Substantive Due Process

14,000,000 Leading Edge Experts on the ideXlab platform

Scan Science and Technology

Contact Leading Edge Experts & Companies

Scan Science and Technology

Contact Leading Edge Experts & Companies

The Experts below are selected from a list of 7152 Experts worldwide ranked by ideXlab platform

Louise Weinberg - One of the best experts on this subject based on the ideXlab platform.

  • An almost archeological dig: Finding a surprisingly rich early understanding of Substantive Due Process
    Constitutional commentary, 2010
    Co-Authors: Louise Weinberg
    Abstract:

    There exists a hitherto unnoticed early disquisition on Substantive Due Process, setting out in 1840 a theory of Substantive Due Process far more powerful than the bare-bones concept Chief Justice Taney would deploy seventeen years later in Dred Scott. This remarkable text has languished in obscurity until now because it is layered over and threaded through with matters extraneous to it. It exists buried within the report of an oral argument about a different question, in a case, Holmes v. Jennison, about a wholly unrelated problem. The ancient relic has now been unearthed, in an almost archeological dig, by separating its fragments from the layered deposit in which it is submerged, as if lifting the clay from a potsherd. With a single exception, a 1993 paper on the Ninth Amendment, I have found no mention of this old argument of counsel in books or articles or cases. There appears to be no quotation or excerpt from it. As far as the Tarlton Law Library, Westlaw, or Google can discover—apart from the exception noted—the argument has no existence beyond the official reports of the case in which it appeared. And in the 1993 paper in which this argument of counsel is mentioned, there is no

  • An Almost Archeological Dig: Finding a Surprisingly Rich Early Understanding of Substantive Due Process
    Social Science Research Network, 2010
    Co-Authors: Louise Weinberg
    Abstract:

    An 1840 argument of counsel in the Supreme Court is shown to contain a fully developed theory of Substantive Due Process, remarkable for its time, going well beyond the mere traditional bare protection against arbitrary law. The passage has not been noted previously because it appears in a case about a different issue, in a passage irrelevant both to the issue the case presented and to the theory of Substantive Due Process that nevertheless informs it. The material on Substantive Due Process lies sufficiently close to the surface of counsel's argument that exposing it more fully to view required only deleting the less relevant portions of the text. Both the edited and unedited texts are presented. However, it is argued that Substantive Due Process, in that time, might have been a threat to liberty rather than a fount of rights.

Joseph F Kadlec - One of the best experts on this subject based on the ideXlab platform.

  • Employing the Ninth Amendment to Supplement Substantive Due Process: Recognizing the History of the Ninth Amendment and the Existense of Nonfundamental Unenumerated Rights
    Boston College Law Review, 2007
    Co-Authors: Joseph F Kadlec
    Abstract:

    Asserted liberty rights not enumerated in the U.S. Constitution are generally considered under the Substantive Due Process doctrine. Courts look only at narrowly defined interests and their history and traditions, and recognize only fundamental rights. This approach, however, fails to acknowledge the existence of nonfundamental rights that deserve recognition and a level of protection from improper legislation. As a supplement to its incomplete Substantive clue Process jurisprudence, the Supreme Court should examine the Ninth Amendment's history and traditions. Looking to this history and tradition will provide better guideposts for what types of rights should be protected. Employing the Ninth Amendment_ in this way will also help alleviate three primary reasons for the Amendment's disuse: the Ninth Amendment was not meant to apply against states, judges have no power to protect unenumerated rights, and the Ninth Amendment was only relevant under the now-disfavored penumbras and emanations test.

