Showing papers on "Substantive due process published in 2018"

Preserving Life by Ranking Rights

Abstract: Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights. The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it have long appeared in common law and statute. Federal implementation of ranking due process rights, an ordered substantive due process, would protect our most basic and fundamental right and make our entire legal system more humane. By using a conceptual partition between life and other rights, we can create channels of cooperation to solve problems of incommensurability and to provide a more just legal system.

Due Process in Medical Education: Legal Considerations.

Abstract: Throughout the medical education continuum, some students encounter difficulty in meeting academic or professional standards that leads to remediation or dismissal. Termination of a student without due process may lead to litigation by deprivation of a student's property or liberty interest. This article outlines the concept of procedural and substantive due process as applied to litigated student dismissal cases in undergraduate and graduate medical education. Determination of the amount of due process owed is based on whether the dismissal is academic or nonacademic. The decision to dismiss a student where the entire student record has been reviewed, due process provided, and the institution complied with its own policies is usually upheld by the courts in litigation.

No Arbitrary Power: An Originalist Theory of the Due Process of Law

Abstract: “Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

Challenging the Punitiveness of “New-Generation” Sorn Laws

Abstract: Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-a-vis current and future potential registrants.

Substantive Due Process and the Politicization of the Supreme Court

Abstract: Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions. This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping our nation’s laws and destiny: But was it ever intended to? This paper first examines the legal arguments in favor of substantive due process to determine whether the judiciary was designed to be the “bulwark” of natural as well as clearly scribed law. Then, employing a novel framework to measuring judicial politicization, the thesis tracks the doctrine’s application throughout its most prominent case studies. Often arriving at nuanced conclusions, we observe that the truth is more often painted in some gradation of grey than in black or white.

Characterizing Constitutional Inputs

Abstract: Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: Substantive due process doctrine commands attention to whether a violated “right” qualifies as fundamental or non-fundamental; commerce clause doctrine commands attention to whether a regulated “activity” qualifies as economic or non-economic; the strict-scrutiny test commands attention to whether a relevant “government interest” qualifies as compelling or non-compelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a precondition to reaching constitutional results. To determine whether the government has violated a “fundamental right,” courts must first characterize the relevant “right” whose “fundamentality” is at issue. To determine whether a congressional enactment regulates an “economic activity,” courts must first characterize the relevant “activity” whose “economic” nature must be scrutinized. To determine whether a challenged law pursues a “compelling government interest,” courts must first characterize the relevant “government interest” whose importance is to be assessed. Tests of this sort thus implicate not just the familiar judicial challenge of evaluating a given variable by reference to an established doctrinal criterion, but also the less-familiar (and often un-noticed) challenge of extracting from a fact pattern an operative characterization of the variable to be evaluated. This Article examines these “input-characterization” problems as a general challenge of constitutional decision-making. The Article makes three contributions: First, the Article demonstrates the widespread presence of characterization problems within constitutional law, highlighting both the broad range of contexts in which these problems arise and the limited amount of attention they have thus far generated. Second, the Article explores the possibility of avoiding input-characterization problems through the re-formulation of constitutional decision-rules, considering in particular the tradeoffs implicated by the replacement of “characterization-dependent” decision rules with “characterization-resistant” alternatives. Finally, the Article works through the various methods by which courts might confront characterization problems on their own terms, asking whether there exist reliable and predictable means of selecting an authoritative input characterization from the many possibilities that the facts might afford. In sum, this analysis reveals that input-characterization problems are neither easily avoidable nor easily solvable, thus raising critical questions regarding the determinacy and coherence of the doctrine writ large.

How to Argue Liberty Cases in a Post-Kennedy World: It's Not About Individual Rights, But State Power and the Social Compact

Abstract: With the appointment and probable confirmation of Brett Kavanaugh to the U.S. Supreme Court, social conservatives have locked in a 5-4 majority, likely for a generation. The constitutional doctrine most likely on the brink of extinction is substantive due process: the idea that certain unenumerated privacy interests are constitutionally protected. Over the course of several decades, conservatives have drawn progressive legal thinkers and jurists into an unseemly debate about body parts and bodily functions; in this way, conservatives were winning an ideological war while losing some battles. Conservatives, by indulging fear-based arguments about abortion, sodomy, and the "homosexual agenda," made progressives focus on discrete and narrowly defined individual rights rather than on the authority, jurisdiction, and competence of the state to regulate activities that are components of citizen life--where governments have no business regulating, regardless whether those activities implicate some kind of "fundamental right." Progressive advocates must become expert on the philosophy of John Locke, using it to appeal to conservatives' stated suspicion of governmental overreach and fealty to originalism. Locke, whose writing clearly formed the basis for the words 'retained' in the Ninth Amendment and 'reserved' in the Tenth, focused on the limited power of government to interfere in the private lives of its subjects rather than the scope of the individual's jurisdiction over his or her own discrete choices. By focusing on the latter rather than the former, progressives abandoned solid ground and stepped into a minefield that conservatives had laid down; conservatives successfully framed issues around personal privacy in such a way that progressives could not ultimately win. The time is now for progressive to re-frame these issues, focusing on the broad power generally reserved to the people over their own personal and moral choices (and thus beyond the jurisdiction or reach of any government) rather than the historical or traditional views of narrow and discrete (and often personal to the point of embarrassment) "rights" or privacy interests.

