Replies

When I went to law school in the mid-1980s, the concept was alive and well. My Con Law professor, whom I suspect was personally liberal but in his teaching was very fair and even handed, encouraged a debate over the merits of Substantive Due Process. I left with the opinion that the biggest flaw with SDP was its inherent subjectivity.

By the way, the origins of Substantive Due Process can be traced all the way back to James Otis' arguments in the Writs of Assistance Case in 1761.

http://nhinet.org/ccs/docs/writs.htm

You can see these arguments picked up and echoed by Justice Chase in Calder v. Bull in 1798:

There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law or to take away that security for personal liberty or private property for the protection whereof of the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.

https://supreme.justia.com/cases/federal/us/3/386/case.html

Chase stated that the Court has the power to strike down a statute if such is in violation of "positive law."

In his concurring opinion, Justice Iredell stated the more restrictive view of judicial review; that the act had to be contrary to a specific provision of the Constitution. Iredell specifically questioned the subjectivity inherent in Chase' approach:

If any act of Congress or of the legislature of a state violates those constitutional provisions, it is unquestionably void, though I admit that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case. If, on the other hand, the legislature of the Union or the legislature of any member of the Union shall pass a law within the general scope of its constitutional power, the court cannot pronounce it to be void merely because it is in its judgment contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

This debate lay dormant for exactly one century until Allgeyer v. Louisiana and Lochner v. New York, and became dormant again after West Coast Hotel v. Parrish. However, the seeds of its return were laid in Footnote 4 of United States v. Carolene Products, and saw full bloom in Griswold v. Connecticut. It only became clear that the seeds had sprouted into legal kudzu in Roe v. Wade.

I left with the opinion that the biggest flaw with SDP was its inherent subjectivity.

I totally agree. It is that subjectivity that leads to my belief that the doctrine is incompatible with a republican form of government because the law isn't being made by the elected representatives of the people, but instead is being made by judges applying "positive law" or "vital principles" or "the living Constitution." It is nothing more than the judge's subjective belief what the law should be but once it is encrusted into constitutional law it is very difficult to change, unlike statutes passed by legislatures.

And thanks for the very interesting citations!