David Bernstein links to a fascinating article published in the Yale Law Journal by Ryan Williams titled “The One and Only Substantive Due Process Clause.” Here is David’s blurb:
Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment’s Due Process Clause was enacted it was widely accepted that “due process of law” also had a substantive meaning, and prohibited certain types of legislation.
In one sense, this seems to be an application of a doctrine I have discussed before, originalism at the right time. When talking about the 5th Amendment’s due process clause, consider how it was understood in 1791. When talking about the 14th amendment’s due process clause, and therefore any rights incorporated thereunder, consider how it was understood in 1868.
I just briefly flipped through this 105-page article and had a few items to flag.
Here is a short, concise conclusion:
Applying this default rule to the Fifth and Fourteenth Amendment Due Process Clauses yields a simple and straightforward conclusion: the original meaning of one, and only one, of the Constitution’s two Due Process Clauses— the Fourteenth Amendment Due Process Clause—encompassed a recognizable form of substantive due process. This divergent meanings model of the two Due Process Clauses has been dismissed and ignored for far too long. It is well past time for the model to assume its rightful position in the longstanding public debate regarding the historical legitimacy of substantive due process.
On the overlap between the Privileges or Immunities Clause and the Due Process Clause:
However, a conclusion that that provision was originally understood to protect substantive individual rights would not necessarily render a substantive understanding of the Due Process Clause superfluous or redundant. As Bingham and other members of the 39th Congress were careful to point out, the protections afforded by the Privileges or Immunities Clause were confined to “citizens” while the protections guaranteed by the Due Process and Equal Protection Clauses extended to all “persons,” including noncitizens.339 Thus, it would have been perfectly sensible to adopt separate provisions extending separate but overlapping sets of rights (including substantive rights), to the separate but overlapping sets of individuals protected by the Due Process and Privileges or Immunities Clauses.340 The distinction between “citizens” and “persons” does, however, suggest that the Privileges or Immunities Clause was likely designed to protect at least some rights of citizens that were not also encompassed by the provisions securing due process and equal protection to all “persons.”341
If the 5th and 14th Amendment due process clause, what about the 5th Amendment’s “equal protection” clause, as relied on in Bolling v. Sharpe, a case that has given me some serious angst over the years (see here and here):
Many interpreters may also be uncomfortable with the divergent meanings model’s tendency to undermine the substantive due process rationale of Bolling v. Sharpe, which remains the only recognized constitutional basis for enforcing equal protection norms against the federal government.458