Notable Debate on Substantive Due Process

Over a decade ago, I became involved as one of the more minor players in the blogsphere in a debate over unenumerated rights. The biggest player was of course Randy Barnett. And my blogfather Timothy Sandefur was involved in the debate then. Over the course of the decade, Sandefur has become more of a heavy hitter in the discourse.

A timely similar debate has arisen over the the doctrine of "substantive due process," something part of the unenumerated rights discourse. Constitutional issues that deal with the "rights of man" are like a game of whack a mole. If you don't find them under the privileges or immunities clause, they will pop up out of the due process clause and elsewhere. Arguably, they spring out of the Declaration of Independence.

When I noted above that Sandefur is more of a "heavy hitter" it's because of things like the (to my mind) pleasantly surprising drift of the venerable George Will towards libertarianism and Sandefur's influence on Will in this regard. Check out Will's column here.

So here is Timothy Sandefur v. Matthew Franck. Here is a piece by Evan Bernick attacking Franck's position. Below I excerpt from Franck's piece because, discussing Will's article, it contains links to a debate he had with Hadley Arkes on the Declaration of Independence and its justiciability under America's system of constitutional law.

A taste:

... Transforming due process into an all-purpose clause for overturning laws that fail to live up to the moral vision of judges was the work of Dred Scott, and continued in Lochner v. New York, Roe v. Wade, and—most recently—Obergefell v. Hodges. Conservatives and constitutional originalists should have no truck with this ahistorical, anti-textual jurisprudence, which may occasionally achieve desirable results for political justice but will always traduce the proper limits of judicial power. (Interested readers can follow a recent exchange I had with Professor Hadley Arkes, who expatiates on Will’s view more thoroughly, through several installments: Arkes1, Franck1, Arkes2, Franck2, Arkes3, Franck3.)

Invoking the Declaration of Independence does not help to make the case for judicial adventurism in this field. ...