  • Employing the Ninth Amendment to Supplement Substantive Due Process: Arguing for Explicit Recognition of Both Fundamental and Non-Fundamental Unenumerated Rights
    Social Science Research Network, 2006
    Co-Authors: Joseph F Kadlec
    Abstract:

    James Madison drafted the Ninth Amendment to ensure that unenumerated rights were protected and so, its history should provide the guideposts for unenumerated rights analysis. Courts today instead use Substantive Due Process, but its use is incomplete because it focuses solely on fundamental unenumerated rights. This provides an all-or-nothing approach toward rights and furthers the current trepidation about expanding protection of rights. The ability of courts to recognize non-fundamental rights would limit the harm of this approach. First, courts still should narrowly define the asserted liberty interest, but should look to both the legal tradition and history about that right and the traditions and history of unenumerated rights generally, through the Ninth Amendment's ratification history. If the court determines that the asserted right is fundamental or not a right at all, it should proceed under the current test. If, however, the court determines that the asserted interest is a non-fundamental right, it should require the government to show that it has a rational basis for infringing that right. After establishing a Ninth Amendment construction, there still appear to be three main reasons why the Ninth Amendment has been avoided: it originally applied only against the federal government, judges may not have the power to enforce unenumerated rights, and the Ninth Amendment seems tied to the emanations test which the majority in Griswold v. Connecticut used, but which has now been surpassed by Substantive Due Process. These concerns can be alleviated and, accordingly, the inherent problems of employing the Ninth Amendment can subside. The history and purposes of the Bill of Rights, the reasons for specific enumerations, and the Ninth Amendment should be the guideposts that judges look to in the unenumerated rights test. Altering the current unenumerated rights test would ensure that there remains such a test generally and would reinforce all of the rights retained by the people, fundamental and non-fundamental.

Howard J. Vogel - One of the best experts on this subject based on the ideXlab platform.

  • The "Ordered Liberty" of Substantive Due Process and the Future of Constitutional Law as a Rhetorical Art: Variations on a Theme from Justice Cardozo in the United States Supreme Court
    Albany law review, 2007
    Co-Authors: Howard J. Vogel
    Abstract:

    I. INTRODUCTION Few judges are as revered in American legal history as Benjamin Nathan Cardozo (1) (1870-1938). And few have had as influential an impact on the growth of American law as Justice Cardozo. (2) Both on the bench and in the lecture hall, he crafted an enduring legacy as a compelling practitioner of the creative possibilities present within the common law tradition. His long tenure on the New York Court of Appeals (1914-1932), leading it as Chief Judge for five years (1928-1932), (3) brought fame to the court. (4) His creative use of the common law in several famous opinions (5) as well as his Storrs Lectures on the role of creativity in the judicial Process delivered at Yale in 1921 (6) made him the most influential common law jurist of the first third of the twentieth century. (7) In 1932, after his distinguished service in New York State, Judge Cardozo was tapped to become an Associate Justice of the United States Supreme Court. (8) During his brief six years on the Court (1932-1938), Justice Cardozo left a notable legacy in constitutional law that continues to influence the most recent opinions of the Court. That legacy mostly originates in the following oft-quoted phrases from Justice Cardozo's 1937 opinion for the Court in Palko v. Connecticut: "[The Due Process Clause of the Fourteenth Amendment protects those rights which are] of the very essence of a scheme of ordered liberty. To abolish them is ... to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (9) These phrases often appear in the opinions of the Court today, seventy years after Justice Cardozo first wrote them. (10) They are part of the long history of the constitutional doctrine of fundamental rights that stretches back to the earliest days of constitutional history in the eighteenth century. (11) Today they are deeply woven in the fabric of contemporary Substantive Due Process doctrine, (12) and also serve as the touchstone of the fundamental rights strand of the equal protection doctrine. (13) In contemporary Substantive Due Process doctrine, Justice Cardozo's Palko phrases have, as we shall see, played a prominent role in cases involving some of the most controversial cases to come before the Court since 1965, and continue to shape constitutional argument about Due Process at the dawn of the twenty-first century. The story of these recent controversial cases is a story of variations on Justice Cardozo's memorable theme in Palko that continues to reverberate today through the opinions of different justices who hold quite different views on the content and application of Justice Cardozo's theme as an elaboration of the Substantive dimensions of the Due Process Clauses of the Fifth and Fourteenth Amendments. A close look at this story can shed new light on the nature and meaning of the controversy that surrounds the Substantive Due Process doctrine today; at the same time, it illuminates the nature of legal reasoning in a constitutional context and the continuing controversy surrounding the Court's role in interpreting the Constitution. Based on a critical examination of the Substantive Due Process cases in which Justice Cardozo's theme appears, I shall argue the following: Constitutional argument is a rhetorical art, marked by a special form of practical reasoning that involves the task of persuasion to support a particular choice of action in the interpretation and application of the Constitution. While analogical reasoning is employed in such opinions for the purpose of drawing on precedent in the classic case-by-case reasoning of the Anglo-American legal tradition, contrary to the primacy given to such reasoning from precedent, it is practical reasoning to support a particular choice of action, among several choices available, and NOT analogical reasoning that best explains the activity of the justices who decide constitutional cases and the lawyers who appear before the Court in constitutional cases. …

