Substantive Due Process Research Articles

America's Disposable Youth: Undocumented Delinquent Juveniles

Through discriminatory rhetoric state and local officials construct delinquent juvenile immigrant youth as the embodiment of a threat to public safety and American values. Accordingly, alleged delinquent undocumented immigrant children who have spent the majority of their lives in the United States, are subjected to discrimination and exclusionary practices, which enable lessened protections under the law. This article critically analyzes how undocumented delinquent youth, mainly Latino males, are constructed through the various narratives of immigrant children that are perpetuated by the media and policymakers, and how this impacts their treatment within the juvenile justice and immigration systems. Central to this analysis is how the immigrant children’s multiple identities of race, class, gender and socio-economic status intersect and impact the Latino delinquent immigrant child’s interactions within these legal institutions. The article examines how increased interior immigration enforcement through the creation of state and local policies for the referral of delinquent immigrant youth to the Department of Homeland Security, Immigration and Customs Enforcement to begin removal proceedings. In examining state and local policies, the article considers the inherent bias and the targeting of particular groups that may develop from varied state and local policies that are not uniform and based on the discretion of political actors. Overall, this article takes a critical look at the contrasting ways in which vulnerable undocumented immigrant youth are defined within these legal systems and how the “othering” of Latino male youth facilitates decreased guarantees of substantive legal protections and due process rights, which reinforce existing hierarchies and stereotypes.

In Search of 'Laissez-Faire Constitutionalism'

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritaran rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the laissez-faire constitutionalism of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of and the iconic, if unrepresentative, substantive due process of the late nineteenth and early twentieth centuries. If we are to draw a line of historical causation between the mid-century vested rights decisions and the so-called laissez-faire constitutionalism of the Lochner era, it must necessarily run through the watershed historical events of slave emancipation and the industrialization of labor, as well as the transformative constitutional changes set in motion by the Reconstruction amendmnets. To the exent that Lochner-era courts did constitutionalize economic liberty in a manner that warrants the label laissez-faire constitutionalism, they were inspired less by the Jacksonian vested rights jurisprudence that preceded the Civil War than by the constitutional and industrial revolutions that followed it.

Roe as We Know It

The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.

State-Action Immunity and Section 5 of the FTC Act

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might not be bound by the Parker doctrine but instead enjoys “superior preemption” authority under Section 5 of the FTC Act. Drawing on the FTC Act’s legislative history and its institutional distinctiveness from Sherman Act enforcement, this Article makes an affirmative case for FTC super-preemption power over anticompetitive state laws.

The Incest Horrible: Delimiting the Lawrence v. Texas Right to Sexual Autonomy

Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very mention of incest conjures fears of deformed babies, yet when people think about sex in most other contexts, procreation is the last thing on their minds. Steeped in a nearuniversal incest taboo, judges are unlikely to strike down incest legislation any time soon. But they must still respond to any constitutional challenge in the language of the law. This Article evaluates the constitutionality of criminalizing sexual relationships between first-degree relatives. First, the Article situates incest statutes within the sociological incest taboo and the biological mechanism known as the Westermarck Effect. It asserts that incest laws are counter-natural exercises in socio-biological engineering. Second, it argues that incest cannot be excluded from the fundamental rights to sexual intimacy and reproduction. Third, it questions the constitutional sufficiency of a range of possible government interests, and the tailoring of existing laws to those interests. Fourth, it proposes revised statutory language that would prohibit certain incestuous relationships without violating the constitution. The Article concludes by suggesting that norms against incest, like norms against same-sex relationships, can change and may already be changing.

State Mandated Vaccinations: Truly Harmless Endeavor or Violation of Substantive Due Process Rights?

This paper examines the nature of substantive due process rights and other important considerations regarding mandatory vaccination laws. It argues in favor of philosophical exemptions predicated on informed consent requirements.

Four ‘Cousins-in-Law’: (1) Substantive Due Process & State-Based Prohibition; (2) Slavery in the Federal Territory; (3) Polygamy and the Fight over Mormon Statehood; & (4) Public School Prayer & Bible Reading Decisions. Who Knew They Were ‘Related’?"

