Substantive Due Process Research Articles

A Return to Black Codes: How the Dobbs Decision Debilitated the 14th Amendment

Substantive due process, drawn from the 14th Amendment, has been a consistent judicial doctrine for establishing and protecting the rights and liberties of Black citizens in the face of systemic racism. This prompts a question for political consideration and investigation: if the 14th Amendment is a constitutional equilibrium for rights Black citizens would otherwise not enjoy, could the rescission of a right decided and sustained by the 14th Amendment that is not racially explicit have negative racial implications for Black Americans? This study answers this question through an atheoretical case study on the ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. This study finds that the ruling in Dobbs weakened the 14th Amendment by allowing parameters to be placed on substantive due process. Though the question before the Court was the constitutionality of Mississippi’s abortion law, the implications of weakening the 14th Amendment are that it allows for the legal and cultural revitalization of Black exclusion that existed under the Black Codes, which has already come to fruition in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and the end of affirmative action.

Contemplating the U.S. Supreme Court's Reversal of Roe v. Wade

The Roe case and Casey case were important moments in the women's liberation movement in the United States, recognizing women's constitutional right to abortion, and a fundamental aspect of their autonomy. In contrast, the recent Dobbs case upended the established Roe precedent, rejecting constitutional recognition of women's right to abortion and reverting "regulation of abortion rights to the people and their elected representatives. To delve deeper into this matter, it's crucial to examine the legal doctrines at play. The Roe decision primarily invoked the Substantive Due Process Clause to protect a woman's privacy and reproductive choices, whereas the Dobbs case highlighted the importance of the democratic process and aligns with originalism in constitutional interpretation. This shift raises questions about the durability of constitutional precedents and the evolving nature of constitutional interpretation. The conflict between these cases underscores the profound implications for women's reproductive rights and the broader women's liberation movement, as the nation grapples with the balance between individual autonomy and democratic decision-making in shaping constitutional rights.

Constructing Basic Liberties: A Defense of Substantive Due Process. By James E. Fleming. Chicago: University of Chicago Press, 2022. 280p. $95.00 cloth, $30.00 paper. - Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas. By James B. Staab. Lawrence: University Press of Kansas, 2022. 464p. $44.95 cloth.

Constructing Basic Liberties: A Defense of Substantive Due Process. By James E. Fleming. Chicago: University of Chicago Press, 2022. 280p. $95.00 cloth, $30.00 paper. - Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas. By James B. Staab. Lawrence: University Press of Kansas, 2022. 464p. $44.95 cloth.

Dobbs v. Jackson Women’s Health Organization: The Epitaph for Roe v. Wade

Abstract Since the Roe v. Wade decision was announced (1973), the question of abortion has constituted an important element of American constitutional discourse. This article analyses the most recent decision of the United States Supreme Court on this matter, i.e. Dobbs v. Jackson Women’s Health Organization, which rejected the thesis that the Constitution establishes the right to terminate pregnancy. It is possible to identify three fundamental points of the Court’s opinion. First, the Court allowed lawmakers to accept an ontological assumption that a foetus is a human being. Second, the decision was rooted in the doctrine of moderate originalism and in the concept of substantive due process, limited by historical factors. Third, the Supreme Court adopted a liberal interpretation of the stare decisis principle, consenting to the overturning of precedents even if they introduced new civil rights. The author contends that it is highly unlikely that the decision will constitute the last word of American jurisprudence on the question of abortion.

