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ENDING THE MATHEWS V. ELDRIDGE
BALANCING TEST: TIME FOR A NEW DUE
PROCESS TEST
Christopher J. Schmidt
INTRODUCTION
If the government was attempting to deprive you of your life, liberty, or
property, do you know what United States‟ Supreme Court decision
generally governs what “process” you are due? While your interest is
probably not related to social security benefits, the governing decision
involved social security benefits and that decision could determine what
process you are due. The current due process test is from Mathews v.
Eldridge;1 it “measures” three factors: the private interest affected by
government action; the risk of erroneous deprivation of such interest; and,
the government‟s interest, including the function involved and the burdens
the government would face in providing greater process.2
The Mathews test has thus been described as an economic balancing
test3 attempting to determine what process is due by weighing the legal
parties‟ interests using language characterized as “social utility.”4 Another
way some think of the test is as a cost-benefit analysis.5 The test requires a
court to ask what procedures are required in the case before it by
B.A., University of Maryland, 1998; J.D., Widener University School of Law, 2001;
LL.M., Georgetown University Law Center, 2005. Member of the Pennsylvania Bar.
1. 424 U.S. 319 (1976).
2. Id. at 321.
3. Jerry L. Mashaw, The Supreme Court’s Due Process Calculus for Administrative
Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L.
REV. 28, 47-48 (1976); Stephen E. Gottlieb, The Paradox of Balancing Significant Interests, 45
HASTINGS L.J. 825, 841 (1994).
4. Mashaw, supra note 3, at 49-51; see also Gottlieb, supra note 3, at 841.
5. Michael J. Furbush, Constitutional Law: Procedural Due Process and Civil Commitment,
45 FLA. L. REV. 921, 923 (1993) (citing JERRY L. MASHAW, DUE PROCESS IN THE
ADMINISTRATIVE STATE 103-04 (1985)).
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determining procedures that would adequately protect the individual while
not being too burdensome on the government; i.e., the cost-benefit
analysis.6 Ultimately, the test is not designed to create a test with broad
application to many other cases; instead, a unique procedure for each case
may be created.7
Interestingly, my research revealed that Dean T. Alexander Aleinikoff
of Georgetown University Law Center provided a thorough review of
balancing tests.8 When one merges this review with the proposals of two
textualist jurists—former Supreme Court Justice Hugo Black and current
Justice Antonin Scalia—we have an eloquent historical review of balancing
tests and a proposal for a new due process test.
Part I of this article, which relies more on Dean Aleinikoff‟s writing,
describes how balancing tests have little historical foundation and are
ineffective at resolving due process issues. Part II, which relies more on
Justices Black‟s and Scalia‟s view, analyzes the textual and historical
foundation of the Due Process Clause and proposes a new due process test.
I.
EVALUATING THE MATHEWS BALANCING TEST
The Mathews test has little historical foundation and it attempts to
balance interests on a scale that cannot be measured and weighed like an
inanimate object that has a specific weight. In section (A), I trace the
evolution of balancing tests in legal decision-making, revealing that they
are a relatively recent judicial concept. Next, in section (B), I illustrate the
common sense critique of balancing tests that balancing only works in
settings where a definite result, such as those in economics or mathematics,
may occur.
A. Little Historical Justification for Balancing Tests
Dean Aleinikoff provided a chronological review of balancing tests.
Obviously, the Bill of Rights (containing the Due Process Clause) was
ratified before judges created any balancing tests to interpret it.9 In fact, it
took a long time for balancing tests to come of age; they seem to first
appear in the 1930‟s—long after the Due Process Clause came into effect in
6. Brock v. Roadway Express, Inc., 481 U.S. 252, 277 (1987) (Stevens, J., dissenting).
7. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943,
979 (1987).
8. Id.
9. Id. at 948.
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1791.10 Thus, the 1930‟s balancing tests were a new form of constitutional
analysis from judges, not from the Constitution‟s text.11 And in the early
balancing test opinions, there does not appear to be an explanation from
judges as to why such tests were “a proper form of analysis.”12 In short, the
use of balancing tests increased as the Warren Court guided constitutional
analysis in the 1960‟s,13 and they were “commonplace” by the 1980‟s.14
Dean Aleinikoff provided an historical review revealing constitutional
law opinions up to the 1930‟s did not use balancing tests in constitutional
analysis.15 He found a close, linguistic review of the Supreme Court‟s
opinions up to the 1930‟s shows it did not write opinions or analyze cases
in terms of economic, cost-benefit, or social utilitarian balancing tests.16
Dean Aleinikoff explains the court did not even ask the parties what
interests should be balanced or how those interests balanced against each
other.17
The Court‟s failure to use balancing tests for about the first 150 years
of its existence shows their use has little historical foundation. Further, the
Constitution does not state balancing tests should be used to interpret it18
and one can see balancing tests are relatively recent judicial creations with
little foundation.19
10. Id.; see also Frank N. Coffin, Judicial Balancing: The Protean Scales of Justice, 63
N.Y.U. L. REV. 16, 18 (1988) (determining the genesis of balancing tests to be 1939) (citing
Schneider v. State, 308 U.S. 147, 161-65 (1939)).
11. Aleinikoff, supra note 7, at 949.
12. Id. at 948-49.
13. Coffin, supra note 10, at 18.
14. Id.
15. Aleinikoff, supra note 7, at 949. Dean Aleinikoff explained how well-known
constitutional opinions of the era mentioned did not utilize balancing tests:
Marshall did not hold for the Bank in McCulloch v. Maryland because the burden of the
state‟s tax outweighed the state‟s interest in taxation. Webster‟s argument in Gibbons v.
