A lot of conservatives, and some libertarians, have made a point of attacking or ridiculing the legal theory of substantive due process. I think a lot of these criticisms are misleading, unfair, or misinformed—and I think that substantive due process is a valid legal theory, and one that is central to our constitutional form of government.
I make that argument in an article that’s just been published in the latest issue of the Harvard Journal of Law & Public Policy, which you can read online here.
Let me add that I tried very hard to avoid legal jargon or technical terminology in this article, and I hope very much that it is as readable to the layman as to an attorney.
The centerpiece of the article comes in Part II. I argue, in brief, that substantive due process is all about lawful authority. One can analogize the government to a bank guard, who’s hired to stand in the bank with his gun and his badge and make sure nobody robs the bank. But what if the guard were to take out his gun and rob the bank for himself? Surely that’s not within the scope of his authority as a guard. And yet there’s nothing in his employment contract that explicitly says he’s not allowed to rob the bank. So can he? Of course not—because one of the obvious, implicit premises of his work as a guard is that he should protect the bank against being robbed. For him to rob the bank himself is to abuse his authority, even though nobody thought to say in the contract that he can’t rob the bank. (Amazingly, there actually is such a case in real life: Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp., 496 So. 2d 246 (Fla. Dist. Ct. App. 1986).)
In just the same way, when the government acts in an arbitrary, or self-interested, or unreasonable way, its actions exceed the scope of legitimate authority—those actions are not lawful, and therefore violate the “due process of law” promise.
I’m hopeful that my article will spur some much-needed, serious discussion of the idea of substantive due process, particularly among conservative and libertarian lawyers, law professors, and judges.