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Substantive due process

About: Substantive due process is a research topic. Over the lifetime, 835 publications have been published within this topic receiving 4377 citations.


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TL;DR: A Critical Analysis of Police and Punishment Index is presented in this article, with a focus on the power of men and things in the power to govern men and their things and the problem of Legitimation.
Abstract: Acknowledgments Introduction: "The Power to Govern Men and Things" Part I. From Household Governance to Political Economy 1. Police as Patria Potestas 2. Blackstone's Police 3. Continental Police Science Part II. American Police Power 4. Policing the New Republic 5. Definition by Exclusion 6. Police Power and Commerce Power Part III. Police, Law, Criminal Law 7. The Forgotten Power and the Problem of Legitimation 8. The Law of Police: Internal and External Constraints 9. Lochner's Law and Substantive Due Process Conclusion: Toward a Critical Analysis of Police and Punishment Index

181 citations

Journal ArticleDOI
TL;DR: Lawrence v. Texas as discussed by the authors is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, validating a preference for men over women in the administration of estates.
Abstract: The Supreme Court's decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution.

104 citations

Journal ArticleDOI
TL;DR: This essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny.
Abstract: Recent scientific innovations, and proposed legislation, have raised questions about the nature of the constitutional right to reproductive freedom, and in particular about whether there is a constitutional "right to clone." This essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny. At the same time, many of the arguments for banning both forms of cloning are based on ignorance, myths, and speculation. It is extremely important to distinguish between reproductive and nonreproductive cloning, and it is equally important to distinguish among the various rationales for banning each. Some of those rationales have some, but others, including some of the most influential, are exceedingly weak.

98 citations

Journal ArticleDOI
TL;DR: The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own.
Abstract: In many cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the due process clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive. Even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial assumptions about the likely goodness of traditions and the institutional incapacities of judges.

96 citations

Journal ArticleDOI
TL;DR: Cushman as discussed by the authors reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change.
Abstract: Rethinking the New Deal Court challenges the prevailing account of the New Deal era Supreme Court, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

81 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
20239
202211
20212
202012
20195
201814