This essay compares four religious, political, and legal controversies in 19 th and early 20 th century America. Each was grounded in the sharp division between the Republican and Democratic Parties’ perspectives on public policy, and all four were fired by religious differences involving the active use of “positive” law and judicial fiat. Several scholars have addressed the emergence in the state courts of substantive due process, as well as the fight in those courts over the use of the bible and school prayer in the public schools. But no one has noted the similar political division there, nor has anyone examined the political or religious affiliations of the state court justices who decided tests of the constitutionality of the early substantive due process cases, or those involving bible reading and school prayer. Two other related issues - the first regarding slavery in the territories; the second, regarding Mormon polygamy and Statehood - will receive briefer attention. The four issues constitute what this essay offers to our understanding of how religiously inspired party politics determined the outcome of these controversies in both state and federal legislatures and state and federal courts. I begin with a well-known judicial controversy, set in the 1840s & ‘50s: the emergence of substantive due process, and I relate it to state efforts to prohibit the sale of alcohol.

What Courts Have to Say About a Nuclear Iran

This article aims to contribute a judicial perspective to the national conversation about Iran’s nuclear ambitions. Methodologically, this article approaches the proposed nuclear framework agreement with Iran through the prism of judicial opinions involving claims against that regime under the Antiterrorism and Effective Death Penalty Act (“AEDA”) amendment to the Federal Sovereign Immunities Act (“FSIA”). Based on a data set consisting of Iranian terrorism and skyjacking cases specifically, this article submits that legal precedent — not political talking points — mitigates against the deal being brokered with Iran now. These court decisions — as with judicial opinions generally — are probative in ways that politicized statements by the president and Congress about Iran cannot be. FSIA and AEDA cases are not talking points to be fact-checked, but fact-centered analyses arising from allegations that have overcome important hurdles such as substantive and procedural due process and rigorous tests under the rules of evidence, including admissibility and reliability. In this context, skyjacking cases show Iran to be a persistent driver of international disorder and offer no factual or legal precedent to suggest a nuclear capable Iran will change its behavior.

The Constitutional Role of the Principle of Substantive Due Process of Law – Focused on the Debate in the U.S. –

The Constitutional Role of the Principle of Substantive Due Process of Law – Focused on the Debate in the U.S. –

A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy's Majority Opinion

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.” This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how both equal protection and substantive due process doctrine have contributed to a constitutional jurisprudence that affirms the rights of same-sex couples. Moreover, the map also takes the sting from Justice Scalia’s complaints in Windsor that the majority failed to ask under substantive due process whether same-sex marriage was a right “deeply rooted in this Nation’s history and tradition” and also failed to clearly articulate a “tier of scrutiny” when considering whether DOMA violated equal protection. As analysis of the opinions represented in the map demonstrates, the Court has long applied tests other than Scalia’s when conducting both substantive due process and equal protection review. Indeed, Kennedy’s doctrinal approach is consistent with precedent and the particular doctrinal traditions advanced by Justices Douglas, Brennan, and Blackmun. This Visual Guide is a single-page PDF “poster” designed to serve as quick reference and teaching tool.

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

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.

Criminal Justice and Constitutional Guarantees of Consensus of the Penal System in Brazil and the U.S.

This article is a comparative study between the criminal systems of Brazil and the US. Initially, examines the US system, which is founded on popular participation in the administration of justice and the consensual truth. The authors analyze the principles of due process and substantive due process of law from judicial interpretations of the US Supreme Court. This system has allowed the US 95% of criminal trails are resolved through negotiation between prosecution and defense, which makes the system faster, efficient and democratic, for allowing the accused to participate in the decision on the criminal sanction that will be reckoned. Finally, the author criticizes the Brazilian legislation, which from the 9099/95 Act introduced the consensual truth in the Brazilian criminal system to crimes punishable by up to two years in prison.

The State's Interest in Potential Life.

