Rational Basis with Economic Bite
It all begins with an idea. The central thesis of The Classical Liberal Constitution is that the normative theory of classical liberalism underlies the Constitution, and indeed “the constitutional provisions with the longest staying power have consistently drawn their strength from classical liberal theory.” It is therefore surprising when Richard Epstein observes that “the due process guarantee has succeeded because its essential ingredients map onto the requirements for the rule of law, precisely because its procedural requirements are not tethered to any particular view of substantive law.” Just a few pages later, however, Epstein explains that the scope of the due process guarantee is defined by a Lockean scheme of natural rights. The Due Process Clauses protect “life, liberty, and property,” the phrase being a self-conscious invocation of “John Locke’s famous trio of ‘lives, liberties, and estates,’ the preservation of which explains themselves under government.” The Lockean conception of natural rights, of course, is tethered to a particular view of substantive law and excludes competing conceptions. For this reason, Epstein acknowledges “a tight connection between procedural bias and the substantive protection of life, liberty, and property.” So the due process guarantee turns out to not be so substantively neutral.
