As strange as the idea of substantive due process may seem, it has been around for quite some time, at least since the infamous Dred Scott decision of 1857. In Dred Scott, the Supreme Court declared the Missouri Compromise unconstitutional. The Missouri Compromise had outlawed slavery in most territories north of Missouri, and Dred Scott, a slave, argued that once he was brought into the free territory of Illinois, he had become a free man. The Court disagreed.
Dred Scott is an important case in many different ways. For our purposes, it is significant because of the rationale cited in a concurring opinion by Chief Justice Taney. He wrote that an “act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property [i.e., Dred Scott] into a particular Territory of the United States…could hardly be dignified with the name of due process of law.” Taney’s objection was not targeted toward any specific legal process that might be employed to transform slaves from property to free men; rather, he argued that no process of law would be sufficient to deny a slaveowner his right to hold slaves as property in U.S. territories.
Justice Curtis, in a lengthy dissent, not only disputed Taney’s interpretation of the due process clause, but he openly wondered what such an interpretation would mean for state laws against slavery. If the Missouri Compromise, forbidding the admission of slavery into certain U.S. territories, was a violation of the 5th Amendment, then every state law forbidding the importation of slaves into its borders must likewise violate this principle of “due process.” Abraham Lincoln, in his “House Divided” speech, similarly predicted that the logic of the Dred Scott decision would later be applied in order to invalidate state antislavery laws. Lincoln said that he expected that the Union would eventually become all slave or all free, and if the logic of Taney’s argument prevailed, then all states would become slave states.
The course of history—specifically the Civil War, the Emancipation Proclamation, and the 13th Amendment-meant that the predictions of Curtis and Lincoln regarding slavery were never thoroughly tested. But Taney’s position on the “substantive” nature of the due process clause was eventually adopted by the Court.
And the significance of this new interpretation of the due process clause became even more momentous because of the 14th Amendment, which was ratified in 1868. The 14th Amendment contains a second Due Process Clause, this one specifically applicable to states. The courts did not immediately adopt the “substantive due process” interpretation for either the 5th or the 14th Amendment, but by the 1920s, it had become a dominant force in legal interpretation. Since then, the U.S. Supreme Court would decide how both the national government and state governments were bound by both the procedural and substantive aspects of due process of law.
While the opinion of the Court, by Chief Justice Taney, in the Dred Scott case, and the separate opinions of all the concurring Judges, expressly declare that the Constitution of the United States neither permits Congress nor a Territorial legislature to exclude slavery from any United States territory, they all omit to declare whether or not the same Constitution permits a state, or the people of a State, to exclude it.”Abraham Lincoln