments. Lawyers are, by training and temperament, advocates; they seize on evidence that seems to support their case and ignore or minimize anything else. It is not for nothing that we are often warned of the perils of “law office history.” So it is here.

As it happens, neither Webster in Dartmouth College nor Chase in Calder v. Bull invoked the Due Process Clause to support their claim of inherent limits on the legislative power. Moreover, one finds nowhere in the legislative history of the Fifth and Fourteenth Amendments any mention of the conception of due process advanced by Sandefur.

To be sure, there is some historical support for Sandefur’s view. Lord Coke, for example, seems to have regarded the English antecedents of our Due Process Clause as a limitation of legislative power. Coke’s view, however, was unorthodox. By the time of our Constitution’s framing, the generally held view was that the legislative power was supreme, and not subject to implied and judicially enforceable limitations in the name of “due process of law” or otherwise. This, for example, was the position taken in William Blackstone’s treatise, the most influential of its kind in the framing era. Similarly, the most influential early American treatise writers—such as Justice Joseph Story and Chancellor James Kent—described due process in purely procedural terms.

By the time of the Fourteenth Amendment, there were a few cases and commentaries that described due process in more substantive terms. Most notable was the Supreme Court’s 1856 decision in Dred Scott v. Sandford, holding that federal legislation prohibiting slavery in federal territories deprived slaveholders of property without due process of law. Yet, in the Court’s first opinion to treat at any length with the Fourteenth Amendment’s Due Process Clause, the 1872 decision in The Slaughter-House Cases upholding a state legislative grant of monopoly rights to a private business, only Justice Bradley, in lone dissent, expressed anything like Sandefur’s view of substantive due process. To be sure, later in the nineteenth century, the notion that due process placed substantive limitations on governmental regulatory power came into vogue, but it is far from clear that this development rested on a deeply historically rooted conception of due process rather than the ideological predilections of the era’s judges.

My point is not that history argues against Sandefur’s conception of substantive due process; history on this point, as is often the case, is muddled. Instead, my point is that Sandefur cannot cherry-pick the evidence and then claim historical support for his conception of substantive due process. History is no better than a draw.

Prudence

If we are to embrace substantive due process, perhaps a conception of the judiciary’s role in ascertaining the limits of “law” should include a measure of prudence and intellectual humility. The fact that the Supreme Court’s first embrace of substantive due process came in Dred Scott should remind us of the perils in an understanding of due process that grants the judiciary a chancellor’s foot veto over everything that it regards as limiting freedom “without good reason.” The exercise of unaccountable power is always fraught with potential for abuse. Under the Constitution, legislators are not tyrants; they are always accountable at the next election, imperfect though that remedy may sometimes be. A life-tenured judiciary, however, is accountable to no one.

I have as high a regard for lawyers as one is likely to find; I even devote my professional energy to producing more of them. Yet I tremble at the power that Sandefur would have lawyers exercise when they ascend to the bench. The question of whether a garden-variety air-quality regulation amounts to an unwarranted interference with property rights or a sensible effort to force property owners to internalize the true costs of their activities rather than shifting them to those who live downwind—who may pay those costs with their lives—can contain enormous complexities. There is little reason to expect judges to have the expertise to resolve them with anything approaching an acceptable risk of error. Even worse, the judiciary is particularly poor rectifying its mistakes. Legislators who make bad policy usually hear about their mistakes soon enough, but our system of adjudication does not require the Supreme Court to monitor the consequences of its decision, or to defend them at the next election. The precedential power of judicial decisions, moreover, is a potent inhibition on the ability of the judiciary to recognize and correct mistakes.

Deciding whether a law is supported by “good reason” is the essence of policymaking. Our Constitution guarantees a republican form of government, and in a republic, policy is made by those who are politically accountable for their decisions. Sandefur’s conception of due process of law, however, creates a judicial platonic guardianship that must approve every policy decision. To my eye, this looks more like the due process of the ayatollahs than the due process of our Constitution. Leaving assessments of the wisdom of the “law” to the next election is surely one aspect of “due process of law” in a republic. This what the Court means when it writes: “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted (Cleburne, TX v. Cleburne Living Center)."

This is not to say that I regard Sandefur’s conception of due process as entirely wrongheaded. As Americans, we are deeply attached to a conception of individual rights; we do not think that every decision should be made by majority vote. There is something to the view that certain matters are not properly left to majoritarian resolution; reserving these for the realm of individual conscience may well be an aspect of “due process of law.” Drawing the line between what is properly the business of the majority and what must be left to the conscience of the individual, however, is no easy matter. This is the difficult task of substantive due process. We should face up to those difficulties with prudence and humility. My conception of “due process” includes generous dollops of these virtues. Sandefur’s version, it seems, not so much.

