to endorse what we would now call a “substantive” interpretation of the Due Process Clause was not, as is commonly held, Dred Scott v. Sanford, but rather Bloomer v. McQuewan several years earlier.
Here’s the key language:
it can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property after he had purchased the absolute and unlimited right from the inventor, and when that property was no longer held under the protection and control of the general government, but under the protection of the state, and on that account subject to state taxation.
The 5th Amendment to the Constitution of the United States declares that no person shall be deprived of life, liberty, or property without due process of law.
The right to construct and use these planing machines had been purchased and paid for without any limitation as to the time for which they were to be used. They were the property of the respondents. Their only value consists in their use. And a special act of Congress, passed afterwards, depriving the appellees of the right to use them certainly could not be regarded as due process of law.
Note the Court’s reliance on due process, even though the more specific language of the Takings Clause was available to it.
The Court’s statement must be counted as dicta, however, because it went on to state that “we forbear to pursue this inquiry, because we are of opinion that this special act of Congress does not and was not intended to interfere with rights of property before acquired.” Nevertheless, the assertion that the origins of substantive due process in the Supreme Court lie solely in Dred Scott, and somehow SDP must have derived from pro-slavery sentiment, is incorrect. (Not to mention the fact that abolitionists were at least as likely as pro-slavery forces to appeal to “substantive due process”, in the former case to support the liberty rights of slaves, especially slaves, like Scott, taken into federal territory).
UPDATE: Arguably, the due process point in Scott was also dicta, because the Court held that Scott, as a person of African descent, had no standing to sue in federal court. And I should have noted that this post was inspired by Tim Sandefur’s post below, discussing myths regarding “substantive due process”–itself an anachronism because no one in the 1850s, or indeed until the 1930s, would have been familiar with the phrase.