Showing papers on "Substantive due process published in 2000"

The constitution and the New Deal

Abstract: Preface Introduction I Complicating the Conventional Account 1 The Conventional Account 2 The Transformation of the Constitutional Jurisprudence of Foreign Relations: The Orthodox Regime under Stress 3 The Triumph of Executive Discretion in Foreign Relations 4 The Emergence of Agency Government and the Creation of Administrative Law 5 The Emergence of Free Speech II The Constitutional Revolution as Jurisprudential Crisis 6 The Restatement Project and the Crisis of Early Twentieth-Century Jurisprudence 7 The Constitutional Revolution as a Crisis in Adaptivity III The Creation of Triumphalist Narratives 8 The Myths of Substantive Due Process 9 The Canonization and Demonization of Judges 10 Cabining the New Deal in Time Notes Index

Federalism and the Double Standard of Judicial Review

Abstract: From 1937 to 1995, federalism was part of a "Constitution in exile." Except for the brief interlude of the National league of Cities doctrine, the post-New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-a-vis the states. The reason, by all accounts, has much to do with federalism's historic link to other aspects of our expatriate constitution -- e.g., economic substantive due process, legislative non-delegation -- which were banished for their collusion against the New Deal. The revival of federalism as a constitutional force in 1995 with the Supreme Court's decision in United States v. Lopez has spurred renewed efforts to link "states' rights" to the discredited aspects of the Court's pre-New Deal jurisprudence. In this Article, we respond to these claims by asking whether federalism and economic substantive due process really belonged in constitutional exile together in the first place. The Supreme Court has not, of course, taken the Lochner experience as a cue to abandon the power of judicial review altogether. Instead, the Court simply has shifted its most searching judicial scrutiny from one class of cases, generally involving state and federal regulation of economic life, to others, involving free speech, personal privacy, and racial and gender equality. This shift is frequently described as "a double standard of judicial attitude." Part I of this Article attempts to pin down the precise content of the double standard of judicial review that arise after 1937 and to uncover the most plausible justifications for it. Part II addresses the double standard's "competence" rationale, concluding that judges face similar difficulties in all areas where the constitutional text provides little precise guidance. The fact that federalism is one of these areas does not justify the abdication of judicial responsibility for enforcing limits on national power vis-a-vis the states. Part III turns to the "necessity" rationale, which we contend offers neither an accurate account of the double standard's distinction between what is enforced and what is not, nor adequate protection for the states within our constitutional system. Finally, Part IV argues that federalism concerns are intimately connected to the sort of individual rights that receive vigorous protection under the double standard. Any perceived opposition between individual rights and states' rights is a product of contingent historical facts of questionable current relevance. Indeed, history is replete with examples in which state autonomy is not a barrier to, and is in fact essential for, the maintenance of individual liberty.

The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s

Abstract: Preface The Conventional Wisdom An Overview of Lochner-Era Susbstantive Due Process What Motivated the Old Court? The Question of Unequal Bargaining Power The Originalist Challenge Summing Up and Looking Ahead Bibliography Index

Formalism and Realism in Commerce Clause Jurisprudence

Abstract: This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly expanded federal power and prompted a crisis in Commerce Clause jurisprudence that was ultimately resolved by adoption of a political process approach to both affirmative and dormant Commerce Clause adjudication. The categories that had unified affirmative and dormant Commerce Clause jurisprudence were abandoned, decoupling the two lines of doctrine and rendering them no longer developmentally interdependent. The two lines went their separate ways, economic substantive due process disappeared, and the enterprise of interdoctrinal coordination that had held a vast body of constitutional law together was lost to history. We continue to study the development of these lines of doctrine in our Constitutional Law curricula, but we do so in an ahistorical manner that obscures understanding. We study the development of doctrine topically rather than synchronically, wresting lines of doctrine from the related doctrinal contexts in which they developed. Such decontextualization, in this case as in others, is a surefire method of making the entire undertaking look preposterous. Looking back at this jurisprudence from the vantage and through the categories of our contemporary constitutional sensibility, it becomes difficult to understand how any intelligent person could ever have taken the enterprise seriously. Yet a very great many clearly did. This piece seeks to understand why and how that could have been, while at the same time explaining why the enterprise unraveled in the way it did when it did. What emerges, I hope, is a new way of thinking and teaching about constitutional development in this critical period.

