Due Process of Classic Natural Law

• In Event: Natural Law and Natural Rights

Abstract

Contemporary debates about the meaning of the Fifth and Fourteenth Amendments’ due process clauses entail whether those clauses empower the courts to identify and enforce unenumerated rights against legislative interference. This concept of “substantive due process” is entangled with the classic natural law tradition in American constitutionalism. Some legal scholars, such as Professor Frederick Mark Gedicks, maintain that the original meaning of the due process clauses evidences a commitment to “higher law” constitutionalism. The natural law tradition, Gedicks’ maintains, originated in the work of Sir Edward Coke, and was imported into the American colonies that adopted it in their revolutionary struggle. The tradition was later embedded in the American constitutional experience. The normative definition of law in the natural law tradition, Gedicks’argues, empowered courts to limit the exercise of legislative authority when such acts violated natural and customary rights. Justice Chase’s dictum in Calder v. Bull, which is the subject of considerable misinterpretation, is frequently cited as support for Gedicks’ view.

Professor Gedicks’ conclusion that an interpretive method that employs original meaning intimately ties the due process clauses to the natural law tradition is supported by historical and legal practices. Yet Gedicks is mistaken in maintaining that the original meaning of these clauses empowers courts to invalidate legislative acts contrary to principles of natural right and justice. Although the natural law tradition’s normative claim that an unjust law is not truly law was employed as a limit on the powers of the legislature, the adoption of this principle by early American jurists does not resemble the modern concept of substantive due process.

The classic natural law tradition maintains that a law is an “ordinance of reason” promulgated for the common good. This normative definition of law was embedded in the due process clauses as an original matter. Until the early nineteenth century, American jurists typically invalidated legislative acts that did not comport with the normative definition of "law" despite positivist claims to the contrary. The principles of natural law require that a true law, as opposed to a legislative act, must be general in its operation if it is to serve the common good. This called into question the legitimacy of partial or class legislation which benefited one group to the exclusion of other groups. An early example, cited by Justice Chase in Calder v. Bull, is a “law” which takes from A and gives to B. A related example is a “law” that abridges a vested legal right, especially a property right. Such laws were viewed as special legislation designed to arbitrarily distribute benefits and burdens among competing groups. The principles of natural law further require that a true law must be promulgated. Ex post facto laws, at issue in Calder v. Bull, and vague laws violate this principle of natural law.

This interpretation of the natural law tradition does not provide support for Professor Gedicks’ argument that a court can limit the prospective application of a general law. Some originalist responses to Professor Gedicks’ scholarship, however, have shown an unnecessary level of discomfort with the natural law tradition. This discomfort, even hostility, can be partially explained by the seeming tension between originalism and natural law. Natural law, after all, is frequently described in the scholarly literature as an extratextual source of authority for courts to invalidate legislative enactments. This view about the role of natural law is misplaced.

Professors Nathan S. Chapman and Michael W. McConnell provide ample evidence that the due process clauses do not limit the legislature from passing prospective laws of general application. Professors Chapman and McConnell maintain that the clauses serve a separation of powers function by prohibiting a legislature from exercising judicial or quasi-judicial powers. Professors Chapman and McConnell, however, do not give adequate attention to how the classic natural law tradition is interwoven into the fabric of American constitutionalism, particularly the due process clauses. This paper seeks to bridge the gap between these seemingly irreconcilable approaches by suggesting that the original meaning of the due process clauses absorbs the classic natural law tradition’s normative definition of law, but does not empower the courts to invalidate prospective laws of general application.

Author

• Joseph S. Devaney, Abraham Baldwin Agricultural College