Laissez-faire conservative thinkers are making a comeback in the academy. Once derided as apologists for big business, such
jurists as Thomas Cooley and Stephen Field are increasingly seen as proponents of a coherent and challenging vision of the
American constitutional regime. Conservative thinkers now dare to suggest that the judicial decisions protecting the freedom of
contract were constitutionally correct. Many liberals who disagree nevertheless celebrate the Fuller Court for establishing
precedents that were later used to protect abortion rights and other progressive concerns. Edward Keynes's LIBERTY,
PROPERTY, AND PRIVACY: TOWARD A JURISPRUDENCE OF SUBSTANTIVE DUE PROCESS also urges a return to
the late nineteenth century Court's conception of due process. Unlike previous calls, however, Keynes is less concerned with
achieving partisan results than with developing a better understanding of a judicially appropriate approach to protecting
fundamental rights. The result is a good history of due process and an interesting, though incomplete, theory of constitutional
interpretation.
Professor Keynes's solid historical analysis maintains that "due process includes a substantive as well as a procedural component"
(x), that the framers of the post-Civil War constitution "articulated views that are compatible with substantive due process" and
"made the federal courts a custodian of the individual's fundamental rights" (xiii), that the post-Civil War Court properly interpreted
the constitution as banning "purposeless restraints," "partial or class legislation that promotes a particular group's interest or
imposes its values without serving the public welfare" (xv), and that, in sharp contrast to late nineteenth century judicial uses of
substantive due process, late twentieth century judicial uses of substantive due process have "failed to provide a convincing
rationale for distinguishing among various unenumerated rights" (164) and have "failed to resolve the basic conflict between
competing claims of private rights and public interest" (xiv).
This history is for the most part clearly written and persuasive. The early chapters are particularly notable for their modesty.
Unlike many authors who reach definitive and politically convenient conclusions on the basis of one case or an ambiguous hint in a
legal treatise, Keynes frankly admits that determining the precise meaning of due process before the Civil War is a bit like "reading
tea leaves" (20). Few lengthy antebellum disquisitions on due process exist, and those that do exist are often unclear. For every
clear statement that due process was limited to judicial procedure, an equally clear and authoritative statement can be found that
due process clauses were understood to prohibit arbitrary or capricious legislation. Still, Keynes's honest review of the extant
literature should convince readers that substantive understandings of due process have at least as good a pedigree in the American
constitutional tradition as exclusively procedural understandings.
Keynes is also clearly correct when he maintains that the framers of the fourteenth amendment intended to provide federal
legislative and judicial protection for certain natural rights. Again, he recognizes that no geometrical demonstration can be made of
the framer's intent, but best evidence does indicate that the Reconstruction Congress was committed to preventing arbitrary
interference with certain fundamental rights, most notably rights associated with property (58). Late nineteenth century justices
implemented this constitutional decree by insisting that legislation trenching certain liberties have a clear relationship with some
legitimate public end (111). Most legislation satisfied that test. Measures that were clearly designed to protect certain interests or
redistribute property from one person to another, however, were rightfully, in Keynes's opinion, declared unconstitutional.
Alas, Keynes maintains, when the contemporary court revived substantive due process, the justices abandoned the public welfare
test and adopted a "balancing approach [that] is basically flawed, no matter which level of scrutiny or standard of judicial review
particular justices employ" (215). Moreover, Keynes adds, the present judicial refusal to scrutinize any regulation of economic
bargaining is premised on an unjustified distinction between "property, economic, [and] other personal liberties" (135) Persons
expecting a jeremiad against the direction of recent judicial policy making, however, will be either disappointed or surprised,
depending on their political preferences. LIBERTY, PROPERTY AND PRIVACY exhibits a refreshing concern with the forms
of judicial reasoning and is uninterested in grinding partisan axes. Thus, Keynes thinks the result in ROE V. WADE (1973) was
correct (188) and questions the judicial reasoning in BOWERS V. HARDWICK (1986) (188). His normative argument is simply
that when adjudicating due process claims, justices should limit themselves to "examin[ing] the degree to which [a] regulation
burdens [a constitutional liberty]" and "determin[ing] whether the regulation . . . actually advances the public welfare" (168).
Judges, Keynes asserts, should not "balance competing public and private interests, which is a legislative rather than a judicial
function" (168-69).
LIBERTY, PROPERTY, AND PRIVACY breaks little historical ground, but offers a better, more balanced, history of
substantive due process than standard works whose major animating purpose seems to be to provide yet another attack or defense
of ROE. A question can be raised, however, as to how the framers of the post-civil war constitution sought to provide federal
protection for certain natural rights. Substantive due process implies a direct form of protection. Legislators would not be permitted
to violate rights unless they could demonstrate a clear public purpose. On another view, the equal protection clause does more
work protecting rights than Keynes acknowledges. The Civil Rights Act of 1866, the immediately predecessor of the fourteenth
amendment, gave all persons a statutory right to the liberties enjoyed by members of the most favored class in the community. If
one assumes, as the Reconstruction Congress did, that legislatures do not violate the natural rights of the most favored class of the
community unless compelled to do so by some pressing public need, then strict enforcement of equal protection will guarantee that
no one's natural rights are abridged.
More serious problems exist with the normative discussions in LIBERTY, PROPERTY, AND DUE PROCESS. To begin with,
although theoretical differences exist, Keynes's claim that "[u]nless the legislation clearly serves a valid purpose, the state would
be barred from unduly burdening or destroying [constitutional] rights" (168) is likely in practice not to differ significantly from the
court's present balancing approach. Indeed, Keynes's analysis may better explain what the modern court has actually been doing
than the typical majority opinion in due process cases. Moreover, the set of constitutionally valid purposes is not clearly defined.
Keynes does not sufficiently explain, for example, why "collective-bargaining and minimum wage laws" are "class legislation"
(151-52) and not, as democratic socialists believe, measures that serve the public interest. Similarly, pro-life advocates (and many
pro-choice advocates) will dispute the bald assertion that the "Texas criminal abortion statute" at issue in ROE "did not have a
rational relation to any legitimate state interest" (188). Keynes does maintain that the due process clause bars legislation that is
"little more than an attempt to impose a particular group's will on the public through government" (159). He needs to say more,
however, on why bans on abortion satisfy that definition of class legislation, while legislation banning private discrimination and
protecting the environment (which also might be described as efforts "to impose a particular group's will on the public through
government") are deemed to promote valid public policies. In short, the book would have benefited from a separate chapter
devoted to delineating what fundamental rights Americans have and what purposes their government may serve. Such a chapter
might state more clear than Keynes does that "purposeless restraints" do not exist in a vacuum, but only with respect to a political
theory that defines the legitimate powers of government (a law granting unlimited power to the editor of this book review, after all,
is not purposeless).
The weaknesses of the last chapter, in fairness, are probably the consequence of the general historical orientation of LIBERTY,
PROPERTY, AND DUE PROCESS. Professor Keynes has written a fine analysis of historical understandings of due process.
As is often the case with historical works, he has including a series of prescriptions for future developments at the end, which in
their present form are not sufficiently developed to command assent. Still, Professor Keynes deserves much credit for providing a
solid historical foundation upon which he and other scholars can establish a more convincing basis for establishing and protecting
the fundamental rights of American citizens.
Cases Cited
ROE V. WADE, 410 U.S. 113 (1973).
BOWERS V. HARDWICK, 478 U.S. 186 (1986).
