The Second Death of Substantive Due Process
Daniel O. Conkle
Indiana University Maurer School of Law
Indiana Law Journal, Vol. 62, p. 215, 1987
Indiana Legal Studies Research Paper
This article addresses the theoretical integrity of the Supreme Court's decision in Bowers v. Hardwick, upholding criminal restrictions on homosexual conduct. It discusses several possible theories of nonoriginalist constitutional decisionmaking, including theories based on political process considerations, theories based on the enforcement of national societal values, and theories based on principles of political-moral philosophy. The article concludes that under any plausible theory of decisionmaking, the Court's ruling in Bowers is fundamentally inconsistent with its earlier "privacy" decisions, including especially its decisions protecting the right to abortion.
Number of Pages in PDF File: 28
Keywords: Constitutional Law, Constitutional Theory, Substantive Due Process, Sexuality
JEL Classification: K00, K10, K19, K30, K39Accepted Paper Series
Date posted: June 26, 2006
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