Evan Bernick and Randy Barnett have written a wonderful paper called “No Arbitrary Power: an Originalist Theory of the Due Process of Law” concerning the meaning of the phrase “due process of law” in the Fifth Amendment. They focus on the last two words and present historical sources that accurately demonstrate that the clause required a judicial hearing before a neutral judge in which the individual whose rights are to be taken must be given the chance to argue that the statute they are accused of violating is not actually the law. Andrew Hyman accused their paper, and Justice Gorsuch, of misunderstanding Sir Edward Coke, to require that “current law is just as good as old English law was.” He also said that “substantive due process” “has virtually no basis in the words of the Fifth and Fourteenth Amendments, but rather is the result of wishful judicial thinking and mindless adherence to flawed precedents.” Andrew Hyman’s criticism of Bernick and Barnett’s paper is mistaken as to what their paper is claiming (as Bernick has clarified). But Hyman is also wrong to reject any originalist basis for so-called “substantive due process.” This post will focus on making an originalist argument for so-called “substantive due process.”

Sadly, we are stuck with this substantive vs. procedural due process distinction, which is really a 20th century creation, no Founder would have used such phrases. There are both procedural aspects and substantive aspects in both Magna Carta 39th/29th chapters and the Due Process Clauses of the Fifth and Fourteenth Amendments. Those subjects given substantive protection are listed explicitly in the text. In the 1297 Magna Carta, it was a person’s rights not to be “taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined” while for the Fifth and Fourteenth Amendments it is a person’s right to “life, liberty, or property.” The procedural aspects appear in the phrases “by the law of the land” or “without due process of law,” respectively. The substantive aspects hold that efforts to take away one of these rights without going through courts of law are invalid. This cannot be done lawfully by the legislature consistent with these clauses. The procedural aspects hold that as long as a person is first convicted of a crime by a court of law, all of these rights can be taken (see, e.g., executions taking a person’s right to life).

I agree with Barnett and Bernick as to the meaning of “due process of law.” But their paper doesn’t discuss the meaning of the words “life, liberty, or property.” I asked them and they appear to believe “liberty” means lack of imprisonment, which is the source of my disagreement. I think it is more than this. Sir Edward Coke defines the word “liberties” (as used in Magna Carta, which everyone agrees formed the basis for the Fifth and Fourteenth Amendments Due Process Clauses) on page 47 of the Second Part of the Institutes. Coke says “liberties” has three parts, (1) the laws of the realm, (2) the freedoms of the subjects, and (3) the privileges of the subjects given to them by the King.

The first part is fairly straightforward; you have all those liberty rights the laws passed by the legislature have given you. These liberty rights cannot be taken from you as an individual without conviction in a court of law, but they can be repealed for everyone (in which case the law no longer gives anyone these rights). It was especially important that the King alone could not take these rights away. The third is also fairly straightforward; you have a right in those things like patents which were lawfully given to you by the executive. But the second adds a lot of interesting aspects to the right to liberty. Here are the words used by Coke to describe this part (translated slightly into modern English):

It signifies the freedoms, that the Subjects of England have, for example, the Company of the Merchant Tailors of England, having power by their Charter to make ordinances, made an ordinance, that every brother of the same Society should put the one half of his clothes to be dressed by some Clothworker free of the same Company, upon pain to forfeit and it was adjudged that this ordinance was against Law, because it was against the Liberty of the Subject, for every Subject hath freedom to put his clothes to be dressed by whom he will and likewise of similar cases…

So likewise, and for the same reason, if a grant be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that grant is against the liberty, and freedom of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter.

Generally all monopolies are against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.

Notice that Coke distinguishes this right to the “freedoms, that the Subjects of England have” in section 2 as different than that granted in section 1 by the “Laws of the Realm,” for such freedoms go beyond that which is passed by statute. It also includes the traditionally understood ancient rights to freedom in the common law and the custom of England. Coke cites for this Davenant v. Hurdis, 72 Eng. Rep. 769 (King's Bench 1599), and the Case of Monopolies, both of which relied, at least in part, upon the common law to invalidate a patent grant of the King. Both of these cases were ruled upon before the statute of monopolies existed. (I would also suggest looking at The Case of the Tailors of Ipswich.) These were effectively an economic liberty interest in each of these cases according to the common law. In many ways the test spoken of by Coke in section 2 is similar to the modern Glucksberg test which says the Due Process Clause protects “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” While this test works for the Fourteenth Amendment (due to time for such liberties to be deeply rooted in American common law at the time the amendment was ratified), but for the Fifth Amendment the test should instead be those freedoms deeply rooted in English common law and custom at the time the Fifth Amendment was ratified.

To say that rights are “deeply rooted in this Nation’s history and tradition” or against the ancient rights in the common law or English custom does not fully specify what those rights that were respected actually are. One can say “just look at the relevant case law,” but again this doesn’t describe in even a general manner what was actually protected by this concept of a right to liberty.