I think that’s wrong. As I have argued recently in the Harvard Journal of Law and Public Policy, substantive due process is as legitimate—indeed, as crucial—a part of our Constitution as the principle of, say, separation of powers. Note that the phrase “separation of powers” doesn’t appear in the Constitution; it’s an abstract principle one infers from the structure, ideas, and history of the document. The same is true of substantive due process.

Perhaps saddest of all, it often seems that the most vocal critics of substantive due process don’t even understand how the doctrine works in the first place. My point here is to explain briefly how the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” means not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”

The confusion may be partly due to sloppy language. “Substantive due process” is an epithet, coined in the New Deal era by Progressive legal scholars who opposed the theory. The judges they attacked for embracing the doctrine—people like Justice Stephen J. Field—would not have recognized the term. They just called it “due process of law.” Also confusing is that lawyers today habitually refer to the “Due Process Clause,” leaving out the most important part of that clause: the phrase “of law.” The Constitution does not just guarantee “process”; it guarantees a process of law. To understand what “substantive due process” means—even if one rejects the idea—one must not forget that what this Clause promises is that government will accord us lawful treatment; that it will only take away life, liberty, or property, in accordance with principles of lawfulness. So our first step is to ask, what does it mean for government to pledge to deal with us in a lawful manner?

Law as the opposite of arbitrariness

What is “law”? Philosophers have debated this question for many years, and while they may disagree on certain points, some basic answers have emerged: law is the use of government’s coercive powers in the service of some general principle of the public good. Aristotle famously distinguished between lawless, corrupt regimes where the people were governed with “regard only [for] the interests of the rulers”—and lawful, healthy regimes “which have a regard to the common interest.” The former is governed by specific commands to particular persons to do particular things, or by actions that lack any general purpose, or only to the benefit those who wield power. They are “despotic”—more analogous to the rule of a master over a slave. Lawful regimes, by contrast, are characterized by general rules that govern for the benefit of all. Or, as a more recent authority, Cass Sunstein, has put it, “many of the most important clauses of the Constitution,” including the Due Process Clause, are “focused on a single underlying evil: the distribution of resources or opportunities to one group rather than another solely on the ground that those favored have exercised the raw political power to obtain what they want.” This is the distinction between “the rule of law and the rule of men.”

More basically, law is the opposite of arbitrariness; it is not the self-serving use of force by those who wield it. It is not ipse dixit—not merely that someone in power has said so. And this is both a substantive and a formal criterion: if government imposes a rule without following the procedures whereby a rule obtains its official character, the final product cannot be called law; likewise, when government imposes something that it calls legislation which is nevertheless arbitrary, self-serving, ipse dixit, that, too, cannot be called law, notwithstanding any procedural formalities. As Daniel Webster famously said in his argument in the 1819 Dartmouth College case, the promise of due process of law means

that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Every thing which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature.

More simply, due process of law means government may not limit our freedom without good reason. What qualifies as a “good reason” is a question answered by reference to political and legal principles. Not everything the legislature promulgates is, on that account, a good reason. According citizens due process of law means to treat them, not in accordance with whatever the majority happens to desire at any particular time, or to serve the ruler’s (or rulers’) self-interest. Thus the overlap of “procedure” and “substance” is inevitable: to be treated lawfully means to be treated in accordance (procedural) with general, public principles (substantive). Let me make this last point clearer.

The logic of substantive due process

Suppose Congress passed a bill—say, a new tax—which the President vetoes. Having been vetoed, that bill does not become not a law, for procedural reasons: the shortcoming that deprives it of status as law is entirely formal, not substantive. It doesn’t depend on the bill’s content, but on rules of promulgation. If the IRS were to try to enforce the tax by punishing someone who doesn’t pay it, the punishment would be unlawful because it is unauthorized: the IRS would be enforcing something that is not law, thus depriving the citizen of liberty without due process of law.

The same approach holds where a purported law fails for substantive, instead of procedural, reasons. Thus, imagine Congress were to pass a bill, and the President were to sign it, establishing an official religion for the United States. Since the First Amendment denies Congress power to make such a law, no matter what procedural steps it takes, the resulting statute would have no claim to status as law. And if the sheriff were to arrest a dissenter for violating it, he would be depriving that person of liberty without due process of law, just as in the first hypothetical. Here, the sheriff’s purported authority for arresting the citizen fails not because of any formal shortcomings, but because the substance of the purported law is such that it cannot claim the character of law.