Ogden was not persuasive because he demonstrated that the interest of the national
government outweighed the interests of the states in regulating interstate commerce. Nor
were the purchasers of land in Fletcher v. Park entitled to keep their property because, on
balance, the interest in security of transactions outweighed the interest of the State of Georgia
in repealing corrupt legislation.
Id. (internal citations omitted).
16. Id. at 950. For a review of language of well-known Supreme Court opinions prior to the
1930‟s that did not use balancing tests, see id. at 950-52 and accompanying footnotes.
17. Id. at 952.
18. See Konigsberg v. State Bar, 366 U.S. 36, 61-68 (1960) (Black, J., dissenting); Barenblatt
v. United States, 360 U.S. 109, 138-39, 143-44 (1959) (Black, J., dissenting).
19. See Aleinikoff, supra note 7, at 949.
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B. Practical Problems of Balancing Interests
As Dean Aleinikoff describes, the main problem with balancing tests is
they have no set way to compare or “weigh” the interests before a court.20
Judges, therefore, are left trying to balance two distinct interests with
different, yet usually very important reasons supporting why they have
great “weight”; thus, it has been widely stated that balancing tests attempt
to balance the proverbial apples and oranges.21 Dean Aleinikoff noted a
court, such as Mathews, can frame a due process issue under a balancing
test,22 but that framing of the issue is incomplete because balancing only
provides an accurate answer when real, weighted items can be weighed and
tip a real scale one way or another.23 Another scholar described it like this:
a balancing scale is only an effective device when weighted items can be
placed on it so it will tilt in one direction or another, thereby eliminating
any human thought to control the result.24 Legal “interests,” such as an
individual‟s cherished liberty versus the government‟s interest in detaining
an individual dangerous to the public or themselves, are impossible to
measure because there is no way to specifically “weigh” those interests and
no scale where these interests can be weighed.25
With no scale, Dean Aleinikoff stated “legal interests cannot be
translated into common currency for comparison.”26 Once we recognize no
legal balancing scale exists, then we can seriously question if legal
decisions using balancing tests actually reach a reasoned resolution.27
Another scholar thought of it this way: since balancing tests are not true
mathematical or economic equations, there is no way to check or prove a
court‟s answer as one can do in true mathematical problems and solutions.28
That is why, as Robert Bork described, economics “produces its best results
with the behavior of persons in real markets, where dollars may be used as
20. Id. at 952.
21. See id. at 952, 975; RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 581-642 (3d ed.
1986); Robert H. Bork, The Role of the Courts in Applying Economics, 54 ANTITRUST L.J. 21, 22
(1985) (determining that the notion that economics and cost/benefit analyses can be applied to all
areas of law rests on the premise that there are no such things as apples and oranges); Gottlieb,
supra note 3, at 841 (noting apples and oranges are incomparable when discussing flaws in
balancing tests).
22. Aleinikoff, supra note 7, at 948.
23. Id. at 973.
24. See Gottlieb, supra note 3, at 839-41.
25. See Cass Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779,
796 (1994); Gottlieb, supra note 3, at 841; Aleinikoff, supra note 7, at 974-75.
26. Aleinikoff, supra note 7, at 973.
27. Id.
28. Gottlieb, supra note 3, at 842.
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measuring units.”29
It has been widely determined then, that a court using a balancing test
has to “„measur[e] the unmeasurable [and] compare the incomparable.‟”30
Dean Aleinikoff found this leads appellate judges and justices to reach
opposite conclusions even though they agreed upon the form of analysis—a
balancing test.31
The lack of consistent, unanimous adjudication of cases utilizing
balancing tests shows how poor balancing tests are. If balancing can occur,
then balancing should lead to a unanimous decision in every case it is used.
Whatever interest tips the scale has to prevail.32 If interest A weighs 51
legal units and interest B weighs 49 legal units, then all justices would have
to conclude interest A prevails.33
Because legal interests lack weights to balance, one can see that
balancing tests are not actually balancing tests. As indicated earlier, a
balancing scale is only an effective device when weighted items can be
placed on it so it will tilt in one direction or another, thereby eliminating
any human thought to control the result.34 Such legal “balancing” relies on
what interests judges think are more important, not the actual weight of an
interest.35
Since there is no real legal scale that judges can place weighted
interests upon, many scholars found judges likely impute (either
consciously or subconsciously) their own values into “weighing” the parties
interests.36 This is especially troubling because legal balancing results in
29. Bork, supra note 21, at 22.
30. Laurent B. Frantz, Is the First Amendment Law? - - A Reply to Professor Mendelson, 51
CAL. L. REV. 729, 748 (1963), quoted in Aleinikoff, supra note 7, at 972; see also Bendix Auotlite
Corp. v. Midwesco Enter., Inc., 486 U.S. 888, 897 (Scalia, J., concurring) (noting a scale is
inappropriate since interests on the scale are incommensurate); Melissa Taylor, The VMI
Decision: A Look at the Balancing Process in Equal Protection Cases, 60 U.M.K.C. L. REV. 393,
395-96 (1991) (discussing the argument that it is difficult to assign values to interests and
subsequently compare them); Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of
Justice Black, 68 TEX. L. REV. 1195, 1213 (1990) (discussing the argument that it is difficult to
assign values to interests and subsequently compare them).
31. Aleinikoff, supra note 7, at 975 n.204 (citing Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 761, 785 (1985); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050, 1052
(1984); United States v. Leon, 468 U.S. 897, 926-28 (1984); Hobby v. United States, 468 U.S.
339, 350 (1984); Mathews v. Lucas, 427 U.S. 495, 516-17 (1976); Branzburg v. Hayes, 408 U.S.
665, 709-10 (1972)).
