Introduction

Scattered throughout the Dobbs majority opinion,[1] the Supreme Court’s most recent evaluation of substantive due process case, is a 1905 decision, Lochner v. New York,[2] which Justice Alito described as “unprincipled,” “freewheeling judicial policymaking.”[3] In Lochner, the Court declared unconstitutional a state statute that placed a cap on the weekly working hours of bakers. The majority rooted its reasoning under an implicit right to freely negotiate contracts protected by the Due Process Clause, and invalidated the law since it did not effectively serve a legitimate purpose.[4] Perhaps one of the most demonized decisions in the Court’s history, Lochner, in many judges’ view, exemplifies a type of legislative policymaking on the bench.[5] But is the infamous Lochner decision really “freewheeling judicial policymaking?” Or did Lochner follow history and tradition? This note will revisit the economic substantive due process right that the Lochner Court constitutionalized but that was later overturned in West Coast Hotel Co. v. Parrish.[6]Part I details the evolution of the Court’s substantive due process jurisprudence and provides a review of the Court’s current precedent regarding rights of an economic nature. Part II reconsiders economic substantive due process rights under the framework of Glucksberg[7] analysis that the Court derived decades after granting (albeit minimal) economic rights. Part III explores the prospective difficulties that the Court will face if it does decide to elevate protection for economic liberties, and argues that states, rather than federal courts, offer a more effective avenue to protect economic liberty.

I. The Evolution of the Substantive Due Process Jurisprudence

The Due Process Clause of the Fourteenth Amendment prevents states from “depriv[ing] any person of life, liberty, or property, without due process of law.”[8] The right to due process includes not only the right to a fair legal process, also known as “procedural due process,”[9] but also protection for a range of “substantive due process rights.”[10] Substantive due process goes beyond the mere procedure of the law and requires government actors to provide certain procedural protections to the content of the law itself, thereby limiting the government’s power to restrict certain rights. However, not all substantive-due-process rights are entitled to the same degree of protection. The modern conception of substantive due process jurisprudence creates a tier system of protection of rights. Under this tier system, some rights seen as fundamental receive greater protection, and only strict scrutiny justifies the government’s burden on these rights. This conception originated from a perhaps the most famous footnote in American law:

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”[11]

Accordingly, the Constitution holds two rights, (1) enumerated and (2) unenumerated. Enumerated rights enjoy heightened protections, while unenumerated rights have a burden of proof that falls upon claimants. Crucially, the Court does not deny protection to unenumerated rights altogether. As to laws that burden rights not explicitly mentioned in the Constitution, the burden of proof of the irrationality of the law shifts to the claimants. Courts only invalidate laws that do not infringe upon fundamental rights when the plaintiffs can make a showing that the law in question “is without support in reason.” Such proof can include facts forming the basis of the law “ha[d] ceased to exist.”[12]

Since this famous footnote established means-end scrutiny in constitutional law, the Supreme Court has addressed multiple cases involving substantive due process rights related to economic activities. Yet, economic rights have receivedclose to no protection under the Court’s current precedents due to its considerable deference given to legislative bodies. In the case Williamson v. Lee Optical of Oklahoma, the Court upheld an Oklahoma law that forbids unlicensed opticians to prescribe lenses for eyeglasses under rational basis.[13] The Court maintained that, even if evidence in the record contradicts or weakens the legislature’s reasoning behind the law, courts should still show deference to legislative judgments as long as the law is rationally related to a legitimate government interest.[14] As Justice Stevens later opined, “[t]he Constitution does not prohibit legislatures from enacting stupid laws.”[15] Applying such a deferential standard, courts have routinely upheld economic regulations, even when claimants present formidable evidence implicating the unworkability of the law. “A law will survive constitutional scrutiny under rational-basis review for a due process or equal protection challenge so long as the existence of a rational connection to its aim ‘is at least debatable.’”[16] Thus, in many occurrences, lower courts have upheld arbitrary laws that restrict certain practices or require certain conditions for businesses to operate.[17] In this regard, this rational basis standard, as many judges reckon, is “more or less, a judicial rubber stamp” to legislative economic policies.[18]

