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charters, 209

209 state sales of public land, 210 and state grants of property tax exemptions in exchange for withdrawal of land claims 2" are contracts subject to the contract clause, since each of these forms of state action reasonably represents an agreement on the part of the state to be bound by its action and since each form of state action in those cases were accompanied by sufficient consideration on the other side of the

contract. 212


Additionally, it seems reasonably clear that Home Building and Loan Ass'n v. Blaisdel1213 and East New York Savings Bank v. Hahn, when the Court upheld the constitutionality of state mortgage moratorium legislation almost exactly resembling the state debtor-relief laws the contract clause was designed especially to prohibit, were incorrectly decided. Whatever the scope of the assumed police power exception to the contract clause may be, surely it does not extend to the principal historical evil that led the framers to enact the contract clause. 215

Blaisdell is particularly notorious for its explicit rejection of the idea that the Constitution should be interpreted according to the original meaning of its words. Despite Justice Sutherland's articulate defense of the original meaning approach in his dissenting opinion, the five-member majority in Blaisdell preferred to rely on its own perceived wisdom concerning how the contract clause of the Constitution should be reconciled with competing public interests. Indeed, Blaisdell is probably one of the most explicitly unprincipled Constitutional decisions ever rendered by the Court.


209 See Dartmouth College v. Woodward 17 U.S. (4 Wheat.) 518 (1819).
210 See Fletcher v. Peck, 10 U.S. (6 Cranch) at 136-37.
211 See New Jersey v. Wilson, 11 U.S. (7 Cranch) at 166-67 (1812).

2 For a more detailed discussion of these cases, see pp. 64-66, supra.
3290 U.S. 398 (1933).
214 326 U.S. 230 (1945).
215 For a further discussion of the facts of Blaisdell and the inconsistency of the Court's

reasoning and holding in that case with the original meaning of the contract clause, see Appendix C.



Other Constitutional Provisions Protecting Economic


The Due Process Clause

1. Origins of the Clause

The due process clause of the Fifth Amendment specifies that: “No person shall be. . . deprived of life, liberty, or property without due process of law.” 216 The words of the due process clause do not prohibit the deprivation of “life, liberty, or property.” Rather, they provide that any deprivation must be accorded "due process of law.”217 On its face the phrase “due process of law” has a strictly procedural connotation. Noah Webster's 1828 Dictionary stressed the procedural nature of “process,” which it defined as “[i]n law, the whole course of proceedings, in a cause, real or personal, civil or criminal, from the original writ to the end of the suit.” 218 In short, “due process” is the "process that is due,i.e., “the process required by law”. 219 As Professor Crosskey has pointed out, “if the words of the clause are heeded, there is, of course, no right (under the clause) to review the substantive acts of Congress at all.” This conclusion ineluctably follows from the very structure of the clause. As long as "proper procedures” (“due process”) are followed, a deprivation unquestionably may be effected, without regard to the substantive merits of the action that brings about the deprivation. In short, a plain reading of the due process clause demonstrates that it affords procedural, not substantive, protections. 220

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216 U.S. Const. amend. V. The following brief overview of the due process clause's origins

and original meaning does not purport to be comprehensive. 217 In Professor Crosskey's words, the due process clause “is, in short, a general guaranty

of 'due,' or 'appropriate,' 'process' in all cases where ‘life, liberty, or property' is at stake.” W. Crosskey, supra, at 1107. This is “the whole meaning of the Due Process

Clause of the Fifth Amendment.” Id. (emphasis in the original). 218 N. Webster, American Dictionary of the English Language (1828) (reissued 1967). 219 W. Crosskey, supra, at 1108. 220 The plainly procedural meaning and history of the due process clause are addressed in

some detail in R. Berger, Government by Judiciary 193-220 (1977). In Berger's opinion, “[i]t has been convincingly shown that due process was conceived in utterly procedural terms, specifically, that a defendant must be afforded an opportunity to answer by service in proper form, that is, in due course.” Id. at 197.

The evidence that exists concerning the framers' intentions is fully in accord with a plain reading of the due process clause. The clause evoked very little commentary during the debates over adoption of the Bill of Rights. 221 James Madison, who drafted the clause, undoubtedly was influenced by the English tradition that equated "due process" with “according to the law of the land." 222 Madison's use of the term “due process" instead of the law of the land” merely may have been aimed at avoiding confusion; the Supremacy Clause uses the phrase "law of the land” in placing federal written law above state constitutions and laws. 223

An interpretation that views the phrase "due process” as closely related to "the law of the land” suggests that the clause be interpreted to afford procedural protection. The thesis that the clause is procedural in nature arguably also is bolstered by its placement within the Bill of Rights:

The due process clause seems to be a general clause, certainly more general than the clauses on self-incrimination and just compensation, which immediately precede and follow it. But it is just because due process is surrounded both within the Bill of Rights and within the Fifth Amendment by other, more specific clauses, that it is difficult to construe its general terms with the generality many people (and the American constitu

221 The historical origins of the Fifth Amendment's due process clause are explored in R.

Mott, Due Process of Law 143-167 (1926). According to Mott, due process was not even mentioned once during the Constitutional Convention of 1787. Id. at 145. The lack of discussion over the meaning of “due process" during the debates over the Bill of Rights, chronicled id. at 154-167, strengthens the case for looking to historical

antecedents. 222 See Marshall, Due Process in England, in Due Process 69-89 (J. Pennock and J.