The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment

Abstract: This article, analyzing debates in Congress and Supreme Court opinions and briefs between 1868 and 1880, proposes to overturn more than a century of conventional wisdom regarding the early understanding on whether the Fourteenth Amendment "incorporates" the Bill of Rights and applies it to the states. The prevailing orthodox view is that Justice Miller's 5-4 majority opinion in the Slaughter-House Cases (1873) rejected incorporation and gutted the Fourteenth Amendment Privileges and Immunities Clause. But in books published in 1953 and 1980, William Winslow Crosskey and John Hart Ely suggested that both the majority and dissenting justices in Slaughter-House may in fact have supported incorporation. Robert Palmer developed this idea in a 1984 article, as did Kevin Newsom in a 2000 article published shortly before the present article.This article builds in part on Crosskey, Ely, Palmer, and Newsom, and argues that total incorporation via the Privileges and Immunities Clause may indeed have been a minimum view (a potential compromise) accepted by all the justices in Slaughter-House. The article, however, has a considerably broader scope. It analyzes key source materials only lightly explored (if at all) by earlier scholars, most notably critical debates in Congress in 1873-74 and 1876. It disagrees with Newsom's analysis of post-Slaughter-House cases, and is the first work to consider in depth, in this regard, the contemporary briefs and arguments before the Court. That resource has rarely been explored in previous scholarship in this area, and produces surprising findings, including that incorporation was favorably discussed (and virtually unchallenged by any party) in the Slaughter-House briefs, and that the issue was not even properly before the Court in United States v. Cruikshank and Walker v. Sauvinet, key 1876 decisions which undermined the theory.The 1873-74 debates in Congress reveal that the Slaughter-House Cases were read in an incorporationist light by lawyer-politicians across the political spectrum - including, indeed especially, by the most conservative, anti-Reconstruction Southern Democrats. Indeed, the notion that the Fourteenth Amendment at least applies all textual Bill of Rights guarantees to the states appears to have briefly emerged as a baseline consensus during the early 1870s. But in a series of cases in the mid-to-late 1870s - including Edwards v. Elliott (1874), Cruikshank and Walker in 1876, and additional decisions in 1878 and 1880 - the Supreme Court seemed to abandon the incorporation theory. This article explores the previously unrecognized degree of discontinuity, poor or nonexistent reasoning, and outright procedural impropriety in these cases. The article also speculates about what might have caused the incorporation compromise to become lost, and concludes by suggesting that its historical insights should place the incorporation theory on a stronger foundation in the modern Court, which signalled in Saenz v. Roe (1999) a willingness to reexamine the Fourteenth Amendment Privileges and Immunities Clause.A sequel to this article, "The Road to Twining: Reassessing the Disincorporation of the Bill of Rights," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), pursues the treatment of the incorporation theory by the Supreme Court from 1880 to 1908. Additional articles by Professor Wildenthal discuss the original understanding with regard to incorporation during the period from 1866 to 1873. See "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007) (available at http://ssrn.com/abstract=963487); "Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873," 18 J. Contemp. Legal Issues 153 (2009) (available at http://ssrn.com/abstract=1354404).

Good cop, bad cop: federal prosecution of state-legalized medical marijuana use after United States v. Lopez.

