Note: "reasonable" is Sandefur's basis for substantive due process as detailed in In Defense of Substantive Due Process. regularity, generality, fairness, rationality, and public-orientation.
This essay is another One Hundred Authors Against Einstein

2023-09-13: Green Twelve Problems with Substantive Due Process 2018

I present twelve quick problems for the idea that “without due process of law” in the Fifth or Fourteenth Amendments can be tolerably paraphrased as “unreasonably”.
I structure my Article normatively, as twelve attacks on the doctrine stemming from Munn v. Illinois and exemplified most notoriously in Lochner v. New York and Roe v. Wade that any unreasonable restrictions on liberty are ipso facto unconstitutional. (399)
... our Due Process Clauses only require that governments act lawfully, not that restraints on liberty have a sufficiently weighty justification. Disproportionate and otherwise deeply unjust laws can therefore be enforced with “due process of law.” Limits on the substantive content of law appear elsewhere, such as in the First Amendment or the Fourteenth Amendment’s Privileges or Immunities Clause. (399) My take on Dred Scott v. Sandford thus distinguishes sharply between the Court’s holding on due process (which the Court used to declare the Missouri Compromise unconstitutional) and its holding on federal citizenship (which the Court denied to African Americans). (400) I see the Court’s due-process holding as making a simple mistake: assuming that moving to free territories with slaves is not itself a violation of the law. (400)
Dred Scott inferred the lack of African-American citizenship from their lack of equal citizenship, which it inferred from degrading practices like marital segregation. (400)
With the Fourteenth Amendment guaranteeing freedmen the rights of American citizenship.... Citizenship entails equal citizenship .... (400)
Reliance on substantive due process is therefore a mere surface flaw in Roe that could be remedied by switching to the Privileges or Immunities Clause. (400)
My twelve problems with substantive due process consist of three quartets: four English problems, four antebellum American, and four from Reconstruction. (400)

  1. The Texts of the Predecessor English Statutes Concern Lawfulness, not Substantive Reasonableness
  2. In Context, Predecessor English Statutes Obviously did not Grant the King Parliament-Trumping Reasonableness Review
  3. The Absence of Due Process in Bonham’s Case
  4. Blackstone says Disproportionate Sentences are Consistent with Magna Carta and with the 1331 and 1354 Statutes
  5. Sixth Amendment “Process” refers to Fact-Finding Writs
  6. Antebellum Substantive Due Process Examples Concern Only Anti-retroactivity Principles, not Reasonableness Review
  7. Republicans Morally Condemned Slavery but Agreed that Slaves could be “Lawfully Claimed” and “Lawfully Reclaimed”
  8. Lincoln’s Response to Dred Scott Makes the Classic Anti-Substantive-Due-Process Inference from the Fifth Amendment
  9. “Duly Convicted” in the Thirteenth Amendment Allows Disproportionate Sentences
  10. “Law” in the Privileges or Immunities Clause Entails neither Justice nor Reasonableness
  11. Reverdy Johnson Thought the Privileges or Immunities Clause, not the Due Process Clause, was Dangerously Open-Ended
  12. Due Process Covers All Persons, but Freedmen Received the Special Privileges of Citizens
"It is unnecessary to say that the "equal protection of the laws" required by the Fourteenth Amendment does not prevent the States from resorting to classification for the purposes of legislation. Numerous and familiar decisions of this court establish that they have a wide range of discretion in that regard. But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." F. S. Royster Guano v. Virginia 253 U.S. 412 (1920) Table of Contents