Showing papers on "Substantive due process published in 1977"

Morality Enforcement Through the Criminal Law and the Modern Doctrine of Substantive Due Process

Abstract: American society has available a wide array of tools to influence the conduct of its members, ranging from education and persuasion to deadly force. Yet it has been all too willing to employ that device at the latter end of this spectrum-the criminal sanction-to enforce moral values resting, at best, on the periphery of legitimate societal concern. The criminal codes of our state and federal governments contain numerous prohibitions of acts that do not seem to involve harmful consequences to others besides the actor. In some instances, conduct is prohibited even though morality appears to be the only value protected by the prohibition. Although forceful repression of deviant behavior has been common to all political systems, American society does not sanction the use of the criminal law to repress all conduct inconsistent with majoritarian moral values. Elementary constitutional law dictates that we have a limited government. Certain areas of purely individual concern, guaranteed by the Constitution are protected from governmental intrusion without some "compelling" reason justifying the intrusion.1 This Article considers the extent to which government may use the criminal sanction to coerce competent adults consistently with individual liberty. It examines some of the common criminal proscriptions that have been found to be or arguably should be regarded as beyond the power of government to enforce, and notes the limitations upon governmental power currently recognized by the nation's judiciary and the traditional jurisprudential questions raised by the enforcement of morality. Finally, it advocates an approach to constitutional interpretation that will permit the government to carry out its legitimate function without unnecessarily abridging personal liberty.