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95 Tex. L. Rev. See Also 1 (2016-2017)

handle is hein.journals/seealtex95 and id is 1 raw text is: Texas Law Review See Also Volume 95 Essay The History of Substantive Due Process: It's Complicated David E. Bernstein* In a recent Texas Law Review article,' Joshua Hawley provides a brief, elegant narrative of the rise, decline, and revival of the Supreme Court's substantive due process jurisprudence since the Civil War.2 According to Hawley, the postbellum Supreme Court adopted a natural-rights-based un- derstanding of due process of law that limited the scope of the govern- ment's authority over the private sphere. The Due Process Clause was thought to protect liberty-liberty meant protecting contract and property rights from unreasonable or arbitrary government interference; and protect- ing contract and property rights from unreasonable or arbitrary government interference meant limiting the scope of government's authority to regulate under the inherent police powers.3 In Lochner v. New York,4 the majority's police-powers jurisprudence collided with Justice Holmes's powerful moral skepticism, as expressed in his famous and influential dissent. Holmes rejected the underlying natural- rights premise of the Court's due process decisions and abjured any test that * George Mason University Foundation Professor, Antonin Scalia Law School, George Ma- son University. 1. Joshua D. Hawley, The Intellectual Origins of (Aodern) Substantive Due Process, 93 TEXAS L. REV. 275 (2014). 2. The phrase substantive due process is anachronistic when applied to the period before the 1940s. The conceptual separation of due process into substantive and procedural parts arose later. See JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 103-04 (2d ed. 1998); G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 245 (2000). 3. Hawley, supra note 1, at 282-96. 4. 198 U.S. 45 (1905).

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