Pagedale and the Rule of Law: Matthew Franck's Unoriginal Case Against Substantive Due Process

Few doctrines have a worse reputation among conservatives than "substantive due process"--the idea that the Constitution's guarantee of "due process of law" imposes inherent limits on the exercise of government power. It is therefore unsurprising that a recent column by conservative columnist George Will in which Will praised the doctrine and called for it to be enforced in the Institute for Justice's suit against Pagedale, Missouri ruffled some feathers. Will, drawing upon the scholarship of libertarian lawyer Timothy Sandefur, argued that Pagedale's pernicious practice of imposing fees on residents for innumerable harmless activities, including walking on the left side of a crosswalk, opening a beer within 150 feet of a grill, wearing pants that sag below the waist, or having a basketball hoop in their front yards, deprive residents of their liberty and property without due process of law. Matthew Franck has responded harshly, arguing that "substantive due process" is "atextual" and "ahistorical" nonsense with which no originalist should have anything to do. He also argues that those who support it cannot claim the authority of Marshall, Hamilton, or Madison.

Franck is wrong on all counts. So-called substantive due process is firmly grounded in constitutional text; rooted in ideas about the function and limits of government that were accepted by the Founding generation; and critical to ensuring that the courts perform their appointed function as "bulwarks of liberty." It is Franck who breaks with Marshall, Hamilton, and Madison. Sandefur has already effectively demolished Franck's arguments; I come to spread salt on the ground, lest he (or others) seek to build upon it again.

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