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"The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name ___ If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."
Cummings v. Missouri1
INTRODUCTION ............................................................ 284
I. DUE PROCESS OF LAW AS A PROMISE OF LAWFUL RULE ................................... 286
A. Law as the Opposite of Arbitrariness ......... 287
B. Means-Ends Rationality and the Constitution .................................................... 294
C. Arbitrariness and Government by Whim ......................................................... 295
D. Rule by the Ruler's Self-interest as an Illusory Principle ................................. 299
E. Generality, Regularity, and Fairness .......... 307
F. The Redundancy Argument ........................ 312
II. THE LOGIC OF SUBSTANTIVE DUE PROCESS OF LAW ........................................... 314
A. Procedural and Substantive Lawlessness .................................................... 314
B. How Implicit Limits Apply in Due Process Cases ..................................... 320
C. Incorporation as a Due Process Requirement.. ................................... 326
III. PROBLEMS WITH A PROCEDURE-ONLY APPROACH TO DUE PROCESS LAW ........................................... 328
A. Procedural Lawfulness Makes Sense Only Within a Broader Normative Commitment to Substantive Lawfulness ................................ 328
B. Formally Evenhanded Rules Can Still Be Substantively Arbitrary ................................ 332
C. Can Absolutely Any Order Be a Lawful Order? ............................................................. 335
D. Substantive Due Process and Democracy ..342
CONCLUSION ................................................................ 350
INTRODUCTION
Perhaps no doctrine in constitutional law has produced so much calumny as the theory commonly known as substantive due process. Supreme Court Justices left and right have denounced the idea,2 professors have ridiculed it,3 and for decades it has been a commonplace of law schools that substantive due process is an oxymoron4 or a trick by which judges enforce their own policy preferences into law.5 Indeed, there seems to be a sort of competition among detractors for the most colorful way of ridiculing the doctrine. On the face of it this seems odd; if substantive due process is such obvious folly, how is it that so many of the greatest minds of the Anglo-American legal tradition- from every ideological background- have subscribed to it? This Article is an effort to put away childish ridicule and to understand substantive due process on its own terms. Although there have been several excellent explanations and defenses of the doctrine- especially from a historical basis, showing that the idea...