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NATHAN S. CHAPMAN & MICHAEL W. MCCONNELL Due Process as Separation of Powers AUTHORS. Nathan S. Chapman, Executive Director, Stanford Constitutional Law Center, Law Fellow, Stanford Law School; Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School. Thank you to Samuel Bray, William Baude, Robert Gordon, Larry Kramer, and Matthew Shapiro. 1 Due Process as Separation of Powers INTRODUCTION I. DUE PROCESS AND THE LEGISLATURE IN ENGLISH AND EARLY AMERICAN LAW A. Magna Charta and Coke B. English Disputes About Parliament’s Power C. Revolutionary Arguments that Parliament Violated the Law of the Land D. Early State Experiments with Legislative Supremacy 1. Holmes v. Walton 2. Trevett v. Weeden 3. Bayard v. Singleton 4. Alexander Hamilton on Due Process II. DUE PROCESS OF LAW AS A CONSTITUTIONAL CONSTRAINT ON AMERICAN LEGISLATURES A. The Constitution 1. General and Specific Provisions 2. The Due Process Clause B. Early Due Process Interpretations 1. Laws Purporting to Authorize Due Process Violations 2. Special or Retrospective Bills that Deprive Persons of Rights III. APPLYING DUE PROCESS AS SEPARATION OF POWERS A. Analysis B. Applications 1. Modern “Substantive” Due Process 2. Legislative Acts that Violate Due Process 3. Executive Acts that Violate Due Process CONCLUSION INTRODUCTION Scholars are showing renewed interest in the original understanding of the Due Process Clauses, and especially in whether that understanding is consistent with the Supreme Court’s modern practice of substantive due process. Not long ago, most scholars accepted John Hart Ely’s clever dismissal of the idea of substantive due process as an 2 “oxymoron,” on the order of “green pastel redness” 1 –with those of an originalist bent concluding that substantive due process is illegitimate 2 and those of a substantive due process bent concluding that originalism is wrongheaded. 3 Now, with the prestige of originalist interpretation (of various types) on the rise, even on the progressive left, 4 we are seeing more serious attempts to discern whether an educated member of the public at the time of the founding, 5 or perhaps at the time of adoption of the Fourteenth Amendment, 6 would have understood the phrase “due process” as having a substantive component,7 meaning that judges would invalidate legislation on the basis of their perceptions of natural justice, reasonableness, or inalienable natural rights. Opponents of substantive due process tend to argue that due process meant neither more nor less than that officers of the government must follow the law of the land. Because Parliament, and Congress and state legislatures after Independence, is the ultimate authority as to what the law of the land is, having power either to “declare” the common law or to legislate changes to it, by definition all acts of Parliament or the 8 legislatures conformed to the law of the land, and due process did not restrict them. 1 JOHN HART ELY , DEMOCRACY AND DISTRUST : A THEORY OF JUDICIAL REVIEW 18 (1980). See also Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982) (Posner, J.) (“substantive due process” is an “oxymoron”). 2 See, e.g. , Raoul Berger, “Law of the Land” Reconsidered , 74 NW. U.L. REV . 1 (1979); ROBERT BORK , THE TEMPTING OF AMERICA (1990); RAOUL BERGER , GOVERNMENT BY JUDICIARY : THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 21-44 (1997). 3 LAURA KALMAN , THE STRANGE CAREER OF LEGAL LIBERALISM 71-77 (1996); see, e.g., MICHAEL PERRY , THE CONSTITUTION , THE COURTS , AND HUMAN RIGHTS : AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982) (defending judicial lawmaking on extraconstitutional grounds); RONALD DWORKIN , TAKING RIGHTS SERIOUSLY (1977); Thomas C. Grey, Do We Have an Unwritten Constitution? , 27 STAN . L. REV . 703 (1975) (courts should not rely exclusively on the written constitution); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 STAN . L. REV . 843 (1978) (arguing on historical grounds that there is an unwritten constitution). 4 Lawrence B. Solum, District of Columbia v. Heller and Originalism , 103 Nw. L. Rev. 923, 932 (2009); Keith Whittington, The New Originalism , 2 Geo. J.L. & Pub. Pol’y 599, 605 (2004) (“Broadly originalist arguments are widespread and are increasingly common in liberal and progressive theory.”) (quotation omitted). See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) (Stevens, J., dissenting); AKHIL REED AMAR , AMERICA ’S CONSTITUTION : A BIOGRAPHY (2006); JACK M. BALKIN , CONSTITUTIONAL REDEMPTION 228 (2011); Jack M. Balkin, Framework Originalism and the Living Constitution , 103 Nw. L. Rev. 549 (2009); Jack M. Balkin, Abortion and Original Meaning , 24 Const. Comment. 291 (2007). See also the work of the Constitutional Accountability Center. 