32. E.g., Wayte v. United States, 470 U.S. 598, 618 (1985).
33. Id.
34. Gottlieb, supra note 3, at 839, 841.
35. Id. at 842.
36. Id. at 840 (citing IRVING L. JANIS & LEON MANN, DECISION MAKING: A
PSYCHOLOGICAL ANALYSIS OF CONFLICT, CHOICE, AND COMMITMENT 174-75 (1977)) (stating
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increasing one party‟s interest, say the government, at the expense of
another party‟s interest, say an individual.37 Or, obviously, an individual‟s
interest can be improperly heightened and the government‟s interest
improperly diminished.38 Thus, at least one scholar has concluded allowing
judges to “balance” competing interests according to their own values is
unacceptable.39 Many others have generally stated the legal balancing scale
cannot consist of judges‟ personal views, unless constitutional law is to
return to the “lochnerizing” era.40 Balancing tests, at worst, are an
unacceptable form of constitutional analysis that should be eliminated.41
Balancing tests, at best, would sneak by as an acceptable form of
constitutional analysis, but would still allow judges to essentially alter the
scale to meet their values.42 Ultimately, former Supreme Court Justice
William Brennan, one I did not expect to be aligned with my position,
provided an apt summary of balancing tests by stating they are “not a
neutral, utilitarian calculus, but an unanalyzed exercise of judicial will.”43
Justice Scalia, generally not of like-mind with Justice Brennan on
contentious constitutional issues, explained “when a court weighs the
that rational decisions require consideration of costs and benefits); JAMES W. LOEWEN, SOCIAL
SCIENCE IN THE COURTROOM: STATISTICAL TECHNIQUES AND RESEARCH METHODS FOR
WINNING CLASS-ACTION SUITS 95-114 (1982) (giving examples of the use of rank ordering in
statistical assessments); Frantz, supra note 30, at 747-49 (concluding that quantification cannot be
done). See also Gottlieb, supra note 3, at 842; see also Frantz, supra note 30, at 747-49 (asking
how judges can keep their personal preferences off the balancing scale); Curtis E. Harris, An
Undue Burden: Balancing in an Age of Relativism, 18 OKLA. CITY U. L. REV. 363, 400 (1994)
(concluding “[b]alancing tests inevitably become intertwined with the ideological predispositions
of those doing the balancing”) (citing John Hart Ely, Flag Desecration: A Case Study in the Roles
of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1501
(1975)).
37. Bork, supra note 21, at 22-23.
38. Id.
39. David M. Beatty, The Forms and Limits of Constitutional Interpretation, 49 AM. J.
COMP. L. 79, 119 (2001).
40. Aleinikoff, supra note 7, at 973 (citing John Hart Ely, The Wages of Crying Wolf: A
Comment on Roe v. Wade, 82 YALE L.J. 920, 944 (1973)). The term “lochnerizing” comes from
the Supreme Court‟s decision in Lochner v. New York, 198 U.S. 45 (1905). The widely rejected
decision is commonly seen as a form of judicial activism wherein the Court struck down a state
law limiting the number of hours an employee could work per week and per day under a
substantive due process methodology. See, e.g., Lochner, 198 U.S. at 53.
41. Beatty, supra note 39, at 119 (citing RONALD DWORKIN, LAW‟S EMPIRE, CH. 5 (1986));
Aleinikoff, supra note 7, at 978-79. Balancing competing and non-quantifiable interests is not
always an unprincipled and potentially illicit process in the workings of government. The task of
balancing such competing interests is a traditional legislative task. See Erwin Chemerinsky, The
Vanishing Constitution, 103 HARV. L. REV. 43, 68 (1989) (citing Aleinikoff, supra note 7, at 984).
42. Norman Viera, Unwarranted Government Disclosures: Reflecting on Privacy Rights,
HIV and Ad Hoc Balancing, 47 WAYNE L. REV. 173, 197 (2001).
43. New Jersey v. T.L.O., 469 U.S. 325, 369 (1985) (Brennan, J., dissenting).
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private interest against the [g]overnment‟s interest, it proceeds under the
guise of the Due Process Clause to prescribe what procedural protections it
thinks appropriate.”44 He further stated a court is not to prescribe what
procedures it thinks is appropriate, but the procedures the law requires.45
Justice Black articulated the danger of allowing judges to determine what
they think is appropriate:
[U]nbounded authority in any group of politically appointed or elected
judges would unquestionably be sufficient to classify our Nation as a
government of men, not the government of laws of which we boast . . . I
believe the only way to steer this country towards its great destiny is to
follow what our Constitution says, not what judges think it should have
said.46
Justice Black then describes who should decide what is fair:
The rules set out in the Constitution itself provide what is governmentally
fair and what is not. Neither due process nor equal protection permits state
laws to be invalidated on any such nonconstitutional standard as a judge‟s
personal view of fairness. The people and their elected representatives, not
judges, are constitutionally vested with the power to amend the
Constitution. Judges should not usurp that power in order to put over their
own views.47
If we let five unelected justices decide what is fair, the Due Process
Clause‟s protections could be eviscerated.
Dean Aleinikoff mentioned balancing is also difficult because it is
unclear if judges take into account all the parties‟ interests.48 This occurs
because the Due Process Clause does not say anything about balancing
interests, and judges, while probably trying their best, are not trained in
balancing; so, courts likely identify some, but not all the interests of the
government and an individual in a case before it.49
As a Supreme Court decision often establishes the final say on law in a
particular area, the interests affected are broad and important. A Supreme
Court decision can affect notions of equity, future legislative acts, future
behavior of the citizenry and the government. Should not these interests be
weighed and balanced as well?
