'Lead Essay' Category Archive

Why Substantive Due Process Makes Sense

by Timothy Sandefur
Lead Essay
February 6th, 2012

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 not mere ritual or procedure; it also requires judges to ask whether the law serves public or merely private ends.

Read: Why Substantive Due Process Makes Sense