Liberty is Not Loco-Motion: Obergefell and the Originalists' Due Process Fallacy (original) (raw)

Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory

2019

Much has been written about Obergefell v. Hodges, holding that same-sex marriage is protected by the Fourteenth Amendment. Virtually all commentators view Kennedy’s majority decision and the dissents as an example of an increasingly polarized Supreme Court. This article challenges that characterization by analyzing Kennedy’s majority opinion and Roberts’ dissent in Obergefell in light of the legal theories of H.L.A. Hart and Lon Fuller. The article argues that, from a legal theory perspective, Kennedy and Roberts exhibit numerous, often surprising commonalities. In addition, Kennedy’s arguments seem to accurately reflect the methodology he explicitly endorses. Roberts, in contrast, seems to exaggerate his originalist commitment to the Constitution because he relies on public policy assumptions that he fails to recognize or defend. I conclude that Kennedy’s substantive due process approach is constrained by explicit Court precedents, rather than being open-ended or idiosyncratic, and...

Obergefell and Democracy

Boston University Law Review, 2016

The lead opinions in Obergefell advocated very different conceptions of the Court’s role in a democracy. Meanwhile, however, both sides of the debate expressed an allegiance to principles of deliberative democracy. The majority engaged in the practice of deliberative democracy by providing a reasoned explanation for its decision that could reasonably be accepted by people with fundamentally competing perspectives, while the dissenters claimed that the Court should have practiced a form of judicial minimalism and deferred to ongoing deliberations in the political process. This Article evaluates Obergefell from the perspective of deliberative democratic theory and concludes that while the Court could reasonably have waited to resolve the constitutional question or invalidated the state laws at issue on narrower grounds, the Court’s decision was democratically legitimate based on the relevant legal, moral, and sociological considerations. The Article therefore rebuts the charge that Ob...

Constitutive Cases: Marbury v. Madison Meets Van Gend & Loos

2009

Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, repeating Magna carta's guarantee of "the law of the land." [FN5] On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes."

Judicial Activism and Arbitrary Control: A Critical Analysis of Obergefell v Hodges

The University of Notre Dame Australia Law Review, 2015

This article critically analyses the recent US Supreme Court decision in Obergefell v Hodges, the samesex marriage case. The court in Obergefell put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. These unelected judges held that their nation's federal constitution should 'evolve' in a way that is supported by neither the document's language, nor its history or authority. In short, they have imposed their worldview on the people at the expense of federalism and the democratic process. This is why Justice Alito was so correct to state that such an exercise of raw judicial power 'usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage', adding that it evinces 'the deep and perhaps irremediable corruption of [the American] legal culture's conception of constitutional interpretation'.

Due Process as Choice of Law: A Study in the History of a Judicial Doctrine

William and Mary Bill of Rights Journal, 2016

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in t...

The “New Judicial Federalism” Before Its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the …

bepress Legal Series, 2005

The coming of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner's doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions' due process clauses to provide substantive protections to economic liberties. This Article presents a comprehensive survey of state court use of economic substantive due process since the New Deal. It includes an enumeration of every instance since 1940 of a state court of highest review protecting economic liberties through state constitutional economic substantive due process. Previous work on the subject has examined this post-New Deal rejection of the United States Supreme Court's jurisprudence, but this is the first study to comprehensively analyze the trends of that rejection. This comprehensive analysis reveals an intriguing, and potentially controversial, discovery. The discovery is that although state courts still to some degree apply state constitutional economic substantive due process in protecting economic liberties, the rate of that application declined dramatically in the 1970s and 1980s. The decline is surprising considering that through the 1940s, 1950s, and even 1960s, a full thirty years after the New Deal, state courts did not shy from invoking the long-past ghost of Lochner. This Article argues that the reason for this relatively sudden decline is that many state judges were comfortable applying economic substantive due process until the coming of Roe v. Wade and its related right to privacy cases. Because the right to privacy cases utilized substantive due process, but of the non-economic variety, a continued use of economic substantive due process provided legitimacy to their holdings. Faced with either legitimizing opinions legalizing abortion and other privacy rights, or rejecting substantive due process altogether, conservative state jurists chose the latter. These conservatives joined with progressive jurists who were already hostile toward the protection of economic liberties. Thus, with these strange bedfellows aligned, the use of economic substantive due process under state constitutional law quickly withered into the rare, but not quite extinct, doctrine that it is today.