Since no truly weighted interests or legal scale exists, there is no
44. Hamdi v. Rumsfeld, 542 U.S. 507, 575 (2004) (Scalia, J., dissenting).
45. Id. at 575-76.
46. Boddie v. Connecticut, 401 U.S. 371, 393 (1971) (Black, J., dissenting).
47. Id. at 394.
48. Aleinikoff, supra note 7, at 977.
49. Id. at 988; Barenblatt v. United States, 360 U.S. 109, 144-47 (1959) (Black, J.,
dissenting).
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benefit to adopting the Mathews test;50 thus, courts should avoid it if
possible.51 Ultimately, as Justice Brennan stated, the Supreme Court should
provide some coherent framework to decide cases other than the Mathews
test.52
II. DETERMINING AN APPROPRIATE DUE PROCESS TEST
An appropriate due process test should conform to the Due Process
Clause‟s text and its historical understanding. The clause‟s text shows it
requires the government provide the procedure owed a person when the
government attempts to deprive him of his life, liberty, or property.53 The
source of this procedure must be found in a “law.” An historical
understanding of the Due Process Clause verifies this textual conclusion.
As Justice Black stated, an appropriate due process test provides the
government must proceed according to the law of the land, that is,
according to written constitutional and statutory provisions as interpreted by
court decisions when attempting to deprive a person of life, liberty, or
property.54
A. Understanding the Due Process Clause’s Text
While the Due Process Clause may seem somewhat vague,55 it has to
be defined in a constitutional analysis because the Constitution states the
people “ordain and establish” the Constitution,56 and it is the supreme law
of the land requiring judges to support it through oath or affirmation.57 As
some described, since the Constitution‟s words are what the people ratified
and believe is supreme,58 a constitutional analysis begins with the
“constitutional text speaking to [the] precise question.”59 Even if a
50. See Bork, supra note 21, at 23.
51. See Laurence Tribe, Constitutional: Equal Justice or Economic Efficiency?, 98 HARV. L.
REV. 592, 620 (1985), cited in Aleinikoff, supra note 7, at 992.
52. New Jersey v. T.L.O., 469 U.S. 325, 369 (1985) (Brennan, J., dissenting).
53. U.S. CONST. amend. XIV, § 1.
54. In re Winship, 397 U.S. 357, 382 (1970) (Black, J., dissenting).
55. Id. at 378.
56. U.S. CONST. pmbl.; Akhil Reed Amar, Foreward: The Document and the Doctrine, 114
HARV. L. REV. 26, 34 (2000).
57. U.S. CONST. art. VI, cl. 2.
58. Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring); see also Amar,
supra note 56, at 33.
59. Printz v. United States, 521 U.S. 898, 905 (1997); see also John Randolph Prince,
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centuries old constitutional provision has not been specifically interpreted
by the Supreme Court, the starting point of an analysis is with that
provision‟s text.60 Even Richard Posner, the leading proponent of law and
economics analysis, believes constitutional analysis begins with the
constitutional text.61 Ultimately, courts should construe constitutional text
in a reasonable, common sense manner.62
Although the Due Process Clause is not immediately clear, its meaning
can be extracted from its text. It provides: “No person shall be . . . deprived
of life, liberty, or property, without due process of law . . . .”63 Generally,
the clause is read to require the government provide fair procedures before
it deprives persons of life, liberty, or property.64 That basic interpretation is
not as exacting as the meaning of “due process of law” requires.
“Process” means “procedure.”65 Thus, the Due Process Clause requires
a procedure.66 The question is whether “due” means a fair procedure is
required or something else is required?
“Due” relates more to what is owed, and less to what is fair. Due‟s
meaning before the Constitution‟s enactment referenced something due as a
Forgetting the Lyrics and Changing the Tune: The Eleventh Amendment and Textual Infidelity,
104 DICK. L. REV. 1, 17 (1999) (noting a court should start its analysis with an amendment‟s
words, not with implicit principles).
60. Christopher J. Schmidt, An International Human Right to Keep and Bear Arms, 15 WM.
& MARY BILL RTS. J. 983, 984-88 (2007) (starting Second Amendment analysis with
amendment‟s text); District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (U.S. 2008) (same).
61. Richard Posner, The Constitution as an Economic Document, 56 GEO. WASH. L. REV. 4,
33 (1987).
62. Christopher J. Schmidt & David A. Klinger, Altering the Posse Comitatus Act: Letting
the Military Address Terrorist Attacks on American Soil, 39 CREIGHTON L. REV. 667, 675 (2006)
(citing ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 23
(1997)).
63. U.S. CONST. amend. V.
64. Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining
Unenumerated Rights and Eliminating Substantive Due Process, 32 U. BALT. L. REV. 169, 188
(2003) (citing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF
THE LAW 180 (Collier MacMillan 1990), cited in Bruce N. Morton, John Locke, Robert Bork,
Natural Rights and the Interpretation of the Constitution, 22 SETON HALL L. REV. 709, 756
(1992)).
65. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1398 (4th ed.
2000). The modern day ordinary meaning of “process” includes: “[a] series of actions, changes,
or functions bringing about a result,” “[t]he entire course of a judicial proceeding,” “[t]o put
through the steps of a prescribed procedure,” “[t]o institute legal proceedings against . . . .” Id.
See also THE WORLD BOOK DICTIONARY 1659 (1981); MERRIAM-WEBSTER‟S COLLEGIATE
DICTIONARY 927 (10th ed. 1971); WEBSTER‟S NEW COLLEGIATE DICTIONARY 917 (1977); see
OXFORD ENGLISH DICTIONARY available at http://www.dictionary.oed.com.
66. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note
65, at 1398.
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debt or “due” as a right, being sufficient in that regard.67 The modern day
meaning of “due” is remarkably similar.