These two examples are relatively easy because they rest on explicit constitutional limits on government power. But the same logic holds with regard to implicit or inherent limits on government power. These implicit limits have been the sources of the major battles over substantive due process. But even if one disagrees as to what those limits might be, the argument follows a plain logical form: if the legislature passes a statute that it lacks authority to make, that statute has no standing as law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law.

Implicit limits on lawmaking authority are commonplace. In Clinton v. City of New York, for example, the Supreme Court ruled that the Constitution does not allow Congress to give the president a line-item veto, even though it does not explicitly prohibit such a thing. The reason is that the Constitution sets forth in detail the procedure for making bills into laws, and “is silent on the subject” of alternative methods. This “constitutional silence” is “equivalent to an express prohibition.” Thus the Constitution implicitly bars Congress from devising different methods for making or vetoing laws.

If there are inherent restrictions on the procedures by which a bill can become a law, then there would seem no denying that there are also implicit limits on the content of laws that can be made. If law is the opposite of arbitrariness, then the legislature cannot get around the prohibition on arbitrariness by simply labeling an arbitrary act “law.”

Arbitrators and bank robbers

Are there implicit limits on the kinds of laws the legislature can pass? Consider—as the Founding Fathers often did—some analogies to contract law. In arbitration law, an arbitrator derives his authority from the contract between the parties, but that contract can limit the arbitrator’s authority either explicitly or implicitly. As the Seventh Circuit has observed:

A suit to throw out a labor arbitrator’s award is…a suit to enforce the labor contract that contained the clause authorizing the arbitration of disputes arising out of the contract…. [T]he plaintiff normally will be pointing to implicit or explicit limits that the contract places on the arbitrator’s authority—principally that he was to interpret the contract and not go off on a frolic of his own—and arguing that the arbitrator exceeded those limits.

An arbitration decision that exceeds the implicit limits of the contract is unauthorized and has no validity.

Or consider a bank guard. Classical liberals like the Framers envisioned government as akin to a guard: the people in society, anxious to protect their resources and freedoms, “hire” the government to protect them just as the owner of a bank would hire an armed guard. But while this may prevent robbery, the bank owner now has a new problem: he has allowed someone in his bank with a gun, and the guard might give in to temptation and rob the bank himself. What happens then?

Something very like this actually happened in Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp., a Florida case in which a bank contracted with a detective agency to provide a guard, who then conspired with third parties to rob the bank. The bank sued the detective agency on respondeat superior grounds, but the court rejected this argument because the guard’s actions were “[a] classic case of an employee acting outside the scope of his employment. The subject employee was hired…to guard the bank which he, in fact, conspired to rob. In this endeavor, we think the employee was plainly off on a frolic of his own, [and] was in no way furthering the interests of his employer.”

But notice: the guard’s employment contract almost certainly included no explicit prohibition on robbing the bank. (Who would think of such a thing?) Yet the court rightly concluded that such a prohibition was implicit in the employment contract: it arose from the logic of the contract itself. The whole point of hiring him was to ensure against robbery. So when the guard betrayed these purposes, he went beyond the scope of his legitimate authority—he acted ultra vires—beyond his powers.

Where do the inherent limits on government action come from? They lie in the word “law.” Law is the use of government power in the service of a rational, general, public principle. A government action that lacks these elements is not law; it's something else. As Randy Barnett put it in a different context, “the qualities must go in before the name ‘law’ goes on.” So a government action that does not serve a rational principle of the public good is not a law, and thus deprives persons of life, liberty, or property without due process of law.

The Constitution, too, is a law. Thus by promising that government will accord us due process of law, the Constitution not only blocks government from breaching the explicit boundaries on its authority, but also from violating inherent limits that arise from the logic of the constitutional “contract” itself. The Constitution is the employment contract by which government is hired to protect society’s bank from being robbed. Implicit in that contract is the principle that government may not rob the bank itself: may not violate individual rights, or act in its own self-interest, or serve those who have only exercised raw political power to obtain what they want. This is what Justice Samuel Chase meant when he wrote in 1798, in one of the classic statements of substantive due process, that “[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power,” such as if the legislature attempted to violate the rights “for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact; cannot be considered a rightful exercise of legislative authority.” Or, as the Supreme Court explained almost a century later, “Arbitrary power…is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. [Enforcing] the limitations imposed by our constitutional law upon the action of the governments, both State and national…is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.”

