Why Substantive Due Process Makes Sense
by Timothy Sandefur
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.
Not So Fast, Mr. Sandefur
by Lawrence Rosenthal
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
by Ryan Williams
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
by Gary S. Lawson
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 Limits of Protecting Unenumerated Rights by Timothy Sandefur
- Is My Argument True to the Original Meaning? by Timothy Sandefur
- General and Specific Guarantees of Lawful Rule by Timothy Sandefur
- Substantive Due Process and Original Meaning by Lawrence Rosenthal
- Come to My Side, Prof. Rosenthal — We Have Humility and Prudence! by Timothy Sandefur
- Law, History, and the Meanings of Words by Ryan Williams
- Is Everything Congress Passes Really a Law? by Timothy Sandefur
- Several Responses to Sandefur on Due Process by Gary S. Lawson
- The Perils of Judicial Tyranny by Lawrence Rosenthal
- Searching for the Missing Link by Timothy Sandefur
- Dred Scott and Other Fallacies of Substantive Due Process by Timothy Sandefur
- Lawson on Original Meaning by Lawrence Rosenthal
- Why Voting Isn’t Due Process of Law by Timothy Sandefur
- The Hard Questions about Meaning by Timothy Sandefur
- What About States and the Federal Government? by Timothy Sandefur
- Sandefur on Text, History, and Dred Scott by Lawrence Rosenthal
- Why Chapman And McConnell Are Wrong About Substantive Due Process by Timothy Sandefur
- Some Closing Thoughts on the Protection of Law by Timothy Sandefur