• About the Current Issue: What Is Due Process? ^[1]

Lead Essay

• Why Substantive Due Process Makes Sense ^[2] by Timothy Sandefur ^[3]

  Timothy Sandefur argues that the phrase "due process of law" is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. "Citizens are entitled to procedures only because they are entitled to lawful treatment," Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

• Not So Fast, Mr. Sandefur ^[4] by Lawrence Rosenthal ^[5]

  Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. "The First Amendment expressly limits the scope of legislative power," he writes, "[but] the Due Process Clause does not." Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn't necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

• Substantive Due Process in Historical Context ^[6] by Ryan Williams ^[7]

  Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of "due process of law" did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

• Would Half a Loaf by Any Other Name Throw Out the Baby? Why Sandefur is Both Right and Wrong about Substantive Due Process ^[8] by Gary Lawson ^[9]

  Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

The Conversation

• The Limits of Unenumerated Rights ^[10] by Timothy Sandefur ^[3]
• Is My Argument True to the Original Meaning? ^[11] by Timothy Sandefur ^[3]
• General and Specific Guarantees of Lawful Rule ^[12] by Timothy Sandefur ^[3]
• Substantive Due Process and Original Meaning ^[13] by Lawrence Rosenthal ^[5]
• Come to My Side, Prof. Rosenthal — We Have Humility and Prudence! ^[14] by Timothy Sandefur ^[3]
• Law, History, and the Meanings of Words ^[15] by Ryan Williams ^[7]
• Is Everything Congress Passes Really a Law? ^[16] by Timothy Sandefur ^[3]
• Several Responses to Sandefur on Due Process ^[17] by Gary Lawson ^[9]
• The Perils of Judicial Tyranny ^[18] by Lawrence Rosenthal ^[5]
• Searching for the Missing Link ^[19] by Timothy Sandefur ^[3]
• Dred Scott and Other Fallacies of Substantive Due Process ^[20] by Timothy Sandefur ^[3]
• Lawson on Original Meaning ^[21] by Lawrence Rosenthal ^[5]
• Why Voting Isn't Due Process of Law ^[22] by Timothy Sandefur ^[3]
• The Hard Questions about Meaning ^[23] by Timothy Sandefur ^[3]

Related at Cato

• Daily Commentary: A Cheer for Judicial Activism ^[24], by Clint Bolick, April 3, 2007
• Podcast: Beachfront Property and Substantive Due Process ^[25] by Ilya Shapiro, June 28, 2010
• Book Forum: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ^[26] by David Bernstein, May 2, 2011
• Book Forum: The Right to Earn a Living
  How Government Stifles Initiative and Harms Economic Growth by Timothy Sandefur, September 20, 2010
• Legal Brief: Lawrence v. Texas ^[27], amicus curiae brief of the Cato Institute, June 1, 2003