Vol. 13 No. 2 (February 2003)

DUE PROCESS OF LAW: A BRIEF HISTORY by John V. Orth. Lawrence: University of Kansas Press, 2003. 128 pp. Cloth $25.00.  ISBN 0-7006-1241-6. Paper $9.95.  ISBN 0-7006-1242-4.

Reviewed by Bradley D. Hays, Department of Government and Politics, University of Maryland. Email: bhays@gvpt.umd.edu.

The Due Process Clauses are arguably among the most important and controversial provisions in the United States Constitution.  The long and winding history of due process frequently leaves students confused and scholars befuddled.  In short, the topic calls out for a concise introduction to the concepts behind due process and a guide through its evolution.  John V. Orth fills that need with his book.

As noted in the book’s title, Professor Orth offers a brief history of due process.  In attempting to cover the history of due process from Magna Carta through recent landmark cases such as WASHINGTON v. GLUCKSBERG, the author creates three central “hypothetical cases that served as paradigms in the legal history of due process” (p. viii).  The first hypothetical case, “making a man a judge in his own case” is used to illustrate procedural due process.  Next, the author uses the case of “taking from A and giving to B” to illustrate the development of substantive due process regarding economic liberties.  Finally, the latest paradigm, “taking from A,” is used to highlight noneconomic substantive due process.

Professor Orth uses the first hypothetical case to lay the historical foundations for due process.  The narrative begins with the English common law and the early evolution of due process principles.  Orth distills the prohibition of making a man a judge in his own case by examining the works of Littleton, Coke, and Blackstone and highlighting the seminal DR. BONHAM’S CASE.  The effect is three-fold.  First, examining the works of several early legal thinkers exposes the origins of due process and concepts that ground its early development.  Second, DR. BONHAM’S CASE illustrates how and why the courts could intervene to protect against what would come to be understood as violations of due process.  Third, equally important to the story of due process, Orth notes the early struggle to establish judicial review in England and how those struggles played out in the United States with different results. 

Orth next considers “taking from A and giving to B.”  Here the author uses CALDER v. BULL to note the early appearance of constitutional proscription against takings even though explicit textual prohibition is absent from the Constitution.  CALDER elucidates the use of due process as a bulwark against “violation[s] of natural justice”(p. 49).  Yet the emphasis is not simply on due process, but rather on the use of due process to protect property. 

As Orth observes in the subsequent chapter, the prohibition of taking from A and giving to B shifted from a ban on transfer of property to a prohibition on class legislation—changing the meaning of “A” and “B” from persons to groups.  A brief treatment of the “LOCHNER era” reveals the implications of shifting due process to encompass certain substantive rights.  Orth ends the chapter on economic substantive due process by highlighting footnote four of US v. CAROLENE PRODUCTS and the foreshadowing of the noneconomic substantive due process to come.

The final hypothetical, “taking from A,” highlights the rise of noneconomic substantive due process.  Whereas economic substantive due process maintained the traditional “taking from A and giving to B” paradigm, noneconomic substantive due process removes B from the formula.  Instead, “[t]aking away [individual] rights, whether by the legislature or by the executive, must be justified and may not be arbitrary…” (p. 97).  Orth notes how the Supreme Court struggled to deal with the post-LOCHNER specter of substantive due process.  In GRISWOLD v. CONNECTICUT, the Court relied upon “zones of privacy” emanating from several amendments in the Bill of Rights rather than rest solely on the liberty provision of the Fourteenth Amendment.  However, Orth correctly notes that the legacy of GRISWOLD was defined by the Court’s decision in ROE v. WADE, wherein substantive due process was used as a restriction on state action in the form of a restrictive abortion law.  The author concludes his summary of the “taking from A” paradigm by noting the difficulty the Court has had in locating “accepted standards for arbitrariness” of state action without an economic context, thereby making rights based on substantive due process controversial and elusive (p. 97).

The strength of Orth’s book is in his flowing and accessible narrative.  As noted in the preface, “[t]he book is written ‘above the lines’” so all vital information is in the text and not in footnotes (p. xi).  Further, the use of footnotes, instead of tedious endnotes, adds to the accessibility for those seeking to read above and below the lines.  Finally, I was pleased to see that the author included translations of Latin phrases directly in the text.  Too many scholars either place translations in footnotes or, worse, give no translation at all leaving the text choppy and frustrating to those not proficient in Latin.  Orth is to be commended for writing in such lucid prose and formatting the text to complement the work.

To a large extent, it would be perfectly appropriate to end the review here.  The work achieves its goal of providing a brief history of due process.  Yet, any author crafting a brief history must make certain choices so as to abridge the subject matter.  These choices are inevitably subject to dispute.  In the case of Orth’s book, the choice was in the way to tell the history of due process through the use of paradigms.

Orth’s use of hypothetical cases gives the impression that legal principles develop much like the evolution of a paradigm.  In fact, Orth uses Thomas Kuhn’s paradigmatic shifts as an analogy for the change in legal maxims (p. 5).  However, according to Kuhn, much of science is “an attempt to force nature into the preformed and relatively inflexible box that the paradigm supplies” (1970, 24).  Kuhn goes on to note that once the paradigm can no longer contain the emergence of new theories, it is destroyed and replaced by a new paradigm (1970, 66-91).  In order to understand the fall of one paradigmatic regime and the creation of another, one must understand external developments.  Relating Kuhn back to Orth, in order to understand the rise and fall of the various due process paradigms, we need to understand more than just what the Court said in a few cases.

From reading Orth’s book, one gets the sense that legal change simply happens.  Influences outside the Court, such as changing social, political, and economic conditions, and internal influences, such as membership change, ideological alignment of the justices, and personal influences, are left unexamined.  As a result, Orth’s history of due process is left floating free from many of the traditions, influences, and institutions that ground it.  This is a conscious decision by the author as noted in his introduction, yet the book would have been stronger – and no doubt longer – if the author had added greater context to the development of due process. 

Nonetheless, these criticisms should not take away from the success of the book in providing what it promises—a brief history of due process.  The book will be useful for undergraduate civil liberties courses and to any scholar looking for a brief introduction or refresher on due process.

REFERENCES

Kuhn, Thomas S. 1970. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS, 2^nd ed. Chicago: University of Chicago Press.

CASE REFERENCES

CALDER v. BULL, 3 US 386 (Dall.) (1798).

DR. BONHAM’S CASE, 8 Co. Rep. 107a, 114a CP 1610 (1610).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

LOCKNER v. NEW YORK, 198 US 45 (1905).

ROE v. WADE, 410 US 113 (1973).

US v. CAROLENE PRODUCTS, 304 US 144 (1938).

WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).

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Copyright 2003 by the author, Bradley D. Hays.