Immigration Law's Due Process Deficit and the Persistence of Plenary Power

Abstract: In recent years, the judicial branch has given less deference to Congress when constitutional rights and protections are in question, moving towards the potential constitutional mainstreaming of immigration law. However, the Jennings v. Rodriquez Court failed to seize this opportunity, at a pertinent time. The Court could have continued the move away from the plenary power doctrine and acted as a check on the political and executive branches by further bringing constitutional norms into immigration law. Particularly because of the history of systemic ethnic and racial bias in immigration law, the Jennings v. Rodriguez Court’s validation of the constitutional due process question would have had indirect ramifications beyond the immediate due process issue. Racialized noncitizens of color, particularly Mexican and Central American refugees, are incarcerated for attempting to migrate, increasingly, and with deterrent and punitive intent, since the initial drafting of this article. The first section of this article will set forth the doctrinal context concerning detention of asylum seekers arriving at a United States port of entry. The second section will explore the Court’s substantive due process jurisprudence pertaining to immigration detention, including discussion of the Jennings v. Rodriguez litigation. The third section will continue the examination of preventative civil immigration detention, with a focus on one district court case suggesting a limit on such detentions. The fourth section will broaden the discussion to non-immigration civil and criminal preventative detention to present due process limitations in those contexts to highlight the potential due process analysis if civil immigration detention due process questions were brought within the constitutional mainstream. The fifth section will transition to the historical mistreatment in immigration law, of Central American and Mexican immigrants to contextualize their modern-day extra-constitutional incarceration as asylum seekers. The fifth section will also touch on the role of the plenary power doctrine in continuing to enable implicit racial and ethnic bias in immigration law to better understand the role the doctrine continues to play in adversely racializing particular groups of immigrants. Finally, the last section proposes a combined methodology of disaggregation and application of rule of law principles to provide a path to move immigration law towards the constitutional mainstream.

The Technologies of Race: Big Data, Privacy and the New Racial Bioethics

Abstract: Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, thus violating a protected privacy interest in avoiding race-based biological classifications by the government. The ascendance of modern de jure genetic racial classifications has received only minimal attention thus far in the literature, with prominent scholars such as Dorothy Roberts addressing the socio-political roots of the phenomenon. This Article contributes to the discussion by further developing a constitutional framework by which to challenge state-sanctioned biological racial taxonomies.

Fourth Amendment Moralism

Abstract: The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search. This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well-documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary-search doctrine gleaned from the Court’s drug-testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy-based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy. Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.

The Elusive Constitutional Right to Informational Privacy

Abstract: Today, at any moment, many Americans are subject to having their private information stolen or otherwise used without their consent. This Article will discuss the specifics of a constitutional right to informational privacy theory, and a civil lawsuit remedy for the unauthorized governmental use of one's private information. The Fourth Amendment is the most logical constitutional source for this privacy theory; and, a governmental entity, to justify its unauthorized use of private information, must satisfy the strict scrutiny standard by showing a compelling governmental interest that cannot be satisfied by a less intrusive alternative. As a part of this discussion, this Article will review the Supreme Court's substantive due process standards and show how they have changed such that the Court is less bound to a strict historical analysis of an asserted liberty interest. To further this due process analysis, this Article will review some of the Court's Fourth Amendment cases, which show that the Fourth Amendment is the most logical constitutional source to support a constitutional right to informational privacy. The Article also contains a detailed analysis of the Court's major opinions in this area of the law and argues that the Court, contrary to assertions in its most recent opinion on this subject, has previously held that there is a constitutional right to informational privacy. This Article also contains a detailed discussion of federal circuit courts of appeals' opinions, which show that most federal circuit courts give a broader interpretation to the Court's precedent than the Court does itself, and that these circuit courts are providing more leadership in holding that there is a constitutional right to informational privacy. And, this Article will conclude that the broad approach that some of the federal circuit courts have taken is the preferable approach, and that the Fourth Amendment and strict scrutiny should be used to evaluate a constitutional right to informational privacy claim.

'On Desolation Row': The Blurring of the Borders Between Civil and Criminal Mental Disability Law, and What It Means For All of Us

Abstract: One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental disability law system: • the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; • the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock, • the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals, • and the sanctioning of the imprisonment of insanity acquittees in prison facilities. These overlaps blur the borderline between civil and criminal mental disability law in very troubling and problematic ways, and threaten to make this area of the law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental disability law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon. In this paper, we will first trace the development of the two-tiered mental disability law system (with a special focus on the right to refuse treatment). We will then review developments in AOT law (focusing on Kendra’s Law), SVPA law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental disability law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations.

Teaching the Lochner Era

Abstract: This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.