Making Sense of Substantive Due Process (Part II)

Substantive due process is a way for the Court to reconcile three important documents with the Fourteenth Amendment of the Constitution. First, the Declaration of Independence which states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ….”. Secondly, the 1823 case Corfield v. Coryell defines what it is meant by the privileges and immunities clause in the Constitution: “The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union’.” Thirdly, the Civil Rights Act of 1866 defined privileges and immunities as: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Declaration of Independence, Corfield v. Coryell, and the Civil Rights Act of 1866 were the main elements incorporated into the Constitution via the Fourteenth Amendment in 1868. Also, the natural rights contained in the above-mentioned documents can also be implied through the Ninth Amendment suggesting any rights not included in the Constitution should not be denied or disparaged. All persons are born with natural rights which must be the number one priority of any free government to protect and the only way to successfully achieve this goal is via substantive due process since thousands of natural rights are not outlined in the Constitution. Constitutional Convention member, James Wilson, opposed the Bill of Rights because it was impossible to outline all the natural rights that should be protected and he feared that doing so will disparage the rights not mentioned in the document. This fear brought about the Ninth Amendment, but the amendment has been very rarely used to protect individual natural rights. Therefore, Wilson was right, protecting some rights within the confines of the Constitution has disparaged thousands of rights.

Originally, I thought the first occurrence of substantive due process in American History was in Dred Scott v. Sanford (1857). However, this is not true, the doctrine had existed in English law prior to Constitution and was introduced into Constitutional law very early in our history. In Calder v. Bull (1798) Justice Samuel Chase wrote that the transfer of property from one person to another contradicted natural law and was unconstitutional. The Court reiterated Calder v. Bull in Terret v. Taylor (1815) and Wilkerson v. Leland (1829). In Hoke v. Henderson (1833) the Court held that holding a public office was also private property and it could not be taken away without due process of the law. Dartmouth College v. Woodward (1819) was an interesting case because the State of New Hampshire attempted to cancel the school’s charter to force it to become a public institution. Daniel Webster defended Dartmouth College through substantive due process claiming New Hampshire violated natural law by passing a bill of attainer. The Court ruled in favor of Dartmouth but did not adapt the substantive due process theories of Webster. In the 1852 case Bloomer v. McQuewan the Court adopted the “First Sale Doctrine”. This substantive due process ruling protected people from prosecution for reselling a product they legally purchased without violating copyright or trademark protections. For example, a person can resell a legally purchased book without facing prosecution from the author of the book for copyright violations. In Sharpless v. Mayor of Philadelphia (1853, Pennsylvania case) and Stockton and Visalia Railroad v. City of Stockton (1871, California case) the Courts found it legal for a city to tax its residents with the proceeds going to a private company to finance a railroad project. However, the Supreme Court rejected the rationale in both Stockton and Sharpless in Loan Association v. Topeka (1874). The Court held that redistribution of wealth through taxes violated the Fundamental Natural Rights of individual property rights. Persons ought to have the right to do anything lawful with their own bodies and their possessions without any government interference or restrictions so long as their actions do not violate the rights of others. Although liberals would agree that tax money should not be used to supplement the finances of a private company, they would adamantly disagree with preserving natural rights because they believe property (money) can be taken away from one private citizen and given to other private citizens in the form of welfare. Welfare violates the basic principles of individual natural rights to do as they lawfully please with their property (money).