An Originalist Argument for Substantive Due Process?

Originalists and textualists love to lampoon substantive due process as a contradiction in terms. The literal meaning of the clause seems to require the government to go through certain procedures before it takes your life, liberty, or property. How could the framers have intended this clause to protect certain substantive rights regardless of how much procedure the government gives?

The progressive response usually takes the form of: Some rights are so fundamental to what it means to be human that the majority should never be able to take them from individuals (or at least not unless the deprivation survives strict scrutiny analysis). But maybe there's an originalist response.

The case of Dred Scott v. Sanford reached the Supreme Court in 1857. Dred Scott, his wife, and his two children were slaves whose master, Dr. Emerson, held them north of the 36’-30” line (northern border of Missouri, north of which slavery was illegal under the Missouri Compromise). Emerson returned to Missouri and sold Dred Scott to Sanford.

Dred Scott sued Sanford in federal court to assert his and his family’s freedom. Sanford successfully argued that the court lacked subject-matter jurisdiction over the case because Dred Scott, like all blacks, was not a citizen of Missouri or the US. (The Constitution gives federal courts subject-matter jurisdiction over cases or controversies between "citizens" of different states.) Dred Scott appealed to the Supreme Court.

The Supreme Court said that because Dred Scott (or his ancestors) was imported to the U.S. as a slave, he could not be a "citizen" under the Constitution. The Court could have stopped there and dismissed the case, but it didn't. It also said that (a small provision of) the Missouri Compromise was unconstitutional because Congress could not deprive citizens (like Sanford) of his property (his slaves). Ostensibly, the legislative process provided by Congress before enacting the Missouri Compromise satisfied the Fifth Amendment's Due Process Clause. So the Court was saying that Congress could not deprive citizens of property at all. (This argument sounds a lot like Locke's Second Treatise of Government: people wouldn't enter a social contract in which they gave up life, liberty, or property.) On this reading, Dred Scott contains dicta endorsing the idea of substantive due process.

All this is the background for the ratification of the Fourteenth Amendment eleven years later. The framers of the Fourteenth Amendment chose language almost identical to the language of the Fifth Amendment. Compare

"No person shall be . . . deprived of life, liberty, or property, without
due process of law . . ."

with

"No State shall . . . deprive any person of life, liberty, or property,
without due process of law . . ."

So, if we adopt a maxim of statutory construction that says that similar language should have similar meanings, then it's arguable that the framers of the Fourteenth Amendment intended to ratify the idea of substantive due process present in Dred Scott.

The objection to this argument is that the first sentence of the Fourteenth Amendment ("All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.") overrules Dred Scott. The framers couldn't have embraced a decision at precisely the same time they were overruling it.

My response has to be that the first sentence of the Fourteenth Amendment overrules only a part of the Dred Scott case--the part that holds that blacks can never become citizens. The rest of the opinion stands.