Government by Judiciary

14. From Natural Law to Libertarian Due Process

Judiciary_251-300.indd 23 5/7/11 1:10 PM 14 From Natural Law to Libertarian Due Process Substantive Economic Due Process LE development of substantive due process was described by Robert G. McCloskey, a friend of the Court, as "the classic example of 'government by judiciary.' "1 So accustomed are we grown to this development-whereby courts substitute their own views of policy for those oflegislative bodies-that one recalls with a start that the doctrine was only launched in the late nineteenth century.2 The shift from judicial supervision of procedure in the courts to control of legislative policymaking constitutes a truly extraordinary transformation . For judicial review was conceived in narrow terms-as a means of policing the constitutional boundaries, the "limits" of a given power. Little did the Framers dream that the judicial power would be construed as a license to supersede the exercise of power by the other branches within those boundaries.3 In fact, judicial participation in legr . The American Supreme Court 132 (1960). "'Government by Judiciary,' is no idle phrase." A. T. Mason and W M. Beaney, American Constitutional Law 21 (1954). 2 . See Walton Hamilton, "The Path of Due Process of Law," in The Constitution Reconsidered 167 (C. Read ed. 1938); Charles G. Haines, The Revival ofNatural Law Concepts ro4- 165 (1930). In Adamson v. California, 332 U.S. 46, 79 (1947), Justice Black said of an 1890 case that it "gave a new and hitherto undiscovered scope for the Court's use of the due process clause to protect property rights under natural law concepts." 3·Judicial review "should be confined to occasions when the statute or order was outside the grant of power to the grantee, and should not include a review of how the power has been exercised." Learned Hand, The Bill ofRights 66 (1962); for confirmatory materials , see infra Chapter 16 at notes 20-26. Madison stated that none of the departments 2 73 Judiciary_251-300.indd 24 5/7/11 1:10 PM 2 74 GOVERNMENT BY JUDICIARY islative policymaking was unmistakably excluded.4 Under the guise of substantive due process, therefore, the Court has invaded the exclusive jurisdiction of a sister branch; it has violated the injunction of the separation of powers, made explicit in the 1780 Massachusetts Constitution, that "the judiciary shall never exercise the legislative power."5 And it has encroached on the sovereignty reserved to the States by the Tenth Amendment. It has done this in the name of a self-created doctrine to legitimate the exercise ofpower once rationalized under the garb ofnaturallaw .6 But neither the Framers of the Constitution nor of the Fourteenth Amendment entertained such notions. Itis axiomatic that all wielders ofpower, judges included, ever thirst for more.7 This appetite for extraconstitutional power found classical expression inJustice Samuel Chase's opinion in Calder v. Bull (1798). Taking off from an hypothetical horrible-"a law that takes property from A and gives it to B"-Chase declared that even in the absence of express restraint by the Constitution, "it is against all reason and justice, for a people to entrust a Legislature with such powers ... the general principles oflaw "ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers." Federalist No. 48 at 321. See infra note 5· "The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers." Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 548 (I869). 4· Infra Chapter I6. 5· Article XXX provided that "the legislative department shall never exercise the executive and judicial powers ... the executive shall never exercise the legislative and judicial powers ... the judicial shall never exercise the legislative and executive powers." I Poore 960. For the same utterance by Madison, see I Annals ofCongress 435-436. 6. The "modern definition of 'due process' is merely the 'narural justice' .. . under a new name."J. A. C. Grant, "The Narural Law Background ofDue Process," 3I Colum. L. Rev. 56,65 (I9JI); Haines, supra note 2 at 305, Ioi, Io3; Graham 239. Justice Black referred to the " 'narurallaw due process notion' by which this Court frees itselffrom the limits of a written Constirution." In re Winship, 397 U.S. 358, 38I (I970). 7· Madison stated, "It will not be denied, that power is of an encroaching narure, and that it ought to be effecrually restrained from passing the limits assigned to it." Federalist No. 48 at...