  • The 'Ordered Liberty' of Substantive Due Process and the Future of Constitutional Law as a Rhetorical Art: Variations on a Theme from Justice Cardozo in the United States Supreme Court
    Social Science Research Network, 2007
    Co-Authors: Howard J. Vogel
    Abstract:

    This article offers a critical examination of controversial Substantive Due Process cases decided in the last half of the 29th Century in which appear references to Justice Cardozo’s famous notions on the nature and content of Substantive Due Process set out in Palko v. Connecticut (1937). The author argues the following: Constitutional argument is a rhetorical art, marked by a special form of practical reasoning that involves the task of persuasion to support a particular choice of action in the interpretation and application of the Constitution. While analogical reasoning is employed in such opinions for the purpose of drawing on precedent in the classic case-by-case reasoning of the Anglo-American legal tradition, ultimately such reasoning is an example of public rhetoric that involves choice. This argument calls people to reframe, rather than abandon, which it means to say that the rule of law is independent and objective as a central tenet of the Anglo-American legal tradition.

Daniel John Crooks - One of the best experts on this subject based on the ideXlab platform.

  • Toward 'Liberty': How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time
    Social Science Research Network, 2014
    Co-Authors: Daniel John Crooks
    Abstract:

    It is this author’s contention, buttressed in part by the Windsor Court’s Lawrence-like discussion of “liberty” and in part by Justice Kennedy’s own concept of liberty, that Windsor is neither an equal protection nor a Substantive Due Process case, but is instead a “liberty” case belonging to a category of cases where the Court has intertwined both theories to create what Professor Tribe refers to as a “legal double helix.” This hybrid theory is not new. The theory focuses on “liberty” within the context of who, as between the state or individual, will control a personal relationship and marks the judiciary’s shift in focus “from group-based civil rights to universal human rights.” Even the Court itself, on more than a few occasions, has declined to abide by the traditional distinctions “between the equality claims made under the equal protection guarantees and the liberty claims made under the Due Process or other guarantees.” In Windsor, like in Lawrence, the Court once again spoke of “liberty” and cited precedents from both its equal protection and Substantive Due Process jurisprudence. This Article has two objectives: first, to demonstrate that Windsor is best understood as a Lawrence-brand “liberty” case distinct from the Court’s traditional equal protection and traditional Substantive Due Process precedents; second, to argue that the focus on liberty in Lawrence and Windsor leaves little doubt as to how the current Court would decide the ultimate question of whether state laws proscribing same-sex marriage violate the Constitution. To accomplish these twin objectives, this Article is organized into four parts.Part II begins by addressing the theory of Substantive Due Process and continues by focusing on Justice Kennedy’s concept of liberty. Within this section, Part II.A provides an abbreviated history of the Court’s Substantive Due Process jurisprudence in an effort to elucidate how the theory of Substantive Due Process developed as a logical result of the constitutionally enshrined natural law concept of liberty, which concerns itself with demarcating the boundaries between an individual’s sphere of autonomy and the government’s police powers. Part II.B explores Justice Kennedy’s view of liberty and argues that his natural law-based, Lockean conception of liberty explains his liberty-rooted opinions in Casey, Lawrence, and Windsor. Part III explains how Justice Kennedy’s understanding of liberty influenced the Lawrence Court’s opinion and why its focus on liberty marks the continuance of a distinct line of jurisprudence that began in Casey and explains the Windsor Court’s reliance on liberty.The second half of the Article focuses on Windsor and the implications of the Court’s reliance on liberty for a case involving the constitutionality of states’ same-sex marriage bans. Generally, Part IV addresses the background leading up to and culminating in Windsor. Part IV.A provides a brief explanation of the Defense of Marriage Act (DOMA),while Part IV.B includes a summary of the case’s factual and procedural background. Part IV.C parses the opinion and includes a summary and synthesis of the majority’s analysis in order to better understand how the Court arrived at its holding. Part IV.D concludes this section by arguing that Windsor is a liberty case instead of either a traditional Due Process case or traditional equal protection case. Finally, Part V proposes that the liberty-centered analysis applied in Lawrence and Windsor increases the likelihood that the Court, at least as currently composed, will employ a similar analysis in a future case addressing the constitutionality of state same-sex marriage bans. This Article concludes with the proposition that Lawrence and Windsor set the doctrinal stage for what will undoubtedly become known as the Loving v. Virginia of our time.

