Dred Scott and "Substantive Due Process":. Bernstein, D. July, 2007.
Dred Scott and "Substantive Due Process": [link]Paper  abstract   bibtex   
Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of “substantive due process” to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney’s opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process: But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it [...]
@misc{bernstein_dred_2007,
	title = {Dred {Scott} and "{Substantive} {Due} {Process}":},
	shorttitle = {Dred {Scott} and "{Substantive} {Due} {Process}"},
	url = {http://volokh.com/2007/07/19/dred-scott-and-substantive-due-process-2/},
	abstract = {Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of “substantive due process” to Scott v. Sandford.  This is disingenuous (or perhaps ignorant) on two levels.  First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights.  Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states.  Taney’s opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion.  Here, in context, is all Taney had to say about due process: 

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it  [...]},
	urldate = {2016-02-18},
	journal = {The Volokh Conspiracy},
	author = {Bernstein, David},
	month = jul,
	year = {2007},
	keywords = {Book project, DRI early research 2007-2021, DRI zotero, Lawrence\_Parents Involved chapter, book revision 2025—early citations, dissertation, dred scott, race and education article, race and law, substantive due process, volokh},
}
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