It includes: “[p]ayable
immediately on demand;”68 “owed as a debt;”69 “[i]n accord with right,
convention, or courtesy; appropriate . . . .”70 These meanings show “due”
means that what is owed or payable on demand as a right.
One may criticize the inclusion of the meanings of “due” as owed or
payable on demand as irrelevant because no financial debt is in question.
This critique is incorrect for two reasons. First, something that is “owed as
debt” need not be financial in nature. This is true when the Constitution is
thought of as a social compact or contract between the people and the
government.71 Under this compact, the government is required to provide
persons a process under law before depriving them of life, liberty, or
property.72 Obviously, the process owed is not financial in nature, but it is
still a debt the government owes persons when it attempts to deprive them
of their life, liberty, or property. Second, courts, including the Supreme
Court in Hamdi v. Rumsfeld,73 regularly frame due process questions as
what process is constitutionally due, or more often, the “process due,” or
the “process owed.”74 This placement of “due” shows courts attempt to
determine what process a person is constitutionally owed when the
government attempts to deprive him of his life, liberty, or property. The
Hamdi plurality stated: “[M]r. Hamdi argues that he is owed a meaningful
and timely hearing . . . .”75 With the definition of “due” including meanings
referencing what is “owed” and the Supreme Court and multiple other
67. See OXFORD ENGLISH DICTIONARY, supra note 65.
68. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note 65, at
553.
69. THE WORLD BOOK DICTIONARY, supra note 65, at 649.
70. WEBSTER‟S NEW COLLEGIATE DICTIONARY, supra note 65 at 357.
71. Kevin W. Saunders, Privacy and Social Contract: A Defense of Judicial Activism in
Privacy Cases, 33 ARIZ. L. REV. 811, 822 (1991) (citing Edward S. Corwin, The “Higher Law”
Background of American Constitutional Law, 42 HARV. L. REV. 149, 383-98 (1928)); Citizens‟
Savings & Loan Ass‟n v. Topeka, 87 U.S. 655, 662-63 (1874) (concluding there are rights in
every free government beyond the State‟s control that ensure the existence of the social compact);
Calder v. Bull, 3 U.S. 386, 388 (1798) (finding a legislative act contrary to the first principles of
the social compact); Chisholm v. Georgia, 2 U.S. 419, 455 (1793) (Wilson, J., concurring)
(concluding states, like individuals, are bound by laws through a compact). I take no position as
to whether the substantive decisions in cases invoking the social compact theory were correct or
not.
72. See U.S. CONST. amend. XIV.
73. 542 U.S. 507 (2004).
74. Id. at 523 (emphasis added); Id. at 594 (Thomas, J., dissenting) (concluding “Hamdi
thereby received all the process to which he was due under the circumstances”); see also Gilbert v.
Homar, 520 U.S. 924, 931 (1997).
75. Id. (emphasis added).
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courts recognizing this concept, one cannot effectively argue “owed” is not
a relevant meaning of “due” when interpreting the Due Process Clause.
Some may argue “due” means “fair”;76 thus, a “fair” procedure is
required. The placement of due, again, defeats this position. If due meant
“fair,” then the commonly used phrase “process due” would mean the
“process fair.” Courts would then begin saying, for example, party A
argues this is the process fair. That phrasing simply does not make sense.
So, the placement of due in court opinions, just as much, if not more than
its definition, shows what it means in regard to “due process of law.”77
Fairness is a principle of the Due Process Clause; that principle, however, is
evidenced by determining what process is owed to an individual.
The Constitution provides the meaning of what constitutes federal
“law.”78 The Constitution declares itself the supreme law of the land.79 It
describes how congressional legislation becomes “law.”80 It also describes
how treaties are ratified and they are the supreme law of the land.81 While
the Constitution does not specifically refer to judicial decisions as law, it is
generally accepted they establish law.82 Since the Due Process Clause was
ratified during the founding era, the common law of the colonists in
existence at the time served as a source of “law” for determining what
process was due as well.83 Those fundamental common law principles may
also be a source of law.
The Mathews test limits the meaning of “law” in the Due Process
76. See, e.g., supra note 65.
77. Hamdi, 542 U.S. at 531.
78. See U.S. CONST. art. VI.
79. Id. (“The Constitution . . . shall be the supreme Law of the Land . . . .”).
80. U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and a House of Representatives.”);
U.S. CONST. art. I, § 7
Every Bill which shall have passed the House of Representatives and the Senate, shall, before
it become a Law, be presented to the President of the United States; If he approves he shall
sign it, but if not he shall return it, with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on their Journal, and proceed to reconsider
it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall
be sent, together with the Objections, to the other House, by which it shall likewise be
reconsidered, and if approved by two thirds of that House, it shall become a Law.
Id.
81. U.S. CONST. art. VI (“all Treaties made, or which shall be made, . . . shall be the supreme
Law of the Land . . . .”).
82. Federal court decisions may not be a form of “law.” The Constitution does not describe
court decisions as law. However, since federal court decisions are generally recognized as a form
of law I will analyze them as such in this article.
83. Hamdi v. Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J., dissenting) (concluding gist of
the Due Process Clause is to force government to follow common law procedures traditionally
required before depriving a person of life, liberty, or property).
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Clause to a court decision. Under Mathews, essentially the only “law” that
can provide the procedure owed is a court decision because to determine
what process is due, a court must undertake the Mathews balancing test.84
Under Mathews, essentially all other forms of law cannot determine what
process is due; thus, courts will not specifically rely on the Constitution,
statutes, rules, cases, etc.85 Mathews therefore excludes a tremendous body
of law that should be referred to as the possible source for determining what
due process of “law” is required.86
The Due Process Clause should be read to mean that a person whose
life, liberty, or property is subject to government deprivation can demand a
certain process that is owed to him as a right under a law. To identify what
process is owed, courts should identify the sources of law that provide the
procedure the government must follow for the scenario at issue. That is the
process a person can demand the government provide them as a right.
