Author: Timothy Sandefur
They point out that there’s a lot in this decision that is disappointing to defenders of property owners and entrepreneurs, and they’re right. Particularly dispiriting is Justice Scalia’s statement on page 16 “that the ‘liberties’ protected by Substantive Due Process do not include economic liberties.” This is simply a falsehood. Neither the Supreme Court nor any other court of which I am aware has ever said that the liberties protected by substantive due process do not include economic liberty. On the contrary, every case of which I am aware has said the opposite, from Meyer v. Nebraska to Nebbia v. New York to Kelo v. New London.
True, the courts don’t give these liberties a high standard of review under the due process clause—they apply the lenient “rational basis” standard—but they have always, in every single case, said that economic liberty is protected at least to some degree by the due process clause. Justice Scalia’s statement that economic liberty is “not include[d]” in the liberty protected by the Constitution may be an overhasty generalization, but whatever it is, it is simply not true.
It’s unfortunate to see the courts deriding substantive due process. As I explain in my newly published article, “Privileges, Immunities, And Substantive Due Process,” that concept is a crucial protection for constitutional freedom, and entirely justified on historical, logical, and philosophical grounds.
Update: Cato's Ilya Shapiro also has some comments here.