Substantive due process is a controversial doctrine due to its lack of a limiting principle that prevents courts from creating or extending rights beyond the text of the Constitution. This Comment suggests that the effects of substantive due process should be evaluated from a perspective of their likely effect on the federalist marketplace of state experimentation. From this perspective, the application of substantive due process should be limited to natural rights, which are the equivalent of natural monopolies in economic marketplaces. The remaining rights should be allowed to develop through state experimentation.
© 2013 J. Reuben Clark Law School
Substantive Due Process: The Power to Grant Monopolies in the Federalist Marketplace of State Experimentation,
2013 BYU L. Rev.
Available at: http://digitalcommons.law.byu.edu/lawreview/vol2013/iss2/5