Anytime someone tries to point out the evils of substantive due process, I’m reminded of a story our Con Law professor had told us in the second year of law school.
The then-Bishop of Rochestor was a cruel and proud man, who had recently passed a decree that anyone caught stealing in his lands would have their right hand chopped off. While this is the realm of speculation, we shall presume that any amputation was, by a clarificatory decree, restricted to the elbow.
One day, our good Bishop’s cook was caught stealing a loaf of bread from the castle’s pantry. The Bishop, angered by the violation of his authority in his own dominion, decided that the amputation of a single limb was too good a punishment for the unhappy cook.
Eventually, and after some thought, our good Bishop decreed that his cook would be boiled alive in oil. Why boiled, and not fried remains a mystery - perhaps this particular cook didn’t fry too well.
The Bishop’s decree in re: the matter of his cook, our professor informed an uncharacteristically sombre class, was a valid command of the sovereign that met all the requirements of procedural due process, namely, that a law be validly passed by an authority competent to pass it.
However, and as our professor said with great effect, as may be evident, death by boiling oil for a crime others only lose their arm for isn’t exactly fair, and hence, the decree violated substantive due process. i.e., that a validly passed law also be just.
Justice is an invisible concept - the next time somebody whines about judge-made law to you, tell them the story of the Bishop of Rochestor’s cook and ask them if they would rather their loved ones boiled alive in oil for petty thievery.