gal scholar Douglas Bradford expressed itrnin an article in the journal This World lastrnvear, “upon this rock [of the IncorporationrnDoctrine] rests the authority of thernfederal judiciary to oversee busing, quotas,rnschool district boundaries, abortion,rnMiranda warnings, probable cause forrnarrest, prison and asylum standards, libel,rnpornography, subversive speech, and thernseparation of church and state.” In thernabsence of the Incorporation Doctrine,rnthat is, there would in fact be virtually nornenduring liberalism in the United States,rnand the grotesque failure of the “ReaganrnRevolution” is nowhere more glaringlyrnexhibited than in the inability and perhapsrnthe unwillingness of its Court appointeesrnto challenge this doctrine. Indeed,rnthere now flourishes a school ofrnneoconservative jurisprudence that is actuallyrncommitted to endorsing and keepingrnthe Incorporation Doctrine in onernform or another.rnThe ostensible reason certain conservativesrnare drawn to the IncorporationrnDoctrine is that it seems to offer themrnan opportunity to encode in the Constitutionrnwhat they take to be fundamentalrnrights of property and economic enterprisernand the protection of a free-marketrneconomy. Their views are largely drawnrnfrom late 19th-century jurisprudence,rnwhen the 14th Amendment was conscriptedrnby the conservative jurists of thernGilded Age to buttress “substantive duernprocess.” Under this interpretation, thernAmendment’s prohibition of a state deprivingrn”any person of life, liberty, orrnproperty without due process of law” isrnextended to the substance of what legislaturesrndo, not merely to the proceduresrnby which the laws operate. As legal historianrnMclvin Urofsky explains the distinction,rn”Procedural due process . . .rnregulates the courts and constitutes thernrules of the game; substantive due processrnregulates the legislature and is therngame.” By claiming that the I4thrnAmendment dictates what legislaturesrnmay do, the concept of substantive duernprocess essentially brings state legislaturesrn(as well as city and county governments)rnunder the control of the federalrncourts.rnThe value of substantive due processrnas understood through an expansive viewrnof the 14th Amendment to defendersrnof free enterprise comes mainly from itsrnapplication to local and state licensingrnlaws. The leading Court rulings in thisrnheld remain the 1873 “SlaughterhousernCases,” in which the Court narrowly upheldrn(thereby rejecting substantive duernprocess claims) a Louisiana statute thatrnlimited the location of slaughterhousesrnto certain areas of New Orleans. Butchersrnoutside the area challenged the lawrnon the ground that it violated their rightrnto exercise their trade as guaranteed inrnthe Bth and 14th Amendments and thern1866 Civil Rights Act. Justice SamuelrnMiller, speaking for the five-vote majorityrnon the Court, rejected their argument,rnstating that to use the 14thrnAmendment to authorize federal protectionrnof individual rights within andrnagainst the states would “fetter and degradernthe State governments by subjectingrnthem to the control of Congress”rnand would “constitute this court a perpetualrncensor upon all legislation of thernStates.”rnMiller’s view prevailed, but not forrnlong. By the I890’s, the idea of usingrnsubstantive due process to resist efforts ofrnProgressivist reformers to regulate businessrnat the local level had proved toornuseful for the judicial defenders of laissez-rnfaire to resist, even at the expense ofrnsacrificing federalism. Up through thern1930’s, when conservative Justices used itrnto resist Wilsonian and Rooseveltian attemptsrnto regulate the economy, the substantiverndue process view prevailed, untilrnRoosevelt’s own political manipulationrnof the Court allowed it to be replaced, atrnleast for economic purposes.rnAlthough the legal reasoning by whichrnsubstantive due process is applied to economicrncases differs from that by whichrntlie Incorporation Doctrine was developed,rnthe effects are essentially the same.rnIn both, a branch of the federal go’ernmentrn—the Supreme Court—dictatesrnwhat state legislatures may and may notrndo, and in both, the 14th Amendment isrninvoked as a basis for this expansion ofrnfederal power and the correspondingrndiminution of state and local authority.rnToday the principal exponent of revivingrnsubstantive due process reasoningrnin economic liberty eases is ProfessorrnRichard Epstein of the University ofrnChicago, but while Professor Epstein isrninvolved largely in the theoretical elaborationrnof the argument, the main pioneerrnof this school on a practical level hasrnbeen Clint Bolick of the Landmark I ,egalrnFoundation and more recently of thernWashington-based Institute for Justice.rnMr. Bolick and his attorneys have mainlyrnsought to use substantive due processrnarguments to oppose local licensing lawsrnthat they claim violate citizens’ rights tornengage in private enterprise. Thus, theyrnhave supported litigation aimed at overturningrnWashington, D.C., licensing lawsrnbanning bootblacks from city sidewalksrnand a Houston, Texas, law that bannedrnjitneys because of their competition withrnlocal streetcar companies. In these andrnsimilar cases, Bolick argues that such lawsrnare also racially discriminatory, since theyrnusually have the effect of pushing outrnblack competitors in favor of white businessesrnand since they were often passedrnin the first place for precisely that purpose.rnThe specific results of Mr. Boliek’s effortsrn—overturning obsolete or irrationalrnlicensing laws that restrict competition—rnare no doubt commendable, but, likernthe original substantive due processrncases, their effects on conservative legalrnstrategy in the longer term are likely tornbe pernicious. Reliance on the IncorporationrnDoctrine and substantive due processrntheory by conservatives contradictsrnand weakens whatever efforts the rightrnmight make against the use of thesernsame principles by the left, and if the legalrnhistory of this century proves anything,rnit is that the left will be the ultimaternbeneficiary of any centralized legalrnsystem and the principles that support it.rnThere is no way decisions such as Roe v.rnWade or similar rulings on prayer inrnschools, burning the flag, obscenity, civilrnrights, or entire casebooks of other victoriesrnfor legal liberalism, can flourishrnwithout the kind of interpretation thatrnthe left has imposed on the 14thrnAmendment and that Professor Epstein,rnMr. Bolick and his colleagues, and theirrnadherents are zealous to perpetuate.rnLocal licensing laws, moreover, mayrnhave few economic merits, though inrnthe original Slaughterhouse Cases thernpurpose of the law was to protect publicrnhealth against the disease that accompaniesrnthe professional slaughter of cattle.rnThe fact is that states and local communitiesrnmay have any number ofrnperfectly valid and legitimate reasons forrnenacting legislation limiting local enterprises,rnand certainly the approval or disapprovalrnof nine men in Washington (orrnof political ideologues in universities andrnfoundations) should have nothing to dornwith how communities govern themselves.rnThe whole point of the U.S. Constitutionrnas it was originally written andrnadopted was to enable the people of onernof the wodd’s largest and most diverserncountries to govern themseK’es withoutrnlULY 1993/11rnrnrn