This methodology is not perfect. In difficult situations, where no
specific law established the procedure to follow, judges may differ on what
law may govern.87 This dilemma pales in comparison to the negative
implications of using the Mathews test. Under this new test, at least we
start and comply with the Due Process Clause‟s text. Courts would also
return to the era beginning from the Constitution‟s ratification until the
1930‟s, a time in which balancing tests were not used.88 Ultimately, courts
and lawyers would not have to deal with all the problems I described related
to balancing tests.89 The application of the new test concerns identifying
and analyzing laws that may provide a procedure that governs the
circumstances before the Court. This process follows traditional, accepted
legal research and analytical principles.90
84. Id. at 529 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
85. Aleinikoff, supra note 7, at 988.
86. See Mathews, 424 U.S. at 319.
87. Aleinikoff, supra note 7, at 948.
88. Id.; Coffin, supra note 10, at 18.
89. See supra notes 44-83 and accompanying text.
90. One may question whether my approach is essentially an equal protection analysis
advanced under the guise of the Due Process Clause because this article is ensuring that each
person receive the same process as a similarly situated person received before them. It is true that
the concept of due process and the concept of equal protection are linked. Jane Rutherford, The
Myth of Due Process, 72 B.U. L. REV. 1, 65 (1992). As far back as the Magna Carta the original
idea of due process of law was inextricably entwined with notions of equality. Id. at 65, 68. Due
process, in fact, hinged upon the notion of equality as one of the legitimating bases for the
principle of due process to exist. Id. at 69. The critical distinction between the concepts of due
process and equal protection is that one deals with procedures of law and one deals with the
substance of law. Due process is about rules of procedure, not about the law at issue in the
process. John Harrison, Substantive Due Process and the Constitutional Text, 83 VA. L. REV.
493, 542 (1997). A drafter of a law who wanted to convey a rule about the content of the law
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B. Historical Understanding of the Due Process Clause
As Justice Black stated, some think the Due Process Clause is too
vague for its plain meaning to control its interpretation, but “any possible
ambiguity disappears when the phrase is viewed in light of history and the
accepted meaning of those words prior to and at the time our Constitution
was written.”91
Justice Scalia provided a lengthy historical analysis of the phrase “due
process of law” that I summarize below.92 Apparently, “due process of
law” was first used in a 1354 English statute: “„No man of what estate or
condition that he be, shall be put out of land or tenement, nor taken nor
imprisoned, nor disinherited, nor put to death, without being brought in
answer by due process of law.‟”93 The phrase “due process of law” in the
statute has been equated with the phrase “Law of the Land” in the Magna
Carta, which provided:
No freeman shall be taken, or imprisoned, or be disseised of his Freehold,
or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise
destroyed; nor will we not pass upon him, nor condemn him, but by lawful
Judgment of his Peers, or by the Law of the Land. 94
It is commonly recognized that “due process of law” in American law is
derived from the “Law of the Land” language from the Magna Carta. Legal
scholarship95 and case law recognize this conclusion.96
would not talk about the activities through which that content is enforced, and not about the
process of enforcement. Id. at 541. Due process does not include the requirement of equal
protection in the substance of laws. Bork, supra note 21, at 83. Equal protection, on the other
hand, is directly aimed at ensuring that the substance of a law does not deprive a person of equal
protection.
91. In re Winship, 397 U.S. 357, 378 (1970) (Black, J., dissenting).
92. Pac. Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 28 (1991) (Scalia, J., concurring).
93. Id. (citing Due Process of Law Act 1354, 28 Edw. III, ch. 3).
94. Id. (citing Magna Carta, 9 Hen. III, ch. 29 (1225)).
95. See Peter Zablotsky, From a Whimper to a Bang: The Trend Toward Finding Occurrence
Based Statutes of Limitations Governing Negligent Misdiagnosis of Diseases with Long Latency
Periods Unconstitutional, 103 DICK. L. REV. 455, 479 n.102 (1999) (determining concept of
procedural due process is derived from Magna Carta); Harrison, supra note 90, at 542-43 (stating
a commonplace of 19th Century constitutional law was equivalence of due process and law of the
land); Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy,
and Its Process, 24 FLA. ST. U. L. REV. 1, 7 (1996) (noting Magna Carta introduced procedural
due process to English law); Rutherford, supra note 90, at 9 (noting notions of due process grew
out of Magna Carta‟s “law of the land” language); THOMAS M. COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF
THE AMERICAN UNION 175 (1st ed. 1868) (discussing the law of the land approach), cited in
Harrison, supra note 90, at 523 n.85; Haslip, 499 U.S. at 29 (Scalia, J., concurring) (citing
WILLIAM BLACKSTONE, 2 COMMENTARIES 133 (S. Tucker ed.) (1803), 2 J. KENT,
COMMENTARIES ON AMERICAN LAW 10 (1827); 3 J. STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES 661 (1833)).
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Justice Scalia noted some colonial era state constitutions adopted “law
of the land” language in provisions designed to protect against deprivations
of life, liberty, and property.97 Obviously, these provisions mirror the Due
Process Clause as life, liberty, or property could not be deprived but by the
“law of the land.”98
Justice Scalia reviewed 19th century case law, verifying the Due
Process Clause requires the government provide a procedure under the law
of the land before it deprives a person of life, liberty, or property. In 1856,
the Supreme Court stated:
To what principles, then, are we to resort to ascertain whether this process
enacted by [C]ongress, is due process? To this the answer must be
twofold. We must examine the [C]onstitution itself, to see whether this
process be in conflict with any of its provisions. If not found to be so, we
must look to those settled usages and modes of proceeding existing in the
common and statute law of England, before the emigration of our
ancestors, and which are shown not to have been unsuited to their civil and
political condition by having been acted on by them after the settlement of
99
this country.
