Several days ago Ramesh Ponnuru was kind enough to remark on The Corner that he liked an article I’ve just published in the journal American Political Thought. I’m happy to say that the editors of APT and the University of Chicago Press are making the article available free to the public for a limited time, at this link. Many thanks to the editors, Michael Zuckert and Adam Seagrave.

Titled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion Over ’Substance’ vs. ’Process,’” the article explains the original understanding of “due process of law,” traces the emergence of the misbegotten expression “substantive due process” in the twentieth century, examines the idea’s origins as a distortion of the historic meaning of due process in the nineteenth, and tracks down its roots in the Dred Scott case of 1857. Where I think I have broken new ground is in debunking the claim that there are any sound precedents, before Dred Scott, for treating the due process clause as the ground for invalidating general, prospective regulations or prohibitions of conduct. There are none. The justification for so mistreating the due process clause–a justification conspicuously lacking in Dred Scott itself–did not develop until the decades following the Civil War, when the Court then had two due process clauses to play with. Substantive due process is, after all, a gravely mistaken reading of the Constitution, in several ways. Too bad it has its adherents on both left and right.