Courts have resolved a range of controversies by casual appeal to the state's interest in "potential life" that Roe held capable of overriding even fundamental rights. My analysis of this potential-life interest reveals its use to mean not one but four species of concern. I call these prenatal welfare, postnatal welfare, social values, and social effects and demonstrate how they operate under different conditions and with varying levels of strength.

Meyer, Pierce, and the History of the Entire Human Race: Barbarism, Social Progress, and (the Fall and Rise of) Parental Rights

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority. The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play. Part I of this article looks at what might be the most formative application of stage-theory to family relations, John Millar’s The Origins of the Distinctions of Ranks (1771). Drawing on the sociohistorical work of David Hume and Adam Smith, Millar provides an empirical account of how rights of personal authority (the right of husband over wife, father over children, and master over servant) arise out of and evolve in response to changing socioeconomic conditions. For Millar, there is little doubt that parental authority “has been reduced within narrower bounds, in proportion to the ordinary improvements of society.” A product of the Scottish Enlightenment’s focus on sociability, Millar’s historical critique of paternal authority translated comfortably to the individualistic currents of the nineteenth century. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural and legal historian Henry Maine and the British moral philosopher Herbert Spencer. Though these writers took different routes through the emerging sociological territory of the nineteenth century, they all agreed that the historical record dictated the conclusion that there is no social progress without the repudiation of patriarchalism.With its focus on economic conditions and its pragmatic approach to rights, stage-theory could be put to far more radical uses. In the socialist utopia imagined by Marx and Engels, the private family would vanish along with private property and profit. Part III of this article has two goals: to remind readers that 1) socialist historymaking considered the dissolution of the bourgeois family as a key step toward a stateless state, and 2) this repudiation of the family was no mere doctrinal abstraction for American legal professionals. As the Supreme Court weighed the competing claims of parent and state, the threat of a socialist takeover of the family — “the principle of the soviet” — was always close at hand. In response to this unhappy prospect, the Court drew from the murky, mysterious well of state-constraining liberties we refer to as substantive due process. Repudiating the communistic models of ancient states — Sparta being the poster-child of historical statism — the Court began to write it own story of social progress. Social primitivism lay not in the patriarchal family but in the paternalistic state, and progress did not lie in a movement from personal rights to public responsibilities, but just the reverse. With regard to domestic life, this narrative of progress was one of struggle: a struggle of parental rights against the ever encroaching state. For the modern Court, regulation of the family would no longer be one of the proper functions of government. If history has an ash heap, and if the Court had its way, Sparta would once and for all be relegated to it.

Progressive Legal Thought

A widely accepted model of American legal history is that legal thought, which dominated much of the nineteenth century, was displaced by legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not only simplification and arrangement, but also formalism, in the sense that it presented the law as a complete system. At the risk of some caricature, the data of this system were legal decisions -- a model that reflected not only the penchant for classification but also devotion to the idea that law is essentially judge made and that it evolves over long historical development. Historicism became an important attribute of legal classicism. The authors held up as exemplars are people like Gilded Age Harvard Law Dean Christopher Columbus Langdell and Francis Wharton, the Episcopal priest and prolific legal writer who produced commentaries on many legal subjects. While classical legal thought was generally anti-statist on economic matters, it was not libertarian. In fact, it advocated heavy state regulation of morals even as it supported liberty of contract without state interference as a general matter. The anti-legislative bias of legal classicism readily accommodated doctrines such as economic substantive due process, which originated mainly in the state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century.The classical-to-progressive model of historical explanation is far too narrow to account for the profound changes in American law that occurred during the decades straddling 1900. These changes were embraced by a wide spectrum of jurists and legal thinkers, not merely by the subgroup that styled themselves progressive. For example, both the left and the right embraced important revisions in their conception of the market, as well as contract law, corporate law and finance, labor law, and even the law respecting wealth redistribution. Oliver Wendell Holmes, Jr.'s approach to law is much better understood as marginalist than as either Darwinian or Realist. The increased reach of the federal commerce power into business activity that affected commerce was driven by marginalist economic theory showing how monopoly or other dislocations at one level of production could distort all others. In sum, classical legal thought would have collapsed even if progressives had never showed up.This historical model persists, however, mainly because it serves the interests of both the defenders and opponents of the institutions we have come to associate with progressive legal thought -- namely, the welfare state, increasing public involvement in economic development, the rise of regulatory agencies with broad quasi-judicial and quasi-legislative powers, deferential judicial review of economic legislation, broader federal regulation of markets, and aggressive judicial review of government actions injuring underrepresented minorities.

