Positive Liberty

In a post below I discussed Prof. Buchanan’s call for amending the Constitution to prohibit government from using its power to benefit particular interest groups at the expense of other groups.

I said that the generality requirement is already in the Constitution—it’s called substantive due process. I then explained de Jasay’s argument that, because the public choice effect will cause constitutional change as well as statutory change, we cannot really expect a generality requirement in the Constitution to survive the erosion pressure of private interest groups that demand particular benefits. Worse, the generality requirement cannot really limit the power of government because there are an indefinite number of variables which can determine whether one group or one case is “like” or “unlike” another group or case—which means that requiring government to “treat like cases alike” or “treat all similarly situated groups the same,” won’t really do anything. When we decide what cases are alike, or what groups are “similarly situated,” we automatically load the dice with normative concepts that will lead inevitably to public choice distortions.

Here’s the historical evidence—and how it affects eminent domain. In Loan Association v. Topeka, 87 U.S. 655 (1874), the first of the real substantive due process cases,* the Supreme Court reiterated that the concept of “law” is the opposite of “arbitrariness.” Arbitrariness, of course, means to employ political power for one’s benefit simply because one is powerful. In Cass Sunstein’s words, arbitrariness is the idea of granting “naked political preferences,” and the due process of law provision imposed a “minimum requirement that government decisions be something other than a raw exercise of political power.” Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1692 (1984). The Loan Association Court explained that if the legislature were to “enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B,” this would violate the Due Process Clause, because “[t]o lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.” 87 U.S. at 663. Note the distinction between “legislation” and a “decree.” Legislation, or law, must be general—must accomplish some public goal rather than the private interest of particular groups. See also Laurence Tribe, American Constitutional Law 1365 (3d ed. 2000) (“legislatures, at least in their regulatory capacities, must always act in furtherance of public goals transcending the shifting summation of private interests through the political process.”)

Ten years after Loan Association, the Supreme Court decided Hurtado v. California, 110 U.S. 516 (1884), one of the first great substantive due process cases. There, the Court explained that

Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, “the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,” so “that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society,” and thus excluding, as not due process of law…acts directly transferring one man’s estate to another…and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Abritrary power…is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.

Id. at 535-36. This suggests one of the major flaws in the whole discussion over eminent domain since the 1930s: the Constitution’s prohibition on private benefits from eminent domain does not occur in the public use clause per se, but in the due process clause. The public use clause isn’t really an independent clause, but part of the just compensation requirement, which “presupposes what the Government intends to do is otherwise constitutional” under the Due Process Clause. Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring in result).

The Loan Association/Hurtado interpretation of Due Process is is great, of course, but there’s the big problem that, as de Jasay argues, it doesn’t really accomplish anything. A law is passed forbidding bakers from working overtime. Is that an arbitrary exercise of power? Is it merely a special rule for a particular person or a particular case? It only applies to bakers, and not to any other group, a point which the Lochner Court emphasized when striking down the law. 198 U.S. 45, 57 (1905). On the other hand, as Justice Harlan argued in dissent, there are reasonable causes for limiting the reach of the law to bakers only, and surely it would be unreasonable to require the legislature to abide by such a degree of generality that it was forced to blind itself to the obvious relevant differences between bakers and other kinds of people or laborers. De Jasay predicts that the generality rule is so elusive that it cannot resist the public choice pressures.

And, of course, that’s exactly what the history reveals. After Lochner, the Court began allowing more and more specific labor regulation. Sunstein, who sees this development as a good thing, of course, describes it this way:

In the post-Lochner era, a wide range of justifications count as exercises of the police power and are not treated as naked wealth transfers. The police power is properly used to safeguard the interests of groups or sub-groups of workers, of consumers, of the victims of discrimination. There has thus been a shift from the strong to the weak version of the prohibition of naked preferences. One consequence of this development has been to make the line between naked preference and public value quite thin in practice…. If protection of the class of statutory beneficiaries is itself seen as a public value, many exercises of raw political power—even if in the service of faction—become automatically justifiable. Current law reflects such perceptions.

Supra at 1718. And, of course, the exact same thing can be said of the public use clause in eminent domain. As more and more government intervention in the marketplace was accepted by the Court and the populace, the line between public use and private use became “quite thin in practice” as well. This is why I argue that the Kelo problem cannot be solved without serious rethinking of political philosophy.

*—The substantial intellectual power of Loan Association and similar cases reveals the inaccuracy of the familiar claim that substantive due process was simply conjured up to do the work of the Privileges or Immunities Clause which was destroyed in Slaughterhouse. Substantive due process is constitutionally valid, and would be so even in some alternate universe in which Slaughterhouse had been rightly decided.

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