Justice Scalia noted that twenty years later, the Court reiterated the
determination of whether a process is appropriate is if the process was
“„according to the settled course of judicial proceedings. Due process of
law is process due according to the law of the land.‟”100
Justice Scalia continued his review of case law, noting that eight years
later, the Court dealt with the relationship between the founding era‟s
common law principles and subsequent law enacted in the United States
96. In re Winship, 397 U.S. at 382 (concluding due process follows the principle of the
Magna Carta that the rule of law governs); Haslip, 499 U.S. at 28-29 (discussing the historical
understanding of due process as equivalent to the Magna Carta‟s “law of the land” language); see
Davidson v. New Orleans, 96 U.S. 97, 101 (1887) (noting the equivalent of the phrase “law of the
land” in the Magna Carta is found in the phrase “due process of law”); Walker v. Sauvient, 92
U.S. 90, 92-93 (1876) (determining due process of law is the process due according to the law of
the land); Murray‟s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276 (1856)
(noting that the words “due process of law” conveyed the same meaning as the words “by the law
of the land” found in the Magna Carta).
97. Haslip, 499 U.S. at 29.
98. Id. (citing N.C. CONST. art. XII (1976) (“No freeman ought to be taken, imprisoned, or
disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed, or deprived of his life, liberty, or property, but by the law of the land.”); MASS.
CONST., art. XII (1780) (“No subject shall be arrested, imprisoned, despoiled, or deprived of his
property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his
life, liberty, or estate, but by the judgment of his peers, or the law of the land.”); see also Harrison,
supra note 90, at 543 n.133 (determining that “law of the land” and “due process” in state
constitutions are synonymous).
99. Id. at 30 (citing Murray’s Lessee, 50 U.S. at 276-77).
100. Id. (citing Walker v. Sauvinet, 92 U.S. 90, 92-93 (1875)).
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when determining what source of “law” provides the process due.101 The
Court concluded a process of law historically sanctioned in England and the
United States would be due process of law, but historical process was not
the only source of due process of law.102 Holding that only processes
historically adopted satisfy due process muster “„would be to deny every
quality of the law but its age, and to render it incapable of progress or
improvement.
It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and Persians.‟”103
Ultimately, Justice Scalia concluded the English procedures brought to the
United States help determine what due process requires.104
Justice Scalia found that complying with the idea behind the Due
Process Clause makes the government follow common-law procedures
before depriving a person of life, liberty, or property.105 But English
common law of the 1600‟s and 1700‟s cannot be “fastened upon American
jurisprudence like a straight jacket.”106 “If the government chooses to
follow a historically approved procedure, it necessarily provides due
process, but if it chooses to depart from historical practice, it does not
necessarily deny due process.”107 Ultimately, Justice Scalia found a harsh
or unwise procedure is not unconstitutional because judges personally think
it is harsh or unwise,108 just as seemingly sensible procedures could violate
the Constitution.109
C. An Appropriate Due Process Test
Justice Black articulated the best test to incorporate the textual and
historical understanding of the Due Process Clause.110 Therefore, the Due
Process clause requires the government proceed according to the law of the
land, that is, according to written constitutional and statutory provisions as
interpreted by court decisions.111 Any deprivations of life, liberty, or
101. Id. at 31.
102. Id. (citing Hurtado v. California, 110 U.S. 516, 528 (1884)).
103. Haslip, 499 U.S. at 30 (citing Hurtado, 110 U.S. at 528-29).
104. Id.
105. Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting).
106. In re Winship, 397 U.S. 357, 381 (1970) (citing Twining v. New Jersey, 211 U.S.
78, 100-01 (1908)).
107. Haslip, 499 U.S. at 31-32.
108. Id. at 39 (citing Corn Exch. Bank v. Coler, 280 U.S. 218, 223 (1930)).
109. Id. (citing Maryland v. Craig, 497 U.S. 836, 860-61 (1990) (Scalia, J., dissenting)).
110. In re Winship, 397 U.S. at 382.
111. Id.; see also Hamdi, 542 U.S. at 589.
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property must be lawful112 as the clause only imposes the rule of law.113
The government must provide the proceedings according to the law of the
land as it exists at the time of the given proceeding.114 If no law directly
applies, courts would apply existing law that most closely mirrors the
circumstances at issue.
Some may criticize this approach as making due process a meaningless
protection. The argument could be that any process established under law
would satisfy due process scrutiny, thus, no procedural protections could be
struck down for violating the clause and the clause would be a tautological
constitutional provision that would always be met.
Professor John Harrison persuasively debunked this argument, noting
many deprivations of life, liberty, and property were not done under law.115
For example, southern governments enacted the Black Codes,116 and
making them provide procedures under law before depriving persons of
their life, liberty, or property was a powerful legal requirement.117 The well
documented governmental abuses in southern states showed the
Constitution could not permit states to act without doing so under law.118
The requirement that a form of law establish the procedure the government
must provide when attempting to deprive a person of life, liberty, or
property is no small protection. A legally afforded process prevents
arbitrary governmental action.
