In “about the strangest turnabout in jurisprudence,” Hadley Arkes wrote in 1994, “[t]he most conservative of our judges have absorbed the jurisprudence of the New Deal and the jural reflexes of Hugo Black.” 1 That jurisprudence and those reflexes may elude definitive statement, but their general outlines are clear enough. In deference to majorities, this approach tells us, judges should practice judicial restraint. In constitutional cases, they do so largely by following the text of the Constitution and the original intent of its framers. Only when judges decide in this fashion can they legitimately overturn a legislative choice by declaring some statute unconstitutional. Due to its emphasis on original intent in the interpretation of constitutional language, this position is sometimes called originalism or interpretivism. As Arkes’s remark suggests, today it is largely the property of conservatives.
As Chapter 1 related, this argument has clear implications for substantive due process. The original meaning of Fifth and Fourteenth Amendment due process, we are continually told, is procedural and nothing else. This means that courts are acting illegitimately when they use due process to strike down substantive government action. Specifically, they are using a judicially concocted doctrine to invalidate laws made by the people’s elected representatives. Another originalist argument against substantive due process applies specifically to its Lochner-era variant. The liberty protected by Fifth and Fourteenth Amendment due process, some say, simply does not contain freedom of contract; and freedom of contract was central to Lochner-era substantive due process. Thus, the old Court also acted illegitimately when it struck down government action on freedom-of-contract grounds.