The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the Court had dealt the death blow to the Privileges or Immunities Clause, it did continue, in a limited way, to protect individual rights under the Due Process of Law Clause of the Fourteenth Amendment. This was through the doctrine now called “Substantive Due Process.” (In Chapters 3 and 4 of The Conscience of The Constitution, I explain why Substantive Due Process is the correct reading of the Due Process Clause—notwithstanding the mountains of scorn heaped on it by both left and right. But I won’t repeat that here, since I touched on the issue when I last guest-blogged here, and also wrote about it at Cato Unbound two years ago.)
The focus of the clash was never so much the concept of “substantive due process”—which was almost universally accepted until the New Deal era—as it was over the nature of sovereignty and the relationship between liberty and democracy. Those who held that government power was primary, and individual rights only privileges extended by the state never went away; on the contrary, by the opening years of the twentieth century, they had made significant advances.
The intellectual history here has yet to be fully explored—and is beyond the scope of my book—but I suspect that the general outlines of the story are these: the intellectual class of the Confederate cause, having been stripped by the Fourteenth Amendment of eligibility for office, and now no longer brash young men, moved into the universities…
Read the rest at The Volokh Conspiracy