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Evan Bernick: Substantive Due Process Justice Thomas Could Love
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Optimizing the Oxymoron: Substantive Due Process Justice Thomas Could Love (George Mason Law Review, forthcoming) on SSRN.  Here is the abstract: 

Originalists generally reject the proposition that the Due Process of Law Clauses of the Fifth and Fourteenth Amendments not only require that certain procedures be followed prior to any deprivations of “life, liberty, or property” but also constrain the content or substance of legislation. This Article defends "substantive due process" on originalist grounds. It then undertakes to improve substantive due process doctrine by deploying the theory of good-faith construction developed in previous articles, as well as tools drawn from cognitive psychology, welfare economics, agency cost theory, and public choice theory.

Part I briefly describes the leading originalist criticisms of substantive due process. Part II summarizes the the originalist case for judicial review of legislative deprivations of life, liberty, or property to determine whether those deprivations are calculated to achieve constitutionally proper ends or are instead arbitrary. It argues that the Due Process of Law Clauses were originally designed to thwart arbitrary deprivations of life, liberty, and property, and that due process of law doctrine should be designed to implement that original spirit. Part III provides an overview of the constitutional heuristics—strategies used to simplify constitutional decisionmaking—that the judiciary has used to thwart arbitrary legislation since the Fourteenth Amendment’s ratification. It then develops a strategy that will better equip judges to reduce the costs associated with the abuse of legislative discretion.

The Article ultimately calls upon the Supreme Court to reaffirm the standard of rational-basis review that was articulated and applied in United States v. Carolene Products. The default standard of constitutional review of state legislation that deprives people of life, liberty, or property should be similar to what it was before the Court embraced what can been termed the political judgment rule—a form of rational-basis review that effectively insulates legislation from scrutiny for arbitrariness. That default standard should, however, be informed by a coherent understanding of the states’ reserved “police” powers—one which holds that exercises of those powers must be calculated to reduce negative externalities—and a realistic model of legislative behavior.