Procedural due process is a subset of substantive due process

Critics typically differentiate “substantive” from “procedural” due process, dismissing the former as philosophical hot air, and contending that the Constitution guarantees only procedural safeguards. But if I’m right that “due process of law” is best seen as a pledge against arbitrary or unauthorized government action, then these procedural aspects fit into a larger picture: they are a subset of the overall promise of lawful treatment. The modern, process-only interpretation of the Due Process Clause, by contrast, is unable to connect the procedural requirements with any deeper principle. Why accord people any procedural formalities unless we are committed to what Justice Thomas calls a “substantive guarantee against ‘unfairness’”? Without a substantive guarantee, a coin toss would suffice as a trial.

Indeed, unless it has some substantive fairness, a “trial” wouldn’t even be a trial; it would be something else. A lynch mob is generally seen as the opposite of procedural due process, but lynch mobs do abide by some rituals—often holding sham trials before imposing their predetermined verdict. The problem with lynch mobs isn’t the lack of procedure, but the fact that their “procedures” are not fair, general, or reasonable, and are thus substantively arbitrary. By contrast, a hearing that gives real effect to these substantive guarantees is still valid even if it fails to follow some typical procedural formality. Courts call this the harmless error rule, which “focus[es] on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Procedural formalities are not alone sufficient to qualify a government act as law.

To put this point differently, legal procedures are themselves composed of substantive steps or rules. What from a distance appear to be procedural guarantees are, on close examination, actually clusters of substantive guarantees. One might think of a trial as a procedural right, but a trial is composed of certain substantive rights—the right to cross-examine witnesses, the right to be represented by an attorney, the right not to be compelled to testify against oneself. What’s more, the trial as a whole is one substantive element in the broader right to not be treated arbitrarily.

In short, it’s precisely because the Due Process Clause is a “repository of substantive guarantees against ‘unfairness,’” that we have interpreted it to require fair trials, among other things. If it didn’t guarantee against unfairness, then whatever protections it did provide would hardly be the protection of law. Citizens are entitled to procedures only because they are entitled to lawful treatment.

Two examples

I’ll close with two examples of substantive due process cases—neither of which use that term— Loan Association v. Topeka in 1876 and Lawrence v. Texas in 2003. In both cases, the Court had to decide whether the state was depriving people of property or liberty in a lawful way—that is, in the service of a general principle of public good—or whether it was depriving them of their rights in arbitrarily, without a good, public reason.

In Loan Association, the Court invalidated an attempt to take money from one group and give it to another, more politically influential group, for their own private benefit. This attempt to take with “one hand” the property of citizens and “with the other to bestow it upon favored individuals to aid private enterprises” was “none the less a robbery because it is done under the forms of law . . . . This is not legislation. It is a decree under legislative forms.” And if it is not legislation—if it is an arbitrary, unprincipled, self-serving exploitation of political power—then it takes property without due process of law. Likewise, in Lawrence, the state proscribed private, consensual, homosexual conduct, not to protect the general public from harm, but simply to impose a burden on a disfavored minority. The law at issue did not involve public conduct, or prostitution, or government benefits; it did not protect minors, or “persons who might be injured or coerced.” Instead, the law was what the late Prof. Peter Cicchino called “the legal enforcement of private bias, casting lawmaking as a kind of Nietzschean struggle of will, with various moral interest groups trying to gain legal enforcement of their beliefs without having to give reasons for those beliefs other than saying, ‘we believe it.’” Such an ipse dixit infringement on liberty—prohibiting private, consensual sexual activity just because the legislature wanted to—could not be characterized as due process of law.

Substantive due process makes sense: some things government does—arbitrary, irrational, self-serving exercises of political power—lack the elements that make a legislative pronouncement a “law.” These fail to fulfill the Constitution’s promise that the government will accord us due process of law. Deciding whether a challenged government act is or is not a law in this sense is fraught with normative considerations, of course, so it’s unsurprising that it would be the target of heated criticism. So, too, judges sometimes reach wrong decisions, here as in other things. But these critiques are equally true of principles like separation of powers, which also require judges to engage in complicated analyses and refer to normative and practical considerations outside the four corners of the Constitution. The task before lawyers and judges is to engage in such analyses, and lawyers are badly served by the contemporary fashion of ridiculing substantive due process, or dismissing normative deliberations as somehow not in our job description.