II. Economic Liberty Under the Glucksberg Test

However, since 1965, the Supreme Court has widened the breadth of unenumerated rights that can claim the protection of the Constitution, particularly non-economic rights, even if they are not explicitly mentioned in the Bill of Rights. In Griswold v. Connecticut, Justice Douglas stated that certain unenumerated rights are sheltered under the “penumbras” of the Constitution’s express guarantees, specifically the right to privacy.[19] These rights are as “fundamental” as the ones anchored in the Bill of Rights.[20] The Court further clarified when a right is fundamental and merits heightened protection in Glucksberg. The Glucksberg Analysis developed a two-pronged approach for an unenumerated right to be established. Specifically, its analysis calls for a right to, one, be deeply rooted in the Nation’s history and tradition, and two, be carefully described, prior to being considered fundamental. “First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition,... Second, we have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.”[21] The Court reaffirmed this approach this year, when revoking the recognition of abortion as a fundamental right.[22]

Several scholarly works have argued for giving economic liberty interests greater protection than the minimal-threshold rational basis review,[23] and found longstanding history of recognizing the right to pursue a lawful occupation as justification.[24] The following section will reassess this right under the Glucksberg framework to determine if it truly warrants heightened protection.

1. Defining Substantive Economic Rights

The Glucksberg analysis calls for a right to be carefully defined prior to being considered fundamental. In Glucksberg, the Court narrowed petitioners’ asserted rights from wide-ranging to a highly precise “right to commit suicide which itself includes a right to assistance in doing so” before even considering its validity.[25] In subsequent cases, the Court interprets “careful” to mean narrow or specific.[26] However, in Obergefell, the Court does not define the right in the narrowest way—the right to same-sex marriage. It instead rests its decision upon the general, broader right to marry. In Obergefell, the Court said that, even though it may be appropriate to construe a liberty interest in the most circumscribed manner, Glucksberg’s first prong is incompatible with the Court’s approach when discussing fundamental rights involving marriage and intimacy.[27]

Thus, the primary prong of the Glucksberg analysis crucially informs the second, since the way a right is described necessarily implicates how much historical evidence will be available to vindicate it.[28] Had the Obergefell Court accepted another assertion of the right, the right to same-sex marriage, they would not have ruled in favor of same-sex couples.[29] Yet, scholars generally define substantive economic rights rather broadly: for instance, proposed rights include the right to contract, ply a trade, earn a living, and engage in common lawful occupations against arbitrary or protectionist government regulations. This mirrors past dicta of the Court recognizing the critical importance of economic liberties: “It is undoubtedly the right of every citizen of the United States [despite not appearing in the Constitution] to follow any lawful calling, business, or profession he may choose.”[30] “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.”[31] However, since all of this dicta precedes the Court’s establishment of the Glucksberg test, one could assume the Court would re-scrutinize these asserted economic liberty interests to narrow them down to a right to certain forms of occupation and against certain kinds of oppressive regulatory regimes. The more specific and descriptive the Court defines the right, the less historical evidence one may find to justify the fundamental nature of such  right.

2. Historical Foundation of Substantive Economic Rights

Some commentators have argued, with abundant historical evidence, that economic liberty is deeply rooted in this nation’s history and tradition. English and American history both support such rights, whether it be the right to earn a living, participate in trade, or engage in a common occupation.[32] Dating back to Thirteenth Century England, the Magna Carta explicitly guarantees the right to “buy and sell free from all maletotes by the ancient and rightful customs.”[33] Over the next few centuries, English courts fiercely protected the right to trade or pursue an occupation against arbitrary government prohibitions.[34] One judge who penned many of these decisions, Sir Edward Coke, opined in his book, “[g]enerally all monopolies are against this great charter, because they are against the liberty and freedome of the subject, and against the law of the land.”[35] Eminent common-law commentator William Blackstone also stated that “[a]t common law, every man might use what trade he pleased.”[36]

The English common law’s defense of the right to a free market without arbitrary government restraint migrated across the pond. American founding fathers such as James Madison similarly declared that government restraints on obtaining property is a violation of liberty. “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”[37] In addition, the framers of various states adopted anti-monopoly clauses into their constitutions. The Maryland Constitution of 1776, for example, requires “[t]hat monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.”[38] The North Carolina constitution contained the exact same clause.[39] Other state constitutions (Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Virginia) had privileges and immunities clauses that could also be read as banning monopolistic practices.[40]

Scholars have also argued that history, both prior to and after the ratification of the Fourteenth Amendment, typically finds a corollary in favor of recognizing economic liberties as fundamental. In his debate with Stephen Douglas, Abraham Lincoln argued “in the right to eat the bread, without leave of anybody else, which his own hand earns, he [the slave] is my equal and the equal of Judge Douglas, and the equal of every living man.”[41] After the civil war, Congress was also especially concerned about protecting former slaves’ economic rights, especially their right to earn a living. Courts were further solicitous to challenges against economic regulations upon trade or common regulations.[42] Most notable is Justice Bushrod Washington’s opinion in Corfield v. Coryell, which proclaims the right to trade to be fundamental: “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade … [is] clearly embraced by the general description of privileges deemed to be fundamental.”[43] The Massachusetts Supreme Judicial Court has also stated that “[s]tatutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly.”[44]