Abstract: The Supreme Court's recent decisions in United States v. Lopez and United States v. Morrison articulate a vision of federalism under which Congress's regulatory authority under the Commerce Clause is severely limited in favor of returning traditional areas of state concern, particularly criminal law enforcement, to local or state control. The Court's decisions in these cases coincide with ballot initiatives legalizing the medical use of marijuana garnering a majority of the vote in California, Arizona, Alaska, Colorado, Nevada, Oregon, Washington, Maine, and Washington D.C. Those who use marijuana for medical purposes under sanction of state law, however, still face the threat of federal prosecution under the Controlled Substances Act. Medical marijuana proponents have traditionally, and unsuccessfully, contested federal prosecution using individual rights arguments under theories of equal protection or substantive due process. This Comment argues that after Lopez and Morrison, the federal government's authority to regulate intrastate use of marijuana for medicinal purposes is not the foregone conclusion it once was. The author suggests that proponents of medical marijuana use should invoke the federalism arguments of Lopez and Morrison and argue for state legislative independence from the federal government on this issue.

Naked Land Transfers and American Constitutional Development

Abstract: The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on "certain great principles of justice"rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in naked land transfer cases imposed clear constitutional limits on federal power even if, in a technical sense, those rules did not strike down a particular federal measure. Such cases as Polk's Lessee v. Wendal & Al, United States v. Percheman, and Pollard's Lessee v. Hagan provide an unappreciated link between Calder v. Bull and Lochner v. New York in the development of fundamental rights jurisprudence, and an unappreciated link between Marbury v. Madison and Dred Scott v. Sandford in the establishment of judicial review. I. INTRODUCTION Legislation "taking the property of worthy A and giving it to the undeserving IT' was "the paradigmatic constitutional taboo" during the nineteenth century.1 Supreme Court opinions proclaimed, "[i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers" as the power to make "a law that takes property from A. and gives it to B."2 Leading constitutional treatises similarly declared, "if the legislature should take the property of A., and give it to B., . . . the law would be clearly unconstitutional and void."3 Antebellum jurists confidently asserted this constitutional limitation on both state and federal power even though the original Constitution as amended in 1791 lacked explicit bans on all uncompensated state government takings of private property and on compensated state takings for no public purpose.4 Moreover, nineteenth-century justices did not treat the Takings Clause of the Fifth Amendment as the primary source for the ban on federal expropriation.5 The prohibition on these "naked" land transfers-the distribution of property "solely on the ground that those favored have exercised raw political power to obtain what they want"6--was almost universally recognized as an unenumerated, or at least not specifically enumerated, constitutional property right, valid against both state and federal action.7 "Taking from A and giving to B," historian John V. Orth documents, was used as "the shorthand to describe what substantive due process was designed to prevent."8 This constitutional prohibition on naked land transfers played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of granting to B property that belonged to A. When resolving these cases, antebellum justices relied heavily on "certain great principles of justice"9 rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional.10 More frequently, Marshall and Taney Court decisions in naked land transfer cases imposed clear constitutional limits on federal power even if, in a technical sense, those rules did not strike down a particular federal measure. The justices consistently misread or ignored federal statutes, making absolutely clear that the statute would have been declared unconstitutional if interpreted according to its obvious meaning. Such cases as Polk's Lessee V. Wendal & Al,11 United States u. Percheman,12 and Pollard's Lessee v. Hagan13 provide an unappreciated link between Calder v. Bull14 and Lochner v. …

