This month’s Cato Unbound is devoted to the propriety of judicial enforcement of substantive rights through the Due Process Clause. Tim Sandefur of the Pacific Legal Foundation gets things rolling with a rousing defense of SDP. Responses have been posted or are due from Professor Larry Rosenthal of Chapman Law School, attorney Ryan Williams (the author of an important recent article on the origins of substantive due process that I blogged about here), and B.U. Law School’s Gary Lawson. It should be a very enlightening and engaging debate.
For what it’s worth, I’d like to see Sandefur address the following issue as the debat goes on: if we were to agree arguendo that the Due Process Clause protects unenumerated substantive rights, how aggressive should the judiciary be in identifying and enforcing those rights? Are there, for example, instances in a which a judge could rightfully conclude that if he were a state legislature he would find a particular piece of legislation an undue interference with individual rights, and therefore vote against it as contrary to substantive due process, but as a judge he should defer to the contrary views of the legislature?