I did some research on ante-bellum notions of "due process" and "law of the
land" some years ago, never published, but the upshot was consistent with
what Mark says. The standard modern view captured by Ely's remark about
"substantive due process" being like "green pastel redness" or whatever is
an anachronism.
It wasn't so much that the "no A to B" and related outcomes were
characterized as substantive rather than procedural -- it was that the
substance/procedure distinction, so fundamental to us, wasn't widely
familiar until the late 19th century. There were not well-recognized
categories of "substantive law" and "procedure" until Bentham's analytical
jurisprudence, and the related "procedural" reforms (with the single "civil
action" meant to be "transsubstantive") got well-established in the
professional discourse, which happened mostly after the Civil War, and even
then took a while to sink in. The much older and still-familiar
right-remedy distinction is quite different -- remedies fall on the
"substantive law" side of the Benthamite substance/procedure split.
It's worth noting that there's an easy translation of the ante-bellum due
process law into our categories, by way of separation of powers. A statute
conveying Blackacre from A to B deprives A of property without "due process
of law" -- even if A has a right to a judicial trial on the issues whether
the claimant is B and the land is Blackacre -- because legislatures can
only legislate, and a bare decree like that isn't properly legislation.
This is the tack Corwin took in his early 20th C articles on the
ante-bellum case law, which allowed him to call most of those cases
"procedural due process" and (in good Progressive fashion) to stigmatize
"substantive due process" as a late and illegitimate arrival on the scene,
starting only with Dred Scott and with the NY case of Wynhamer in the late
1850s. But the ante-bellum lawyers and judges didn't feel any need to fit
their arguments to a substance vs. procedure template and as I recall, none
of them did so. I don't believe in all the contemporary attacks on Taney's
Dred Scott opinion you'll find anything about it evading the limit of the
due process clause to matters of procedure.
Tom Grey
Stanford Law School
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Mark Graber
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A fairly decent amount of research, IMHO, has demonstrated that due process
was, contra Ely, historically understood as having substantive content.
The classic violation of due process being a law that transferred title
from A to B. Orth's book on Due Process is good on this. See also,
Gillman, THE CONSTITUTION BESIEGED, James Ely's work and my "Naked Land
Transfers," in Vanderbilt 2000.
Mark A. Graber
