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

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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