Timothy Sandefur has a new article out in Harvard-JLPP arguing the case FOR substantive due process on philosophical and originalist grounds. It is not, he argues, something judges just made up.
He has a fascinating passage on John Milton. Milton was a notable Whig thinker who greatly influenced America's Founders and whose influences has been much neglected.
From JOHN MILTON, The Tenure of Kings and Magistrates in THE STUDENT’S MILTON
758 (Frank Allen Patterson ed., rev. ed. 1936) (1650):
[T]o say kings are accountable to none but God, is the overturning of all law and government. For if they may refuse to give account, then all covenants made with them at coronation, all oaths are in vain, and mere mockeries; all laws which they swear to keep, made to no purpose: for if the king fear not God (as how many of them do not,) we hold then our lives and estates by the tenure of his mere grace and mercy, as from a god, not a mortal magistrate; a position that none but court parasites or men besotted would maintain! Aristotle, therefore, whom we commonly allow for one of the best interpreters of nature and morality, writes in the fourth of his Politics, chap. x. that “monarchy unaccountable is the worst sort of tyranny; and least of all to be endured by free‐born men.”
And surely no Christian prince . . . would arrogate so unreasonably above human condition, or derogate so basely from a whole nation of men, his brethren, as if for him only subsisting, and to serve his glory, valuing them in comparison of his own brute will and pleasure no more than so many beasts, or vermin under his feet, not to be reasoned with, but to be trod on . . . .
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