실체적 적법절차원칙의 비판적 검토

The origin of the due process of law goes back to the Constitution, and it was stipulated in the Amendments to the United States Constitution and established as a principle governing the procedural and substantive aspects of governmental actions that deprive life, liberty, and property. The substantive due process was accepted as a criterion for judicial review after the 1880s, and became the basis for invalidating various economic regulatory legislation in the Lochner era. Since the 1960s, the U.S. Supreme Court has derived several fundamental rights not enumerated in the Constitution based on the substantive due process doctrine. The due process of law was first introduced into Korean legal order during the period of the U.S. Military Government in Korea. Article 12 of the current Constitution stipulates due procedures. The Constitutional Court and mainstream theories acknowledge that the provision is an adaptation of the Anglo-American due process of law. However, opinions differ as to whether the substantive due process is necessary in the Korean Constitution. In the United States, the substantive due process is criticized as a conceptual contradiction and that the courts take the place of other institutions. Some argue that the due process of law was procedural in its history, and that fundamental rights should be derived from other constitutional provisions. It is also pointed out that there is inconsistency in the specific application of the due process principle, and that there are limitations in determining fundamental rights based on historical and traditional standards. The practical significance of the substantive due process principle cannot be overlooked. However, in order for the substantive due process principle to be recognized in the Korean Constitution, it needs to be supported by convincing arguments. Korea is a single country, has a general provision on the limit of restriction of constitutional rights, and has a detailed list of fundamental rights, leaving less room for the substantive due process to operate than the United States. However, the arguments presented from the standpoint of affirming the necessity of the substantive due process of law are insufficient. In addition, it is judged that the substantive due process of law has not established itself as an independent judicial review standard in the Korean Constitutional Court, at least until now.

Abortion and Reproductive Freedom: Constitutional and Practical Issues.

In Dobbs v. Jackson Women's Health, the Supreme Court reversed constitutional protection for abortion. The law will affect the practice of medicine and patients. Practitioners should understand the decision. Protection for reproductive liberties has a checkered history. Much of the constitutional controversy is over the basis for reproductive rights, "substantive due process," the proposition that substantive rights arise from a procedural guarantee in the fourteenth amendment. The change in constitutional protection for abortion will play out differently among the states. Physicians should be prepared to assist patients with new rules and to participate in the public discussion of reproductive liberties.

Fair trial and due process: European and American doctrine

The relationship between due process and the "right to a fair trial" in the sense of the European Convention on Human Rights or other international documents is not equivalent. The principle of due process, combined with the right of access to justice, an adversarial and broad protection, closes the cycle of procedural guarantees. In this way, the process is guaranteed, with the appropriate instrumental forms, so that judicial security, when it is carried out by the state, gives to each what is his. Due process of a substantive lawsuit concerns the limitation of the exercise of powers and authorizes a judge to question the validity of a given law and the fairness of state decisions, establishing material control over constitutionality and proportionality. It should be noted that the substantive theory means a fair legal process based on the principles of justice. For this purpose, it mentions the duties of proportionality and reasonableness. This similarity between proportionality and substantive due process is, in our view, very interesting for our analysis, for several reasons: a) it helps to clarify the meaning of substantive due process, which, considered in the abstract, is vague and imprecise; b) helps to eliminate the erroneous opinion that the essential content of due legal procedure will not be applied in the countries of the Romano-Germanic system, with less freedom for the judge than for the judge of the law...; c) reinforces the idea of ​​balance, which permeates the entire judicial process. As in the classic dilemma between speed and security. Given the great concern of modern constitutionalism in ensuring fundamental rights through constitutional process, it has been demonstrated that due process is an expression of democracy and citizenship by gathering in its content the numerous guarantees of the constitutional procedural order.
 This relationship is political and intellectual because due process and the right to a fair trial are elements of institutional liberalism that tend to make judicial moderation initially dependent on a certain number of procedural requirements. This relationship is normative, since both Due Process and the right to a fair trial have a scope that goes beyond the scope of the courts stricto sensu to be applied, including to court decisions.

Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications.

