Posted by David Bernstein:
Dred Scott and "Substantive Due Process":
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235490996
In The Tempting of America, Robert Bork claims that Justice Taney's
opinion in Dred Scott marked the "first appearance of in American
constitutional law of the concept of 'substantive due process.'" In
fact, as Mark Graber, Jim Ely, and others have pointed out, by the
time Dred Scott came around, there was a substantial body of state
court decisions using a substnative intepretation of due process of
law, or the analogous "law of the land," to protect property rights.
In fact, the Supreme Court itself had invalidated several federal laws
that redistributed property rights as violations of the 5th
Amendment's Due Process Clause.
But beyond the general accuracy of Bork's claim, he makes a very
explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe
in turn to Dred Scott, the better to discredit Roe and other modern
due process decisions by associating them with Taney's infamous
decision.
However, it turns out that not only did Justice Taney NOT invent
"substantive due process" in Dred Scott, but that the idea that the
concept of "due process of law" provided Americans with substantive
protections was a quite common in abolitionist circles, and often
arose in their public pronouncements.
For example, the 1843 National Liberty Convention of the abolitionist
Liberty party passed a resolution stating that the fundamental truths
of the Declaration of Independence, that all men are created equal and
are endowed by their Creator with certain inalienable rights, was made
part of the fundamental law of the national government by the Due
Process Claus of the 5th Amendment.
The 1848 platform of the Free Soil Party, a precursor to the
Republican Party which absorbed many Liberty part members, suggested
that any federal recognition of the slavery violated the Due Process
Clause:
4. Resolved, That our fathers ordained the Constitution of the
United States in order, among other great national objects, to
establish justice, promote the general welfare, secure the
blessings of liberty; but expressly denied to the federal
government, which they created, a constitutional power to deprive
any person of life, liberty, or property, without due legal
process. 5. Resolved, That in the judgment of this convention
Congress has no more power to make a slave than to make a king; no
more power to institute or establish slavery than to institute or
establish a monarchy. No such power can be found among those
specifically conferred by the Constitution, or derived by just
implication from them.
The 1856 and 1860 Republican platforms explicitly argued that
permitting slavery in the territories violated the Due Process Clause,
because it took the liberty of the slaves without due process of law.
Both Justice McLean's dissenting opinion in Dred Scott and Abraham
Lincoln in his public speeches argued that the problem with Taney's
opinion was not its protection of property rights through the Due
Process Clause, but that slaves could not be considered mere property,
like hogs or horses.
So, say what you will about "substantive due process" (an
anachronistic term not used until the 1940s), the Borkean notion,
unfortunately repeated by many conservative opponents of SDP, that the
concept has some special link to defending slavery is
counterhistorical. Indeed, the reliance of abolitionists on "due
process of law" helps explain why free labor advocates of the late
19th century were not the least bit embarassed to rely on a doctrine
that Taney had used in Dred Scott.
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