Almost fifty years after the Supreme Court revived the doctrine, substantive due process remains a puzzle. Detractors insist it is nothing more than judicial policy making. Defenders say it accords with the deepest values of the Constitution. But on all sides, the present scholarly debate suffers from an impoverished understanding of modern substantive due process's intellectual history, which has led to an impoverished understanding of the doctrine's core normative content. It is time for a revisionist turn. This Article supplies that turn by excavating the intellectual origins of modern substantive due process and relating that history to the doctrine's development. Ultimately, the Article offers a thoroughly revised account of the modern doctrine's beginnings, development, and meaning. The core of the story is this: modern substantive due process depends on a coherent and thoroughly modern notion of liberty, grounded in the ideas- of personal authenticity and self-development. The modern doctrine's history begins in the Lochner era, but its debt to Lochner is not the one critics usually claim. Rather, modern substantive due process is rooted in the critique of the police powers jurisprudence developed by the opponents of Lochner. This critique rejected the central elements of an older view of liberty, including natural rights and the distinction between the public and private spheres. In the decades that followed Lochner's demise, liberal theorists connected this modernist outlook to a venerable ethic of individual authenticity to fashion a new understanding of human rights and political liberty. This new concept of liberty emphasized personal moral choice and autonomy' rather than private property and the right to contract. By the early 1960s, this view of liberty had achieved widespread support among opinion makers and by the end of that decade, became the basis for a new reading of due process. The revised account developed here challenges a good deal of conventional wisdom, including the claims of the recent Lochner revisionists like David Bernstein and Randy Barnett who argue that modern substantive due process is in one way or another an intellectual extension of the Lochner era. It also challenges the claims of those, like Jack Balkin, who contend that the modern doctrine can be linked directly to the Constitution's original meaning. Instead, this Article shows modern substantive due process for what it is: an original, modern, and controversial reading of liberty.
Joshua D. Hawley, The Intellectual Origins of (Modern) Substantive Due Process, 93 Tex. L. Rev. 275 (2014)