What Happened to the Due Process Clause in theDred ScottCase? The Continuing Confusion over “Substance” versus “Process”

Abstract

AbstractConventional wisdom holds that “substantive due process” first appeared in Supreme Court jurisprudence in the Dred Scott case. Some scholars have attempted to show that the seeds, or even the full growth, of this constitutional doctrine appeared much earlier. Whenever it first appeared, controversy rages over whether substantive due process is a legitimate interpretation of the Constitution’s two due process clauses. The argument here is that both the historical and the interpretive controversies have been largely misplaced. There is a “substantive” element to due process, namely, its protection of norms of the rule of law, as against rule by decree. But this is a far cry from the policy judgment role now routinely assigned to the courts under the rubric of substantive due process. The Dred Scott case does represent a turning point in the history of due process, but not quite the turning point it is usually thought to be.