Substantive Due Process after Gonzales v. Carhart

Abstract:     
This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

Keywords: substantive due process, washington v. glucksberg, rights deeply rooted in history and tradition, assisted suicide, Lawrence v. Texas, gay rights

JEL Classifications: K19

Accepted Paper Series