However, one can also argue that many other states specifically chose not to adopt anti-monopoly or other similar clauses that recognize a fundamental economic liberty interest in their constitutions. The lack of evidence in many states supporting such a right makes it difficult to claim there exists an objective indicia. And in many of these states or decisions that do recognize the economic liberty interest, such as Corfield, they grounded it under their privileges-or-immunities clauses.[45] Yet, the United States Supreme Court has explicitly foreclosed the recognition of the right to earn an honest living under the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Casesduring the Reconstruction Era.[46] Given that during the Reconstruction Era, the Court did not recognize the right to earn a living as fundamental, and therefore, reconstruction history arguably does not support its recognition as such.

III. Prospects of Resurrecting Economic Substantive Liberty

Provided that there is some evidence supporting the longstanding right to economic liberties without arbitrary or undue government intrusions, economic liberties may be considered as fundamental under the rubric of Glucksberg. However, this conclusion is contingent on one’s interpretation of historical evidence. Judge James Ho from the Fifth Circuit, an advocate seeking to restore the recognition of economic liberties, “if anything, the right to pursue callings and make contracts have better historical grounding than more recent claims of right that have found judicial favor.”[47] In his view, if the Court truly means what it said in Dobbs (to consistently apply the Glucksberg test regardless of the outcome of the case) then it should reconsider the minimum rational basis review when evaluating these longstanding economic substantive rights.[48] But when assessing whether historical evidence supports the recognition of rights, it is important to consider the quality of the evidence rather than just its quantity. Specifically, courts should examine whether history unambiguously recognizes this right as fundamental. If judges recognize or derecognize a right based on conflicting or contested historical evidence, they could appear to selectively choose historical evidence in support of their arguments. This may undermine the impartiality and objectivity of their legal interpretation, which is an essential aspect of their role. Since it is challenging to reconcile historical evidence in support of either side in this matter, it is unlikely that the Supreme Court will consider this issue and elevate the standard of review for economic rights.

Courts not only face challenges in assessing historical evidence but also lack expertise in evaluating the basis for economic policies, should they choose to elevate the standard of review and become more involved in evaluating the competing interests and justifications of an economic policy. To recognize economic liberties, courts would need to review economic policies more closely. However, courts generally refrain from doing so, recognizing that balancing economic interests is a delicate task. If heightened protections are granted to economic liberties, courts would engage more in “courtroom fact-finding,” and many judges expressed concern about their ability to make informed decisions about complex economic policies.[49] Furthermore, having judges oversee the workability of every economic policy would open the floodgates to endless litigation whenever there is evidence that a policy did not function as intended.

Moreover, the Supreme Court has often distinguished between its approach to common-law economic rights and other civil liberties, citing its longstanding tradition in deferring to the legislative branch to enact economic policies since the New Deal Era.[50] This deference to economic policies is attributed to the government’s vast power to regulate commerce. The Constitution expressly gives the federal government the right to regulate interstate commerce.[51] States also have broad authority to regulate intrastate commerce under their police power. Thus, even if a constitutional right pertains to commercial or economic activities, the Court affords less protection to such rights.[52] Consequently, the Court not only recognizes economic liberties with difficulty but also dilutes fundamental rights to accommodate economic regulations, proving once again how external economic rights and regulations are to the norm in America.

Given the challenges of evaluating evidence in the area of economic substantive due process, the potential disruptions to commerce that may result, and the Court’s longstanding deference to economic policies, it is unlikely that the Supreme Court will revisit its jurisprudence on economic rights. In fact, five months after its decision in the Dobbscase reaffirming its commitment to historical analysis in substantive due process cases, the Court declined to hear a case that asked it to reconsider this specific issue.[53]

But the Supreme Court’s decision not to recognize a particular right under the federal constitution should not be the end of the road. The Constitution provides a minimum level of protection, but states are free to enhance protections for their citizens and businesses under their own state laws and constitutions.[54] And that is what the Founders did, as evidenced by the anti-monopoly clauses added to some state constitutions mentioned earlier. The challenges of evaluating historical evidence would be less significant in state courts, which have narrower jurisdiction and less extensive historical evidence to consider than the Supreme Court. In fact, after the Lochner era ended, numerous state supreme courts safeguarded economic liberties by employing economic substantive due process in accordance with state constitutional law.[55] State legislatures, as bodies that are better equipped to make economic decisions, can also play a role in balancing the interests of businesses and citizens in passing laws, regulations, or amending their constitutions to enhance economic liberties. Accordingly, rather than relying on the federal courts, claimants should look to state governments, including their legislatures, executives, and courts, to assert their economic liberties. States are better equipped to make these decisions, and shifting the focus from federal courts to state governments can help ensure that the economic rights of citizens are better protected.