Wayne A. Logan - One of the best experts on this subject based on the ideXlab platform.

  • Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators
    Social Science Research Network, 2003
    Co-Authors: Eric S. Janus, Wayne A. Logan
    Abstract:

    Over the past fifty years the Supreme Court has been repeatedly asked to address the constitutionality of civil commitment laws, including laws specifically targeting sexually violent predators (SVPs). The SVP laws have withstood challenge, in each instance redeemed by their putative civil purpose. Today, however, roughly 13 years after the first modern SVP law was enacted by the State of Washington, serious concern exists over whether the laws are fulfilling their civil purpose, or are merely serving as vehicles for impermissible preventive detention. This Article addresses this question, in the Process exploring the viability of the major remaining constitutional basis to challenge the laws: that police power commitment authority entails a strong, enforceable right to treatment, indeed, effective treatment, designed to achieve material progress toward community re-entry. Our argument takes on the conventional judicial wisdom that discounts the right to treatment for the dangerous mentally disordered. Tying together thirty years of the Court's cases, we establish that without treatment progress, involuntary civil commitment, although perhaps legitimate ab initio, can over time become unconstitutional punishment. To ensure that this principle is honored, we devise an analytic framework that is sensitive to the deference properly owed states in the operation of their SVP regimes, yet fulfills the imperative that courts carefully scrutinize state deprivations of liberty on the cusp of the shadowy civil-criminal divide. The Article begins by discussing Seling v. Young, in which the Supreme Court turned back a right-to-treatment claim for habeas relief. Noting that Young was an ex post facto/double jeopardy case, the Article turns to the Court's Substantive Due Process jurisprudence. We argue that there are limits to the hands-off deference that courts often express regarding treatment claims. The right to treatment is often thought of in monolithic terms. We argue that the constitutional right to treatment has several distinct analytic branches. Treatment must be a purpose of commitment if it is to retain its civil cast. However, for a variety of reasons, the Constitution does not impose a treatment-amenability standard as a pre-condition for police power commitment. Further, the details of treatment are properly left to the discretion of state professionals. Nonetheless, the duration of confinement must be related to its treatment purpose. This principle suggests the invalidity of commitments whose duration is excessive in relation to a treatment purpose. In a series of cases, the Court has insisted that commitments, even those valid ab initio, must end when their constitutional underpinnings disappear. We argue that this principle requires release if effective treatment has not been provided within a reasonable period.