In Defense of Substantive Due Process, or, The Promise of Lawful Rule
68 Pages Posted: 13 May 2011 Last revised: 12 Jan 2012
Date Written: May 12, 2011
Perhaps no doctrine in constitutional law is more often attacked than the theory of “substantive due process.” Lawyers, law professors, and judges have denounced and ridiculed the idea for decades. While there have been several excellent explanations and defenses of the doctrine – especially from an historical basis – there remains a need for a conceptual explanation of how due process works in its substantive and procedural dimensions.
Drawing on political philosophy and history, this essay seeks to fulfill that need and to understand substantive due process on its own terms. I contend that the due process of law guarantee is an effort to reduce government power to a comprehensible, rational, and principled order – to require government to act lawfully, where lawfulness incorporates norms of generality, regularity, fairness, rationality and public-orientation. The Due Process Clause promises that government will not act without good reasons. What sorts of reasons are “good” is a normative question, but the Constitution is a normative document, and while contemporary discourse often treats normative matters as irrational, subjective preferences, the Due Process Clause is based on the premise that there is a genuine difference between law and arbitrary command; between justice and mere force.
Keywords: substantive due process, due process of law, constitution, formalism, positivism, natural law
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