The Conservative Origins of Strict Scrutiny

12 Pages Posted: 6 Mar 2013 Last revised: 11 Mar 2013

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2012


Debate over judicial engagement under the Fourteenth Amendment generally starts from the presumption that strict judicial scrutiny of laws that infringe on important rights is a liberal or Progressive idea in both origins and effects. Despite other differences, the Supreme Court's traditionalist critics and Lochner era revisionists agree on one important matter-that it was exclusively the Progressive wing of the Court that planted the seeds of modern fundamental rights jurisprudence. According to both camps, any pre-New Deal antecedents to this jurisprudence can be found in the opinions of Justices Holmes and Brandeis and later Justice Stone, and not in those of their non-Progressive colleagues.

This Essay challenges the received wisdom regarding the pre-New Deal Court's majority's due process jurisprudence. In particular, before modern liberals took control of the Supreme Court in the late 1930s, the Court’s conservative majority had in several cases expressed its willingness to override the states’ police powers to protect important liberties.

Part I describes the Court's early Fourteenth Amendment Due Process Clause jurisprudence and its unwillingness to privilege substantive rights over valid police-power rationales. Part II of this Essay discusses several later instances in which the Supreme Court invalidated legislation under the Due Process Clause even though the Court acknowledged that the state had asserted legitimate police-power justifications for the laws in question. In doing so, the Court anticipated modern fundamental rights jurisprudence.

Keywords: civil liberties, class legislation, due process, Howard Gillman, individual liberty, Privileges or Immunities Clause, due process Slaughterhouse cases, Social Darwinism, police power

JEL Classification: I18, J18, J28, J38, J78, K32

Suggested Citation

Bernstein, David Eliot, The Conservative Origins of Strict Scrutiny (2012). George Mason Law Review, Vol. 19, No. 4, 2012, George Mason Law & Economics Research Paper No. 13-19, Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

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