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89.  For a discussion of the demise of "economic due

process," see Bernard H. Siegan, Economic Liberties and

the Constitution (Chicago: University of Chicago Press,

1980).

90.

Plessy v. Ferguson, 163 U.S. 537 (1896).

91.

Thomas, p. 66.

92.

Plessy at 556.

93.

Thomas, p. 68.

94.  That is not the law today, of course.  For a critique

of modern anti-discrimination law from a consideration of

first principles, see Roger Pilon, "Discrimination,

Affirmative Action, and Freedom: Sorting Out the Issues,"

American University Law Review 45 (1996): 775-90.

95.  Bork, pp. 83-84.  Bork's concern here is to criticize

the Court's effort, in Bolling v. Sharpe, 347 U.S. 497

(1954), to find equal protection in the Fifth Amendment's

Due Process Clause, which he takes to be "a clear rewrit-

ing of the Constitution."  Admittedly, the Court has gone

on to abuse what Bork calls its "invention," but those

abuses should be criticized on their own terms; they are

no warrant for ignoring the implications of "due process

of law."

96.  For a discussion of how even the Due Process Clause

is ultimately substantive, see Roger Pilon, "Legislative

Activism, Judicial Activism, and the Decline of Private

Sovereignty," in Economic Liberties and the Judiciary, ed.

James A. Dorn and Henry G. Manne (Fairfax, Va.: George

Mason University Press, 1987), pp. 183-203.

97.

Carolene Products at 144.

98.

See generally Siegan.

99.  See, for example, the remark of Rexford G. Tugwell,

one of the principal architects of the New Deal, reflect-

ing on those years some 30 years later: "To the extent

that these [New Deal policies] developed, they were tor-

tured interpretations of a document [i.e., the

Constitution] intended to prevent them."  "A Center

Report: Rewriting the Constitution," Center Magazine, March

1968, pp. 18, 20.  Cf. Gary Lawson, "The Rise and Rise of

the Administrative State," Harvard Law Review 107 (1994).

"The post-New Deal administrative state is unconstitu-

tional, and its validation by the legal system amounts to