QUESTION: I am having trouble separating the controversy surrounding the incorporation of the Bill of Rights from the doctrine of substantive due process. Is it correct to say that substantive due process arose from a belief that there are rights "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" that were not included in the Bill of Rights, and therefore couldn't be incorporated?
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).