The Meming of Substantive Due Process

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word “due” cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process — whether judicial, administrative, or legislative — that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a “precedent,” in the nature of other legal propositions within a common law system.

This Essay explores the intellectual and social history of the substantive-due-process-as-contradiction meme and argues that it is often appropriate for judges to rely upon such memes even if their underlying claims lack analytic integrity. Judicial opinion writing in constitutional cases is best understood as an act of translation between the decisional process of the judge and the representations necessary to validate the decision within the constitutional culture.