Fundamental Rights: History of a Constitutional Doctrine

Abstract: One of the most important modern developments in American constitutional law has been the extension of the Bill of Rights to the states. The most important guarantees of the first eight amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, along with the doctrine that these are rights that are so "fundamental" that any restriction is subject to judicial "strict scrutiny." The process has nationalized fundamental rights, giving them a preferred dignity and majesty. In this volume, the renowned constitutional scholar, Milton Konvitz, traces the development of fundamental rights from the early days of American jurisprudence through twentieth-century cases involving the right to privacy, racial discrimination, voting rights, censorship, and abortion laws. In Konvitz's astute view, the Bill of Rights in the Constitution of the United States, like the Ten Commandments, places no priority among protected or guaranteed rights. He argues that values, ideals, rights, liberties, and privileges need to be placed in a hierarchical order or scale. The Supreme Court, acting on a case-by-case basis, has slowly and cautiously moved to designate some rights as superior to others. This idea that some rights are of a "fundamental" nature, while others are not, can be traced back to the early days of the nation's government. Konvitz shows that there may be said to be not one, but two or even three bills of rights, one for the Federal government and one for the States. Still another, may be an unwritten but evolving Bill of Rights. The Court has recognized rights or liberties that are in no written constitution, as for example, a right to marry, a right to have a family, a right to choose education of one's children in a private, even a religious, school, rather than a public school. In an illuminating fashion, Konvitz, whose writings have been cited in Supreme Court decisions, traces the controversial and very uneven line of development of such "fundamental rights." This volume is likely the first book on the subject and a pioneering work in the history of American constitutional law. Accessibly written for a general and scholarly audience, it will be of particular interest to political scientists, historians, and constitutional scholars.

Formalism and Realism in Commerce Clause Jurisprudence

Abstract: This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly expanded federal power and prompted a crisis in Commerce Clause jurisprudence that was ultimately resolved by adoption of a political process approach to both affirmative and dormant Commerce Clause adjudication. The categories that had unified affirmative and dormant Commerce Clause jurisprudence were abandoned, decoupling the two lines of doctrine and rendering them no longer developmentally interdependent. The two lines went their separate ways, economic substantive due process disappeared, and the enterprise of interdoctrinal coordination that had held a vast body of constitutional law together was lost to history. We continue to study the development of these lines of doctrine in our Constitutional Law curricula, but we do so in an ahistorical manner that obscures understanding. We study the development of doctrine topically rather than synchronically, wresting lines of doctrine from the related doctrinal contexts in which they developed. Such decontextualization, in this case as in others, is a surefire method of making the entire undertaking look preposterous. Looking back at this jurisprudence from the vantage and through the categories of our contemporary constitutional sensibility, it becomes difficult to understand how any intelligent person could ever have taken the enterprise seriously. Yet a very great many clearly did. This piece seeks to understand why and how that could have been, while at the same time explaining why the enterprise unraveled in the way it did when it did. What emerges, I hope, is a new way of thinking and teaching about constitutional development in this critical period.

The 'Anti-Boomer Effect:' Property Rights, Regulatory Takings, and a Welfare Model of Land Ownership

Abstract: In this article I briefly examine the history of regulatory takings jurisprudence and fit it within both an originalist interpretation and the historical tradition of economic substantive due process doctrines. I then examine the property rights movement more specifically and suggest that the source of the problem is two-fold: the happenstance of the repudiation of Lochner era economic due process has forced advocates to stretch the takings clause to cover cases that might more appropriately be handled under due process analyses, and the critical situation in the environmental and growth management areas, caused by our unprecedented population growth and the resulting strain on our natural environment, has led to more stringent land use controls that conflict with a long-standing mythology of absolute property rights. Objections to land control have spilled over into a wide variety of land-use regulations including historic preservation, national rivers and streams clean-up initiatives, rails-to-trails conversions, billboard removal in highways, endangered species protections, limits on grazing permits on federal lands, coastal zone protections, and a wide variety of environmental, zoning, and growth management laws. 15 In conclusion, I suggest a two-fold solution to dealing with the claims of the property rights movement: a return to due process as the proper analytic tool for viewing deprivation of property rights, and a shift away from a rights-based model of property law to a stewardship or welfare model, which recognizes and more fully protects important claims of the public to restrict detrimental uses of land.