Inventing the Classical Constitution

One recurring call over a century of American constitutional thought is for return to a understanding of American federal and state Constitutions. does not necessarily mean originalist or interpretivist. Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a to which everyone in some initial position agreed. Like any contract, it would make every participant a winner. The participants have liberty and property rights antecedent to the state, but choose to give up as little of these as needed to empower government. Because insisting on either unanimous consent or individual voter participation on every issue is impractical and unwise, republican representative government comes into existence. But then it is essential that this government act consistently with the and not be captured by factions, or special interests.The result is constitutionalism that is wary of legislation as excessively vulnerable to special interest capture, suspicious of non-unanimous direct democracy tools such as initiatives and referenda because they often disrespect individual rights, and severely critical of most forms of economic regulation. With this distrust of legislation comes a reliance on judges to get the right answer, striking down statutes as unconstitutional even when the court's mandate is not explicitly stated in any constitutional language.This article argues, first, that the Constitution was not classical in its inception. Historically it was pre-classical, particularly on matters of private and property rights and government intervention in the economy. That conclusion is consistent with its text, but even clearer from contemporary perspective, as well as early court interpretation. Second, a distinctively perspective on the Constitution came later, as the influence of Adam Smith's Wealth of Nations and his English and American followers filtered through American academies. The adoption of classical views resulted from the Jacksonian movement, which began in the 1820s. It took root in federal constitutional doctrine with Jackson's appointment of Chief Justice Roger B. Taney, an economic liberal. Classical liberal views increasingly influenced both state and federal constitutional thought well into the twentieth century, although state courts interpreting their own constitutions led the way. These included a reversal of Chief Justice Marshall's broad reading of the federal commerce power, a strong antiregulatory bias favoring private markets, suspicion of monopoly, the rise of a theory of inverse takings so as to limit the government's power to engage in economic development that harmed private property, development of a technical and narrowly focused patent system as an exception to this hostility toward monopoly, legislative capture justifications for judicial review, and a strong view of liberty of contract. As these doctrines expanded, however, constitutional doctrine began to depart more significantly from constitutional texts.While constitutional classicism was liberal in its economics, it was not libertarian. Even the strongest advocates for laissez faire in constitutional economic theory also favored strong regulation of morality on fundamentally Christian grounds. These views characterized both the great Gilded Age public law treatise writers as well as the Supreme Court. Third, one defining element of classical political theory -- the social -- never captured an important following in American mainstream constitutional thought, not even during the founding and early national periods or the later heyday of constitutional classicism. While judges and constitutional writers sometimes spoke of a contract or compact, they almost always meant the text of a constitution or some other authoritative document. They rarely advocated for a doctrine that would enable them to jump off the ratified text to some unnamed fundamental principle. Even the academic and judicial architects of economic substantive due process during the Gilded Age and Progressive Era did not typically rely on the idea, and some of them forcefully rejected it. Fourth, and concluding, the idea that classical constitutional doctrine was displaced by progressive constitutionalism is also wrong, or at least wildly exaggerated. The constitutional revolution that occurred during the first four decades of the twentieth century was certainly supported by self-identified progressives. But support for change was broader and much more centrist, driven by changes in economic theory that today are accepted by liberals and conservatives alike. This makes it impossible to go back.

