The Substantive Due Process Triumvirate: Health, Safety, and Morals

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Book Chapter

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Classical legal theory was antagonistic toward state economic regulation and heavily suspicious of special interest “capture.” The resulting constitutional doctrine came to be called “substantive due process,” the Supreme Court’s first sustained experiment with constitutional interpretation not grounded in explicit constitutional text. The Court recognized exceptions for regulation of “health, safety, or morals”—a triumvirate repeated in hundreds of judicial decisions. Health and safety concerns justified regulation if the regulated interest was of someone other than the parties to any bargain that regulation governed. By contrast, morals regulation was permitted even if it paternalistically interfered with someone’s own choices. These exceptions provided the opening wedge for broader theories of regulation based on more secular notions of market failure. In the late 1930s President Roosevelt flooded the Supreme Court with nominees who were sympathetic to these new theories. The classical concern with health, safety and morals lost its distinctiveness.


regulation, substantive due process, health, safety, morals

Publication Title

The Opening of American Law: Neoclassical Legal Thought, 1870-1970