On Listening to the Kulturkampf, Or, How America Overruled Bowers v. Hardwick, Even Though Romer v. Evans Didn’t

Abstract: Is Bowers v. Hardwick still good law? It’s been fourteen years since the decision upholding Georgia’s sodomy law knocked the wind out of the gay rights movement and signaled an end to the expansion of the Supreme Court’s substantive due process jurisprudence. Fourteen years, and much has changed: a largely different Court; a subsequent “gay rights case,” Romer v. Evans; but also an exponential rise in openly gay television characters, Hollywood celebrities, and politicians; a widespread extension by corporations of family benefits to gay and lesbian domestic partners; and unprecedented public debate on gay marriage, gays in the military, gays at the office, gays just about everywhere. Is the old, quaint reasoning of Bowers still the law of the land? Upon close reading, I think it is impossible to maintain that the 1996 decision of Romer v. Evans, which voided as unconstitutional a Colorado state constitutional amendment banning gay rights ordinances, overruled Bowers. Different in tone, Romer never mentioned Bowers, the cases rest on different grounds (Romer on the Equal Protection Clause, Bowers on the Due Process Clause), and the laws at

Municipal Police Power in Washington State

Abstract: Local governments in Washington State have enjoyed strong regulatory powers since the state's constitution was adopted in 1889. Those "police powers" initially focused on the protection of public health and safety, but broadened in the early twentieth century to encompass the protection of consumers and employees and the promotion of the general welfare. The Supreme Court of Washington sparingly applied "substantive due process" as a brake on the police power and promptly dropped that doctrine when the U.S. Supreme Court ceased its use in the 1930s. However, the vocabulary of substantive due process lived on in state court opinions defining the inherent nature and scope of the police power. Furthermore, substantive due process has been resurrected as a constitutional doctrine in a narrow group of land use cases-an unnecessary revival given the built-in limits on local regulatory activities.

The Road to Twining: Reassessing the Disincorporation of the Bill of Rights

Abstract: This article (a sequel to "The Lost Compromise," 61 Ohio St. L.J. 1051 (2000), available at http://ssrn.com/abstract=229228) analyzes the early understanding in the Supreme Court, from 1880 to 1908, regarding "incorporation" of the Bill of Rights in the Fourteenth Amendment. The article provides a fresh and comprehensive analysis of all the relevant cases, with special attention to the briefs and arguments presented to the Court, a resource previously underused by scholars. It demonstrates that an incorporationist reading of the Slaughter-House Cases (1873), however unorthodox that may seem to modern legal thinkers, reverberated in the first extensive pro-incorporation argument presented to the Court, by John Randolph Tucker in Spies v. Illinois (1887). That incorporationist reading of Slaughter-House may also have played a role in the dissents by three Justices who embraced the incorporation theory in O'Neil v. Vermont (1892).The article details the treatment of the Bill of Rights incorporation theory up through the Court's historic decision in Twining v. New Jersey (1908), which embraced a theory of total disincorporation. It shows how this early case law has been profoundly misunderstood by earlier scholars, notably by Professor Stanley Morrison in a 1949 Stanford Law Review article (the companion to Professor Charles Fairman's famous analysis of the original understanding of the Fourteenth Amendment). In particular, it defends the first Justice John Marshall Harlan's historic and critical role in these cases.The article concludes by surveying the Court's modern treatment of the incorporation theory, and by noting the recent revival of the Fourteenth Amendment Privileges and Immunities Clause in Saenz v. Roe (1999). It argues that the evidence analyzed should place the incorporation theory on a stronger foundation as the Court faces a new century.Additional articles by Professor Wildenthal discuss the original understanding with regard to incorporation during the period from 1866 to 1873. See "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007) (available at http://ssrn.com/abstract=963487); "Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873," 18 J. Contemp. Legal Issues 153 (2009) (available at http://ssrn.com/abstract=1354404).