Professor Jane Rutherford argued against the “law of the land” due
process approach as too restrictive because it cannot encompass novel
constitutional violations,119 and allows persons or groups with more
political power to determine what procedures should be utilized.120
These arguments are unpersuasive. First, a law of the land due process
approach is not rigid. As shown in this article, it is the textually and
historically accurate approach. The Due Process Clause‟s meaning cannot
be changed because some think it is too narrow a protection. The people,
however, may change the Constitution by amendment if they wish to
112. Harrison, supra note 90, at 547.
113. Id.
114. In re Winship, 397 U.S. at 378; see also Lino A. Graglia, “Interpreting” the Constitution:
Posner on Bork, 44 STAN. L. REV. 1019, 1045 (1992) (stating because due process must provide
procedural regularity, the imposition of punishment through a deprivation of life, liberty, or
property must be in accordance with pre-established law).
115. Harrison, supra note 90, at 550-51.
116. Id. at 551.
117. Id.
118. Id.
119. Rutherford, supra note 90, at 29.
120. Id. at 41.
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provide broader constitutional protections.121 Those critics of a law of the
land due process approach should stop trying to make due process what it is
not and start making arguments for a constitutional amendment with
language that would meet their position. Second, the argument that a strict
application of due process magnifies the imbalance of power in society is
without merit. Less powerful political groups will be less likely to get
legislation passed that will provide the process they believe persons are due.
But that is an “unavoidable consequence of democratic government,
[which] must be preferred to a system in which each conscience is a law
unto itself or in which judges weigh the social importance of all laws.”122
As Justice Clarence Thomas stated, leaving those less powerful groups
at a political disadvantage could create a feeling that says: “Boy, I really
need to do something. This just isn‟t right.”123 One may infer from Justice
Thomas‟s remarks that the Due Process Clause does not allow judges to
strike a lawful procedure because less powerful political groups did not get
the procedure they wanted passed into law.124 Justice Thomas stated: “[I]t‟s
like watching someone drowning 20 feet below and you only have 10 feet
of rope.”125
Finally, one may criticize the law of the land due process approach as
not protecting the notions of “fundamental fairness” in the Due Process
Clause. This position generally is based on the notion due process requires
“fundamental justice” or “fairness” in all cases.126
This argument is incorrect for two reasons. First, the nexus between
what is the owed procedure and what is the fair procedure is the owed
procedure is the fair procedure. Courts should not conclude what it thinks
is fair,127 but conclude what procedure is owed by reviewing what
procedure is afforded under existing “law.” Since the Constitution is the
document the people ordained and established128 and judges swear to
uphold,129 the document and laws passed in accord with it determine what
process is fair. Justice Black articulated this principle:
I realize that is far easier to substitute individual judges‟ ideas of
121. U.S. CONST. art. V (describing how Constitution may be amended).
122. Employment Div., Dep‟t of Human Res. v. Smith, 494 U.S. 872, 890 (1990).
123. Michael A. Fletcher & Kevin Merida, Jurist Embraces Image as a Hard-Line Holdout,
WASH. POST, Oct. 11, 2004, at A10.
124. See id.
125. See id.
126. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 33 (1991) (Scalia, J., concurring) (citing
Snyder v. Massachusetts, 291 U.S. 97, 108, 116 (1934)).
127. In re Winship, 397 U.S. 357, 377-78 (1970).
128. U.S. CONST. pmbl.; Amar, supra note 56, at 34.
129. U.S. CONST. art. VI, cl. 2.
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“fairness” for the fairness prescribed by the Constitution, but I shall not at
any time surrender my belief that that document itself should be our guide,
not our own concept of what is fair, decent, and right . . . As I have said
time and time again, I prefer to put my faith in the words of the written
Constitution itself rather than to rely on the shifting, day-to-day standards
130
of fairness of individual judges.
Second, the fundamental fairness approach fails because it appears to be
linked with another troubled approach to due process—balancing tests. The
“fundamental fairness” approach apparently began in the 1930‟s,131 just
when balancing tests began.132 Essentially, the concept of “fundamental
fairness” is the inappropriate ends to the inappropriate means of balancing
tests. Once again, Justice Black provided an eloquent critique:
It can be, and has been, argued that when this Court strikes down a
legislative act because it offends the idea of „fundamental fairness‟ it
furthers the basic thrust of our Bill of Rights by protecting individual
freedom. But that argument ignores the effect of such decisions on perhaps
the most fundamental individual liberty of our people—the right of each
man to participate in the self-government of his society. . . . The liberty of
government by the people in my opinion, should never be denied by this
Court except when the decision of the people as stated in laws passed by
their chosen representatives, conflicts with the express or necessarily
implied commands of our Constitution. 133
Leaving the determination of what meets due process muster in the hands of
nine unelected justices could destroy the Due Process Clause. A rogue
Supreme Court could undemocratically expand or contract what process is
due in each circumstance before it. As Justice Black stated, unless we
return to an analysis of the clause based on what it says, “liberty will likely
be more honored in its breach than in the observance.”134
CONCLUSION
Currently, if your life, liberty, or property was at stake, and a court was
not sure what process you were due, you could have to wait and see how a
judge or judges “weighed” your interests compared to the government‟s
interests on some imaginary scale. How to weigh these interests is not
taught, to my knowledge, at any law school. However, law schools
130.
131.
132.
133.
134.
In re Winship, 397 U.S. at 377-78.
Haslip, 499 U.S. at 33.
Aleinikoff, supra note 7, at 948; Coffin, supra note 10, at 18.
In re Winship, 397 U.S at 384-85.
Barenblatt v. United States, 360 U.S. 109, 143-44 (1959) (Black, J., dissenting).
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extensively teach students how to research the law. Law students become
lawyers and lawyers become judges who decide due process cases.
Adopting a “law of the land” due process test would allow these judges to
decide due process case by using the research skills they are trained to use,
as opposed to dusting off that imaginary Mathews scale.