Article:
L.A. Powe, Jr., Rehearsal for Substantive Due Process: The Municipal Bond Cases, 53 Texas L. Rev. 738 (1975).
 

Abstract:
The key constitutional development in the last third of the 19th century was the growth of substantive due process. This development occurred largely during the 1890’s, but given the importance of substantive due process in our constitutional history, historians have not surprisingly looked to the immediately preceding period for clues to its genesis. Fewer than ten cases decided between 1868 and 1890 touched upon substantive due process, and they have been analyzed in the extreme. Dicta in these cases—that some statutes might be so arbitrary as to run afoul of due process—indicated that on the right facts the Court would indeed embrace substantive due process in some form. But rather than to search the early cases for dicta in hopes of finding a neat progression to substantive due process or for clues about its intended usages, one can profitably look at the predominant economic cases on the Court’s docket during the period prior to the 1890’s for earlier manifestations of rather similar activism and attitudes.

The Court at each term for a quarter of a century averaged almost as many cases involving the validity of municipal bonds as the total number of useful due process cases decided prior to 1890. The standard constitutional history ignores them, apparently because in their diversity posture the decisions implicated no constitutional provisions. Yet despite this lack of doctrinal similarity, these diversity cases shared some common ground with the substantive due process cases, and occasionally the lines of cases borrowed from one another. The Court’s activity in the bond area sheds light on later Court uses of substantive due process.