Abortions of the Parental Prerogatives of Unwed Natural Fathers: Deterring Lost Paternity

Abstract: A natural father's biological relationship with his child is often insufficient by itself to trigger the father's parental rights recognized within the "substantial protection" of the Due Process Clause of the Fourteenth Amendment or within comparable protections afforded by other federal or state laws. Rather, there is often required "an actual relationship" involving the assumption of parental responsibility, at least where there is no legal presumption of paternity or a certain affirmative act by an alleged natural father, like acknowledging paternity voluntarily. Determinations of actual relationships are frequently necessary and quite difficult where the natural father is not married to the natural mother. Typically, an "actual relationship" arises for an unwed natural father where he "demonstrates a full commitment to the responsibility for the child's future." Yet at times, even an actual relationship may be insufficient to trigger parental rights for an unwed natural father, as when the natural mother is married to another man. By contrast, federal and state law protections of parental rights generally are accorded automatically to unwed natural mothers who conceive, carry, and bear. The U.S. Supreme Court has justified the differing treatment of an unwed natural father and an unwed natural mother, in part, because the "parental relationship is clear" for the mother. Courts generally accord federal and state parental rights protections automatically to certain men, including some who are not natural fathers. Natural fathers who were married to the natural mothers at the time of conception, pregnancy, and/or birth usually receive parental rights. Comparable parental rights for men who have not established actual relationships with their children or have not taken certain affirmative acts also arise automatically for men who are not natural fathers, as long as they were married to the natural mothers at some relevant time prior to or at the time of birth. Unlike married natural fathers, however, these men may only be accorded presumptive parental rights, with the presumption being rebuttable. Thus, under federal substantive due process an unwed natural father may have "an opportunity that no other male possesses to develop a relationship with his offspring." While American lawmakers may not negate, and in fact must safeguard to some extent, the opportunity of certain unwed fathers to step up to these "parental prerogatives," they may also expand the opportunities for unwed natural fathers to achieve parental rights. In settings where the federal constitution and supplementary federal and state laws afford unwed natural fathers opportunities to step up to parenthood, often there is little guidance on which men and how men may successfully come forward. Particularly difficult issues arise where there exist competing interests, including the parental prerogatives of the natural mothers, the best interest of children, extant marital unions, and fiscal concerns. Determinations as to the appropriate levels of governmental safeguarding of the parenthood opportunities of unwed natural fathers are especially difficult where there fathers may be unaware of their newborn children through no fault of their own; where they would likely step forward if they did know; and, where more overall good than harm would likely, or at least might, arise if they did step up. The abortion of such parenthood opportunities due to inadequate governmental safeguards receives attention here. To date, there has been little commentary, much confusion, and conflicting laws. Focusing on governmental safeguarding of the parenthood opportunities of unwed natural fathers requires inquiries into the acts of natural mothers. Natural mothers can thwart unwed natural fathers eligible to step up and thereby acquire parental prerogatives. Laws can help reduce lost opportunities for male parenthood by regulating the conduct of natural mothers. Laws can operate both while the opportunities for male parenthood remain open and after such opportunities have passed. Thus, laws can prompt prevention as well as compensation and deterrence. Prevention can be built, for example, into existing laws on birth certificates and putative father registries. Past conduct can be addressed, for example, through new or expanded civil claims involving fraud or infliction of emotional distress. In focusing on the inadequate governmental safeguarding of the parenthood opportunities of unwed natural fathers, this article initially explores U.S. Supreme Court decisions and supplementary federal and state laws. Part II demonstrates how high court decisions leave unresolved many important issues that other contemporary laws then fail to address, or to address well. It suggests that confusion over the differences between federal substantive and procedural due process rights may explain certain failings. Part Ill briefly reviews key issues involving eligibility and techniques for stepping up to paternity under law that remain open under federal precedents. Finally, Part IV more fully reviews the adequacy of governmental safeguards of the federal due process parental interests of unwed natural fathers, including in settings in which women easily can, and sometimes do, abort male parental prerogatives. It suggest reforms that provide clearer guidance, that encourage and permit more unwed natural fathers to step up to parenthood, and that provide remedies to those natural fathers whose parenthood opportunities under law have been wrongfully aborted. The article posits that certain reforms are, in fact, required by federal constitutional procedural due process principles operating both before and after possible male parental prerogatives have been aborted.