During the COVID-19 pandemic, officials in the United States at all levels of government utilized their legal authorities to impose a wide range of measures designed to control the spread of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19), including shutting down businesses, limiting the size of gatherings, requiring masking, and mandating vaccination. These orders and regulations were challenged in court cases that resulted in more than 1000 judicial decisions. Common claims were based on alleged procedural and substantive due process violations, violations of religious liberty, and violations of officials' scope of authority. In more than three fourths of the decisions, the court refused to grant the plaintiffs the relief sought. However, plaintiffs found success in several notable cases, especially in federal court. These recent decisions, as well as broader prepandemic trends, have important implications for public health officials' exercise of their public health powers, especially when those exercises implicate religious liberty. In this legal environment, officials may need to rely more on the powers of persuasion than on their legal authority alone. (Am J Public Health. 2023;113(3):280-287. https://doi.org/10.2105/10.2105/AJPH.2022.307181).

Challenges in Substantive Due Process Litigation

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, for the most part, substantive due process litigation in the federal courts is litigation under Section 1983. As a result, substantive due process litigation is subject to the doctrinal challenges that apply to Section 1983 litigation more generally. This Article takes stock of these challenges and develops an account of the intersection between substantive due process rights and Section 1983 litigation. It considers four challenges for civil rights plaintiffs common to many cases filed under Section 1983: standing to seek injunctive relief, the qualified immunity defense, the policy or custom requirement for municipal liability, and availability of attorneys’ fees under 42 U.S.C. § 1988. Drawing on both quantitative and qualitative information from the dataset, this Article suggests that each of these areas also presents a challenge for plaintiffs seeking to vindicate substantive due process rights. Further, the vagueness and breadth of many substantive due process rights compounds the challenges presented by Section 1983 litigation in other contexts. This Article concludes by briefly considering the implications of its findings for lawyers, courts, and future researchers.

Death After Dobbs

Courts have recognized that decisions about medical care near the end of life enjoy both common law and constitutional protections since the 1970s, when patients, their families, and the medical establishment invited legal input into those intensely private discussions. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court famously “strongly assumed” that substantive due process protected decisions to withhold or withdraw such treatment as arising from a fundamental liberty interest. Beginning on June 24, 2022, however, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization prompted concern over whether substantive due process protection for end-of-life decision-making would disappear. Barring total annihilation of substantive due process, federal constitutional protection of end-of-life medical decisional liberty will, at a minimum, continue to exist to the same extent it does now. The Dobbs Court emphasized that it had not overruled a line of substantive due process cases involving personal decisions other than abortion, thus preserving arguments that the Federal Constitution protects end-of-life medical decisional liberty writ large as a fundamental right. Even applying the test of Dobbs, the Court’s “strong assumption” remains valid after Dobbs, so decisions to reject life-sustaining treatment will continue to enjoy the same, if not more, constitutional protection they enjoyed before Dobbs. Some advance directives face greater scrutiny, however, and it seems clear that medical aid in dying will continue to rely on state law as a source.

Dobbs, History and Tradition, and Substantive Due Process

Another problematic aspect of the Supreme Court’s decision in Dobbs v. Jackson has to do with the legal principle of substantive due process, deriving from the Fourteenth Amendment to the Constitution. This article provided an in-depth examination of the principle of due process, and demonstrates how the Court’s decision in Dobbs winds up restricting that principle, and thus may not provide the strongest legal ground on which to restrict abortion. Instead, the article concluded that interpreting the due process clause according to its original public meaning would resolve a number of the problems associated with the substantive due process doctrine, affecting other matters beyond that of abortion.

Secrecy and Transparency in Substantive Due Process Litigation

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework. But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order. June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases. Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety. This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.