Citations

[1] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

[2] 198 U.S. 45 (1905).

[3] Dobbs, 142 S. Ct. at 2248.

[4] Lochner, 198 U.S. at 57–58.

[5] See, e.g., Obergefell v. Hodges, 576 U.S. 644, 694 (2015) (Roberts, C.J., dissenting) (chastising the majority's “unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner”).

[6] 300 U.S. 379 (1937).

[7] Washington v. Glucksberg, 521 U.S. 702 (1997).

[8] U.S. Const. amend. XIV, § 1.

[9] Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

[10] Glucksberg, 521 U.S. at 719 (1997) “The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests” (internal citations omitted).

[11] United States v. Carolene Products Co., 304 U.S. 144, 152, n.4 (1938).

[12] Id. at 153–54.

[13] 348 U.S. 483, 491 (1955).

[14] Id.

[15] N.Y. State Bd. of Elections v. López Torres, 552 U.S. 196, 209 (Stevens, J., concurring).

[16] Tiwari v. Friedlander, 26 F.4th 355, 369 (6th Cir. 2022), quoting Western & Southern Life Insurance Co. v. State Board of Equalization of California, 451 U.S. 648, 674 (1981).

[17] See, e.g., Tawari, supra note 16, at 364 (upholding Kentucky’s certificate-of-need law that requires any prospective healthcare providers to demonstrate a public need to open their businesses, despite “considerable evidence showing that, in practice, certificate-of-need laws often undermine the very goals they purport to serve”); Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 286 (2d Cir. 2015) (upholding a Connecticut prohibition on non-dentists pointing LED lights into their customers’ mouths); Heffner v. Murphy, 745 F.3d 56, 85–86 (3rd Cir. 2014) (upholding Pennsylvania’s law that bans serving food or alcoholic beverages, but not sodas, at funeral homes, even if modern sanitation made original concerns obsolete).

[18] United States v. Sahhar, 917 F.2d 1197, 1201 n.5 (9th Cir. 1990).

[19] 381 U.S. 479, 484 (1965).

[20] The Griswold decision did not explicitly rest the right of privacy on the Due Process Clause. However, the progeny of Griswold clarified that the protection of a privacy right is grounded in the Due Process Clause. Lawrence v. Texas, 539 U.S. 558, 565 (2003).

[21] Glucksberg, 521 U.S. at 720-21 (internal citation omitted).

[22] Dobbs, 142 S. Ct. at 2242, 2246 (2022).

[23] Evan Bernick, Towards A Consistent Economic Liberty Jurisprudence, 23 Geo. Mason L. Rev. 479, 480 (2016) (arguing that the rational basis standard evaluating economic liberty should be replaced with a more rigorous form of review); Marc P. Florman, The Harmless Pursuit of Happiness: Why “Rational Basis with Bite” Review Makes Sense for Challenges to Occupational Licenses, 58 Loy. L. Rev. 721, 744 (2012) (arguing in favor of the lower courts’ adoption of the “rational basis with bite review”).

[24] See, e.g., Timothy Sandefur, The Right to Earn a Living, 6 Chap. L. Rev. 207, 214–15 (2003)

[25] Glucksberg, 521 U.S. at 723.

[26] See, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (“the right at issue is the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution”).

[27] Obergefell v. Hodges, 576 U.S. 644, 671 (2015), referencing Loving v. Virginia, 388 U.S. 1 (1967). Some may argue that Obergefell does not abrogate Glucksberg’s first prong in the context of family and intimacy. They point to the Court’s reference of the “synergy” between the Due Process and Equal Protection Clauses, and argue that the Court applied the Equal Protection Clause to extend the fundamental right to marry to a protected class, homosexuals. However, even under this logic, the “existing” fundamental right is not most narrowly defined as the Court did in other contexts, such as physician-assisted suicide.

[28] As one commentator observes, “a court may rule however it wishes simply by choosing how to describe the right.” Randy E. Barnett, Scrutiny Land, 106 Mich. L. Rev. 1479, 1490 (2008).