When describing generally the freedom protected by the common law and English tradition at the time of the Founding, the U.S. Founders drew a distinction between “civil liberty” or “rightful liberty” rather than “natural liberty.” This right to “civil liberty” is at the core of the right to freedom that is deeply rooted in our history and traditions at the Founding. “Natural liberty” occurs before society exists and, as it does not restrain the individual’s actions at all, and so society could not exist if everyone had a right to this prior to a judgment in a court of law. Blackstone described the transition to civil liberty in society: “Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and not farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind.” Or as described by John Locke, “The first power—viz., of doing whatsoever he thought fit for the preservation of himself and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of Nature.”

When we are trying to generally describe what the word “liberty” meant as a constitutionally protected right to the Founders, civil liberty seems the most likely choice. Thomas Jefferson described “civil liberty” as: “unobstructed action according to our will, within the limits drawn around us by the equal rights of others.” Samael Adams wrote “The Framers of our happy Constitution while they gave due Attention to political, were not forgetful of Civil Liberty-that personal Freedom & those Rights of Property, which the meanest Citizen is intitled [sic] to.” At the Pennsylvania ratifying convention James Wilson remarked that “civil liberty is necessary to the perfection of civil government. Civil liberty is natural liberty itself, divested of only that part which, placed in the government, produces more good and happiness to the community than if it had remained in the individual.” Fisher Ames discussed civil liberty in the Massachusetts ratifying convention.

The definition of liberty as merely lack of imprisonment is simply inconsistent with how the word was used at the Founding. When Benjamin Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” Was he speaking merely of lack of imprisonment? When the Declaration of Independence said that all men are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It could not have been speaking merely of lack of imprisonment. Such a limited interpretation of the word liberty is simply inconsistent with how the Founders actually used the word.

It is also very important that the preamble of the Constitution referred to the “Blessings of Liberty to ourselves and our posterity,” which could not be read to refer only to lack of imprisonment. The traditional cannon of interpretation called the Cannon of Consistent Usage instructs that when the same word or phrase is used in a document it is presumed to have the same meaning. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear.” Smith v. United States, 508 U.S. 223, 233 (1993) (quoting United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988)).

Clearly this protection of a right to “liberty” can be taken away, but the Fifth and Fourteenth Amendments require that it can only be taken away after a court of law has found the person to have violated the law. If the legislature passes a law (or the executive gives an order) abolishing one of these liberty interests without first going through a court of law to find the individual to have violated the law, then the Due Process Clause has been violated. The fact that the individual is given a trial to determine if they should be sent to prison means that their right to not be sent to prison without a trial wasn’t violated, but their liberty interest, which the legislature abolished without trial, did violate the Due Process Clause.

An example can be seen in Korematsu, which should have been a perfect example of a violation of due process (in addition to equal protection). Executive Order 9066 by President Franklin D. Roosevelt effectively took away Japanese Americans’ rights to move freely (i.e. their liberty). Congress then added a penalty for failing to obey the order (again this legislation violated Korematsu’s Fifth Amendment right to liberty: he was prohibited from exercising his right to liberty to move around prior to being convicted of a trial). It should have been recognized by the Court, as it was in dissent by Justice Murphy, as a violation of his right to liberty prior to due process of law. Murphy recognized that in addition to violating equal protection, “It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process.” Korematsu was given a trial for having violated the statute, but the problem was that the statute itself had violated his due process rights when it prohibited him from exercising his right to liberty. At the time the statute limited his liberty (by limiting his movement), Korematsu had not yet been provided due process in a court of law.

There are certain liberty rights, including economic liberty rights, such as the right to earn a living in a lawful profession, which cannot be taken away except through a court of law. The trial in a court of law must occur prior to the right to liberty being taken from the individual. Until such a person is, for instance, convicted of a crime, they have these economic liberty rights that Coke spoke of.

Parliament could abolish Magna Carta by majority vote if it wanted to, so it clearly didn’t bind Parliament. Instead, English judges construed other legislation so as not to violate Magna Carta. The English judges required something akin to a clear statement rule; if Parliament wished to abrogate Magna Carta, it would have to say so explicitly. Of course, Parliament never would do that for political reasons, so Magna Carta effectively bound all future legislation. But while these requirements were slight on Parliament (requiring only a clear statement to abrogate), the King and municipal governments and guilds were strictly bound by Magna Carta as they could not abrogate it. This changed when the same language was added to the U.S. Constitution. Congress cannot abolish the Fifth Amendment by majority vote, and if there is a conflict, the Fifth Amendment invalidates the statute. So what was once a presumption for the legislature became a binding rule that could not be changed without a constitutional amendment, but it still has the same meaning even though the ability of the legislature to abrogate it with a clear statement has changed.

As Coke wrote, “Generally all monopolies are against [Magna Carta]”, not just because they are “against the Law of the Land” but also “they are against the liberty and freedom of the Subject.” These economic liberty rights were protected by Magna Carta under English common law and should be protected by courts today.