5 Frederick Mark Geddicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment , 58 EMORY L.J. 585 (2009) (“law” in “due process of law” was understood to refer to an act that complies with natural law); Robert Riggs, Substantive Due Process in 1791 , 1990 WIS . L. REV . 941. 6 Ryan C. Williams, The One and Only Substantive Due Process Clause , 120 YALE L.J. 408 (2010) (due process of law did not include vested rights or general law theories in 1791, but it did by 1686). 7 CHESTER JAMES ANTIEAU , THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT ch. 18 (1997); James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process , 16 CONST . COMMENT . 315 (1999); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 STAN . L. REV . 843 (1978); Alfred Hill, The Political Dimension of Constitutional Adjudication , 63 S. CAL . L. REV . 1237, 1270-73, 1322-23 (1990);; Cf. Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. CHI . L. REV . 1127, 1132 (1987); RODNEY L. MOTT , DUE PROCESS OF LAW 34-36, 74-75, 123-24, 159-61 (1926). 8 The most important statement of this position is Justice Hugo Black’s dissenting opinion in In Re Winship, 397 U.s. 358, 378-82 (1970). 3 Under this view, there could be no judicial review of legislation under the Due Process Clause. Supporters of substantive due process on originalist grounds tend to see at least the glimmer of the modern practice in any judicial decision reviewing the acts of a legislature on due process grounds, and in particular, in early decisions holding that legislation violated certain “vested rights.” Ryan Williams recently published an essay in this journal that presents a new twist on these accounts. According to Williams, the evidence shows that there was no widespread acceptance of the application of due process to the legislative branch (hence no substantive due process) as of the adoption of the Fifth Amendment in 1791, but that substantive understandings had become prevalent by adoption of the Fourteenth Amendment in 1868. This leads to the intriguing possibility that, as a matter of original understanding, substantive due process is legitimate as applied to state but not to federal legislation. We believe that none of these positions is entirely correct. To be sure, courts, statesmen, and educated observers used the term “due process of law” and the closely related term “law of the land” in several ways, and often disagreed about its meaning. Nonetheless, the meaning of these terms evolved in discernible ways over a several hundred year period, driven – we argue – by the increasing institutional separation of law-making from law-enforcing and law-interpreting. The separation of legislative, executive, and judicial powers served to clarify what is meant by the rule of law, and by extension the idea of due process of law. 9 Application to the executive came first, and 9 We are not the first to note the importance of the separation of powers in the original understanding of due process of law, but not many have given it pride of place, with the notable exception of Wallace Mendelson, A Missing Link in the Evolution of Due Process , 10 VAND . L. REV . 125, 136 (1956) (“Separation with its procedural connotations had been a ready, if narrow, bridge between orthodox procedural due process and the doctrine of vested interests in an age when legislatures habitually interfered with property by crude retrospective and special, i.e., quasi-judicial, measures.”). Mendelson’s thesis is that separation of powers allowed the evolution of due process of law. The causal connection may be more complicated than that: a commitment to the law of the land enabled colonial Americans to argue that Parliament had overreached well before the judicial power had been separated from it. In would appear that separation of powers and due process of law developed together. See infra at ___ Others have recognized that separation of powers was part of how some people thought about due process, but have not attempted to maintain that it was central to a plausible original understanding of it . See Williams, supra note [---] at 424; Harrison, supra note [--], at 520-24; Nathan N. Frost, Rachel Beth Klein- Levine & Thomas B. McAffee, Courts Over Constitutions Revisited: Unwritten Constitutionalism in the States , 2004 UTAH L. REV . 333, 382 (“The doctrine of vested rights grew out of a recognition that when legislatures act like courts, the potential for abuse grows not only by the omission of some particular procedure in question -- such as trial by jury--but also by the departure from separation of powers.”); JOHN V. ORTH , DUE PROCESS OF LAW 48-49 (2003) (“The attempted exercise of [the judicial] power by another branch of government could be described as a procedural violation: just as a man could not be made a judge in his own case, so one who was not a judge could not make judicial rulings.”); John V.
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