[29] Obergefell, 576 U.S. at 688–92 (Roberts, C.J., dissenting) (referencing abundant historical evidence that did not recognize same-sex marriage until recent decades).

[30] Dent v. State of W.Va., 129 U.S. 114, 121 (1889).

[31] Truax v. Raich, 239 U.S. 33, 41 (1915).

[32] These economic rights, however, are not positive rights (i.e., they do not guarantee one a successful livelihood or trade.) Some scholars have argued in favor of a positive right to welfare. See, e.g., Charles L. Black, Jr., Further Reflections on the Constitutional Justice of Livelihood, 86 COLUM. L. REV. 1103 (1986). For the purposes of this note, I define the substantive economic right as a negative right. This economic right guarantees people not property but liberty – the liberty to be free from government intervention in economic contexts.

[33] J.C. Holt, Magna Carta, 461-63 (2d ed. 1992), cited within Timothy Sandefur, The Right To Earn A Living, 6 Chap. L. Rev. 207, 209 (2003).

[34] Id. at 209-17. See also, e.g., Darcy v. Allen, 77 Eng. Rep. 1260 (K.B. 1603), cited within Thomas B. Nachbar, Monopoly, Mercantilism, and The Politics of Regulation, 91 Va. L. Rev. 1313 (holding that royal monopoly grants on selling wine in London violated common law); The Case of the Tailors, 77 Eng. Rep. 1218, 1219 (“the common law abhors all monopolies, which prohibit any from working in any lawful trade”) (K.B. 1614).

[35] 2 Edward Coke, Institutes of the Laws of England (1809), cited within Sandefur, supra, at 216.

[36] 1 William Blackstone Commentaries 135–39 (1765).

[37] The Papers of James Madison, edited by William T. Hutchinson and William M. E. Rachel (1972).

[38] MD. CONST. OF 1776, art. XXXIX.

[39] N.C. CONST. OF 1776, art. XXIII.

[40] Steven G. Calabresi & Larissa C. Leibowitz, Monopolies and the Constitution: A History of Crony Capitalism, 36 Harv. J.L. & Pub. Pol’y 983, 1074–75 (2012).

[41] Davis, Rodney O. & Douglas L. Wilson, The Lincoln-Douglas Debates, University of Illinois Press, 21 (2014).

[42] Sandefur, supra note 33, at 224–26.

[43] Corfield v. Corfield, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823).

[44] Sewall v. Jones, 26 Mass. 412, 421 (Mass. 1830).

[45] Corfield, 6 F. Cas. at 552.

[46] 83 U.S. 36 (1872).

[47] Golden Glow Tanning Salon, Inc. v. City of Columbus, Mississippi, 52 F.4th 974, 982 (5th Cir. 2022).

[48] Id.

[49] F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315 (1993). A similar argument, however, can also be made against the Court’s emphasis on historical evidence due to their lack of expertise to evaluate it. Justice Breyer, for instance, has criticized the Court’s over-reliance on history as a “law office history” approach, wherein “evidence is selectively gathered and interpreted to produce a preordained conclusion.” New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111, 2177 (2022) (Breyer, J., dissenting), quoting Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009). Lower court judges have also expressed concerns about the administrability of the historical inquiry mandated by the Supreme Court. Judge Bybee stated, even being as faithful as possible to the historical inquiry, she was writing “a legal opinion, not a dissertation, so [the court is] likely to fall short in some way.” Young v. Hawaii, 992 F.3d 765, 785 (9th Cir. 2021) (en banc).

[50] See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (holding that setting a minimum wage falls under the authority of the legislative branch and that implementing it does not violate due process guarantees); United States v. Darby, 312 U.S. 100, 115 (1941) (recognizing that “regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause”); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (“[The commerce] power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it”).

[51] U.S. Const., Art. I, § 8, cl. 3.

[52] See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (implicating freedom to exercise religion when economic activity is involved: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity”); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 562 (1980) (implicating the right to free speech: “Our decisions have recognized the commonsense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech”).

[53] Tiwari, 26 F.4th 355 (6th Cir. 2022), cert. denied, 143 S. Ct. 444 (2022).

[54] See generally, Jeffrey S. Suttons, 51 Imperfect Solutions: States and the Making of American Constitutional Law,  Oxford University Press (2018).

[55] Anthony B. Sanders, The New Judicial Federalism Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline, 55 Am. U. L. Rev. 457, 511–12 (2005).