Chapman eds. 1977). “Due process” was specifically linked to "the law of the land" in the Petition of Right of 1628 and in the writings of Sir Edward Coke. Id. at 69. According to Mott, the identification of “due process of law” with the “law of the land” dates to the time of Edward II. R. Mott, supra, at 25. Mott traces the development of the concept of due process in England (at 30-86) and in the American colonies (id. at 106-124). Mott states that "it was but natural that procedure should have been uppermost in the minds of the colonists in connection with due process of law. The words themselves imply a judgment by the regular process of common law." Id. at 123. Alexander Hamilton also equated "due process" with the “law of the land”; he viewed these interchangeable phrases as being strictly procedural in nature. See W.

Crosskey, supra, at 1103. 223 See Miller, The Forest of Due Process of Law: The American Constitutional Tradition,

in Due Process 3-68, at 11.

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tional tradition) have accorded it. To judge by its location and this becomes more important when considering the meaning of due process in the Fourteenth Amendment -- the federal due process clause is neither an introduction to nor a concluding summary of specific guarantees.


In short, there exists textual and historical evidence in support of the proposition that the due process clause, unlike certain other constitutional provisions (such as the just compensation clause), does not provide specific substantive guarantees. In light of this fact, we believe that it is sensible to view the clause as embodying procedural, rather than substantive, protections. 225 Such an interpretation restrains the courts from employing “due process” as a tool to justify striking down laws based on their substance.

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In Barron v. Mayor and City Council of Baltimore, 32 U.S. (1 Pet.) 243 (1833), the Supreme Court confirmed that the Fifth Amendment's due process clause applies only to the federal government. Prior to the Civil War, the Supreme Court invoked the due process clause on only one occasion to invalidate a federal government action. In the landmark case of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the Court invalidated the Missouri Compromise. Chief Justice Taney's opinion indicated that because the Constitution had not empowered Congress to interfere with an owner's "vested” right in his slaves, the Missouri Compromise unconstitutionally deprived a slaveowner of his rights without due process.

In 1868, the Fourteenth Amendment to the Constitution was ratified. This Amendment, by its terms, made due process applicable to the states by specifying "nor shall any State deprive any person of life, liberty, or property without due process of law.” 226

224 Id. at 11. This argument, in and of itself, is not, we believe, particularly compelling.

The mere fact that a constitutional clause is surrounded by narrow, specific provisions does not mean that the clause must be read to be narrow and specific. The text of the clause, not its placement, is the key to its meaning, although understanding the

immediate textual context of a provision can be enlightening. 225 Raoul Berger's research supports such a procedural approach. See Berger, supra, at

193-220. 226 U.S. Const., amend. XIV, $1.

The Supreme Court at first opted for a strictly procedural interpretation of the Fourteenth Amendment's due process clause. In the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), the Court rejected the butchers' due process attack on a Louisiana statute that prohibited livestock yards and slaughter houses within New Orleans and its vicinity. The Court held that the due process clause only guaranteed that states follow procedural due process in enacting laws. Because the clause did not guarantee the substantive fairness of laws passed by the states, the butchers had not been deprived of due process.

The Court continued to follow a policy of noninterference in legislative judgments until 1887. In Mugler v. Kansas, 123 U.S. 623 (1887), in upholding the constitutionality of a Kansas law prohibiting the sale of alcoholic beverages, it stated that the judiciary must examine the substance of the laws to see if the legislature has surpassed its authority.

Ten years later, in Allgeyer v. Louisiana, 165 U.S. 578 (1897), the Court struck down a Louisiana statute prohibiting anyone from taking out marine insurance on any Louisiana property if the insurance company that issued the policy had not complied in all respects with Louisiana law. Allgeyer was convicted of violating the statute when he mailed a letter advising a New York insurance company about the shipment of some insured goods. The company was not registered to do business in Louisiana. The Court overturned Allgeyer's conviction on the grounds that Louisiana had no jurisdiction over foreign contracts and had violated due process. It reasoned that the Fourteenth Amendment guaranteed that a person would be free to use "all his faculties ... in all lawful ways.” 165 U.S. at 589. To ensure that a person could enjoy “all his faculties," the Court stated that the Fourteenth Amendment permitted a person to seek any type of employment or to pursue any type of avocation. The Louisiana statute had abridged these liberties by depriving Allgeyer of his liberty to contract “which the state legislature had no right to prevent. ► 165 U.S. at 591.

Allgeyer ushered in a forty year period during which the Court invoked the "substantive due process" doctrine to void economic and social legislation that it believed unreasonably infringed on the liberty to contract. The most famous case to employ this approach, of course, was Lochner v. New York, 198 U.S. 45 (1905), where the Court invalidated a New York law limiting to 60 the number of hours a baker could work per week. Dissenting on the ground that the due process clause does not force certain economic policies on the states, Justice Holmes made his

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