In Defense of Substantive Due Process, or the Promise of Lawful Rule
Sandefur, Timothy, Harvard Journal of Law & Public Policy
"The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."
Cummings v. Missouri (1)
INTRODUCTION I. DUE PROCESS OF LAW AS A PROMISE OF LAWFUL RULE A. Law as the Opposite of Arbitrariness B. Means-Ends Rationality and the Constitution C. Arbitrariness and Government by Whim D. Rule by the Ruler's Self-Interest as an Illusory Principle E. Generality, Regularity, and Fairness F. The Redundancy Argument II. THE LOGIC OF SUBSTANTIVE DUE PROCESS OF LAW A. Procedural and Substantive Lawlessness B. How Implicit Limits Apply in Due Process Cases C. Incorporation as a Due Process Requirement III. PROBLEMS WITH A PROCEDURE-ONLY APPROACH TO DUE PROCESS LAW A. Procedural Lawfulness Makes Sense Only Within a Broader Normative Commitment Substantive Lawfulness B. Formally Evenhanded Rules Can Still Be Substantively Arbitrary C. Can Absolutely Any Order Be a Lawful Order? D. Substantive Due Process and Democracy CONCLUSION
Perhaps no doctrine in constitutional law has produced so much calumny as the theory commonly known as substantive due process. Supreme Court Justices left and right have denounced the idea, (2) professors have ridiculed it, (3) and for decades it has been a commonplace of law schools that substantive due process is an oxymoron (4) or a trick by which judges enforce their own policy preferences into law. (5) Indeed, there seems to be a sort of competition among detractors for the most colorful way of ridiculing the doctrine. On the face of it this seems odd; if substantive due process is such obvious folly, how is it that so many of the greatest minds of the Anglo-American legal tradition--from every ideological background--have subscribed to it? This Article is an effort to put away childish ridicule and to understand substantive due process on its own terms. Although there have been several excellent explanations and defenses of the doctrine--especially from a historical basis, showing that the idea was well known when the Constitution was ratified and at the time the Fourteenth Amendment was enacted (6)--there remains a need for a conceptual explanation, and this Article seeks to fulfill that need. What exactly is due process of law? Why do substantive and procedural aspects of due process overlap in the way they do? How does the due process of law requirement fit within constitutional law and with broader political and philosophical considerations?
The due process of law guarantee is an effort--one with deep roots in the history of western civilization-to reduce the power of the state to a comprehensible, rational, and principled order, and to ensure that citizens are not deprived of life, liberty, or property except for good reason. What sorts of reasons are "good" is obviously a normative question, but notwithstanding the arguments of many critics of substantive due process, the Due Process Clause invites--indeed, requires--courts and legal scholars to take seriously the idea that there are real answers to such normative questions. Though contemporary discourse often treats normative matters as essentially irrational, subjective preferences, (7) the Due Process Clause is based on the opposite premise: that law and arbitrary command, justice and mere force genuinely differ. And the idea of a lawful political order depends on recognizing that difference.
We cannot, in approaching the Due Process Clause, hope to avoid normative questions. The Constitution--from its opening commitment to the "Blessings of Liberty" (8) to its closing reference to rights "other" than those specified in its text (9)--is a thoroughly normative document, one that binds the government to act lawfully, where lawfulness incorporates norms of generality, regularity, fairness, rationality, and public-orientation. …