The History Of ‘Substantive’ Due Process: It's Complicated

12 Pages Posted: 1 Feb 2017

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Date Written: January 30, 2017


The history of what has come to be known as substantive due process is fraught with political implications, even more so now that same-sex marriage has joined abortion as a right protected by the Court under the rubric of due process. It’s tempting to create a simplified version of the past that explains how we got from point A to point B, and that implicitly or explicitly teaches some profound lesson about the present. History, rarely truly lends itself to such convenience. It’s complicated.

With that in mind, this essay discusses a recent Texas Law Review article by Joshua Hawley. Hawley seeks to demonstrate that modern substantive due process jurisprudence was a novel invention of the Warren and Burger Courts, having no significant antecedents in the due process jurisprudence of the so-called Lochner era. Hawley makes some eminently reasonable points, especially with regard to how the Court replaced its historic natural-rights-based constitutionalism with a positivist understanding of the law that invites Justices to read their own philosophical views into the Due Process Clauses. Nevertheless, not all of Hawley’s claims are persuasive. In this essay, I complicate the story Hawley tells, by discussing alternative and additional explanations for the developments he discusses.

Keywords: Constitutional Law, Due Process Clause, Fourteenth Amendment, Fundamental Rights, Lochner v. New York, Natural Rights, Substantive Due Process, U.S. Supreme Court

JEL Classification: K10, K30

Suggested Citation

Bernstein, David Eliot, The History Of ‘Substantive’ Due Process: It's Complicated (January 30, 2017). Texas Law Review, V. 95, No. 1, pp. 1-11, 2016, George Mason Legal Studies Research Paper No. LS 17-06, Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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