Lochnerian Values, Mandatory Compensatory Damage Caps, and Lessons from the Sixth Amendment Jury Trial Clause

The Court’s recent punitive damage award jurisprudence finds its origin in Lochner v. New York’s guarantee of substantive due process protection for economic rights. This jurisprudence (1) establishes a reasonable review for punitive damage awards and (2) sets the disparity between punitive awards and compensatory awards for economic and noneconomic damage as the one of the starting points for determining whether the punitive award is reasonable. In so doing, the Court explicitly presumes the plaintiff has received full compensation for actual and concrete losses. This presumption is false as it applies to States that have imposed caps against compensatory damage awards in personal injury cases. Most caps were initially intended to reign in “excessive” civil jury verdicts, which had allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no cap is triggered by a preliminary finding of excessiveness. Moreover, trial judges are stripped of authority to determine whether application of the cap is just or fair to the (often) severely injury plaintiff. Unlike most works on this subject, this Article investigates the impact of compensatory damage caps on the Court’s reasonable review of punitive damage awards. This Article discusses state laws that mandate fixed or capped damage awards in medical malpractice and other tort cases. This Article also discusses the State Supreme Court split on whether compensatory damages caps encroach upon state civil jury trial rights, which like their federal counterpart find their interpretative basis in the English common law. All States recognize the historic origin of the civil jury trial right. Yet even among States with identical civil jury trial clauses an analysis of State Supreme Court jurisprudence leads to a stalemate about the nature and scope of the right to a civil jury. State Supreme Courts also conflict on whether legislative authority exists to alter a jury’s determination of the value of an injury in common law cases. This Article offers a novel approach to compensatory damage caps by turning to the Sixth Amendment Criminal Jury Trial Clause, which has recently questioned whether legislative authority exists to remove the jury from the sentencing process. This jurisprudence offers three lessons about jury trial rights: first, modern procedures cannot significantly alter certain common law characteristics of the jury trial right; second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases; and third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article concludes by applying these lessons to compensatory damage caps. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance the States’ dual interests to protect both civilly liable defendants from unreasonably high awards and severely injured plaintiffs from unreasonably low awards.

Using a nursing student conduct committee to foster professionalism among nursing students.

This article explains how a university nursing program in the United States created and implemented a nursing student code of conduct and a faculty-led nursing student conduct committee to review and adjudicate violations of academic or professional misconduct. The need for and role of the nursing student conduct committee in providing substantive and fair due process is illustrated with two cases. Professional misconduct has been associated with preventable error and patient safety and is of great concern to nurse educators who are entrusted with producing the next generation of nursing professionals. Accountability and consequences for violations of professional standards must be an integral part of the nursing education curriculum throughout the world to ensure quality and safety and mitigate the adverse effects of nursing error. Given the professional and patient safety implication of such violations, the authors believe that it is prudent to have nursing programs adjudicate nursing majors' professional violations as an alternative or supplement to the general university judicial board.

Comments on the <i>Riggs</i> Case as used in the 'Historians and Legal Scholars' Amicus Brief in the <i>Hobby Lobby</i> Obamacare Mandate Case

The “Historians and Legal Scholars” amicus brief in the 2014 Hobby Lobby case tries to make the case that historically courts treated ordinary corporations as having rights different from non-corporate persons and nonprofit corporations. This paper looks at one of the main cases it cites, Northwestern National Life Insurance Co. v. Riggs, 203 U.S. 243 (1906). In that case the Court denied Lochner-style substantive due process protection to a life insurance corporation that claimed state law could not void fine print contract clauses that would allow it to escape paying claims if its customer had made even a non-material error in filling out its forms. The statute applied to all insurance, however, not just to corporations. Moreover, Lochner is dead; nobody, whether natural person or corporation gets that kind of 14th Amendment protection nowadays, so the case’s relevance is dubious even if it did hinge on the plaintiff’s status as a corporation. In any case, corporations at that time had rights very different from corporations today because the doctrine of ultra vires was alive and well, so a corporation’s behavior was tightly controlled by the wording of its corporate charter. In applying historical cases to current jurisprudence, one must look at the historical context and be wary of simply extracting quotes from judicial opinions.

What the New Deal Settled

This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from the shadow Lochner v. New York casts over arguments that may be characterized (even inaccurately) as sounding in economic due process. The ACA litigation demonstrates one way in which Lochner's anticanonicity distorts modern legal argument.