The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

The U.S. Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health Organization cannot be taken seriously. The Court’s stated ra-tionale for rejecting continued protection of the abortion right—that abortion is not deeply rooted in nineteenth century history and tradi-tion—applies with equal force to other substantive due process rights that the Dobbs Court repeatedly insisted were not under threat even without considering stare decisis, including contraception, sexual inti-macy between consenting adults, and same-sex marriage. One should add inter-racial marriage and protection from involuntary sterilization to that list. Rather than applying its draconian version of the “history and tradition” test in a principled fashion, the Court decided the case based upon moral opposition to abortion and a failure to appreciate that abortion bans old and new are also shaped by gender bias, not just by concerns for fetal life. Further evidence for this realist account of the Court’s decision can be found in the Dobbs Court’s disregard of self-restraint both procedurally and in the opinion-writing process. It is not going too far to charge the Court with having acted lawlessly. A future Court will readily be able to explain why it is overruling Dobbs.

The U.S. Constitution is Not a Code: Unraveling the Idea and the Meaning of Substantive Due Process

This Article delves into the nuanced meaning of substantive due process by tracing its historical and contemporary contexts. Beginning with the exploration of pre-ratification state constitutions, the debates surrounding ratification, and early Court views on the Constitution’s nature (perceived not as a code but an enduring collection of principles), the study then addresses the role and meaning of stare decisis as positive of history and tradition, and the role of judicial decision-making in our system starting from Marbury v. Madison. The Article concludes by linking substantive due process to universally recognized fundamental rights, emphasizing that our Constitution’s true intent is to safeguard these inalienable rights in service of our system and “We the People.”

Renewing Educational Autonomy

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. Substantive due process protections for educational autonomy would enhance and reinforce First Amendment academic freedom to ensure that American colleges and universities can continue to fulfill their important historical mission, while being responsive to the educational needs of today’s students.

Revisiting the “Tradition of Local Control” in Public Education

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court conceived of the tradition not merely as good policy or remedial law but as a principle that was supported by multiple freestanding constitutional provisions. It shows how the policy and remedial law explanations for the tradition do not fully explain the Court’s reasoning. It then demonstrates that the Court located the tradition in the federal Constitution’s guarantees of substantive due process, the right to vote, federalism, and the separation of powers.

The Future of Substantive Due Process: What Are the Stakes?

The Future of Substantive Due Process: What Are the Stakes?

State Constitutional Rights, State Courts, and the Future of Substantive Due Process Protections

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions have not materialized as a robust source of counter-majoritarian rights during earlier periods of federal rights stagnation. To the contrary, state constitutional rights tend to conform with popular sentiment regarding rights because they are heavily mediated by various processes of popular constitutionalism (such as popular election, recall, and retention of state judges, and the initiative and referendum). From this point of view, state constitutional rights have limited potential in protecting political minorities from abusive popular majorities. However, this Article’s second claim is that state constitutional rights are well-situated to address many contemporary rights battles precisely because of their majoritarian nature. Many extant rights conflicts are between statewide popular majorities that support rights expansion and misaligned state governments looking to disregard or evade popular preferences. State constitutional rights are better situated to address this problem than the problem of abusive popular majorities. The challenge for contemporary state courts in this moment is to articulate an independent rights jurisprudence that accounts for the popular nature of state constitutional rights rather than parrot the counter-majoritarian jurisprudence of the United States Supreme Court, which is largely inapposite when adjudicating state constitutional rights. The Article concludes by offering some preliminary thoughts on how state courts might approach today’s rights disputes under state constitutions.

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Dobbs v. Jackson and the Revival of the States' Rights Constitution

AbstractThe US Supreme Court's decision in Dobbs v. Jackson Women's Health ended the federal right to an abortion, first pronounced in the 1973 case Roe v. Wade. Dobbs has immediate implications for American women, but it also exposes a growing hostility by the court to the doctrine of ‘substantive due process’ on which many other federal rights rely. This article argues that the court's weakening of substantive due process is a direct challenge to the constitutional transformation wrought by the Fourteenth Amendment following the Civil War. The amendment asserted a national standard of fundamental rights, profoundly rebalancing power away from the states. Should the Supreme Court extend the logic of Dobbs, the national basis for many substantive due process rights will be removed. The court is reviving a kind of states' rights constitutional thinking hitherto unseen by the current generation of Americans.