You may have read from time to time about “substantive due process.” The Constitution twice requires governments to provide due process of law before depriving people of life, liberty, or property. The Supreme Court has interpreted these clauses to invalidate certain types of laws—laws against slavery, against freedom of contract, and against abortion—on the ground that due process protects certain rights regardless of the procedures used to enact the offending policies. Judicial conservatives (but not only them) have often criticized substantive due process as a contradiction in terms with a terrible origin in Dred Scott. But it has sometimes been argued that substantive due process has roots that long preceded that case.

NRO contributor Matthew Franck, writing for American Political Thought: A Journal of Ideas, Institutions, and Culture, has produced the most illuminating discussion of the concept and history of substantive due process that I have ever read. (It is not, alas, available to the public online.) He demonstrates that the concept of due process had for centuries included the notion that valid laws could not have the character of decrees or judicial judgments: They could not, for example, transfer property from one specific person to another.

This understanding of due process could be said to offer substantive protections. But it was not at all like the modern concept of substantive due process. Franck writes:

In each of the state-level cases cited by scholars for the proposition that substantive due process can be found before the Civil War, the real ground of the decision was this separation-of-powers principle of “due process of law” . . . . More importantly, none invalidated a statute of general application and prospective effect, regulating future behavior or conduct, which is the central characteristic of the modern substantive due process rulings that gave the doctrine its name. Whether every one of those cases was correctly decided or not, the reasoning in them was a lineal descendant from that which informed Webster, Coke, and Magna Carta itself.

Dred Scott really was, then, a “watershed,” a break with what Franck calls the “authentic due process tradition,” but one that disguised itself as a continuation of it. That this disguise still generates confusion is one of many insights in Franck’s new essay.