Self Restraint and Substantive Due Process
19 Pages Posted: 23 Jul 2012
Date Written: February 23, 2010
This essay contends that the Supreme Court's opinion in Washington v. Glucksberg provides the preferred approach to substantive due process analysis since it exemplifies judicial restraint. It begins by pointing out the necessity for self-restraint because of the few effective formal limits on the Court's authority. It then describes the standard in Glucksberg and, through a historical survey, demonstrates that it revives the approach to Fourteenth Amendment due process analysis developed on the post-Civil War Court. The essay concludes by suggesting that the Court could use the Glucksberg standard, given its implicit respect for state autonomy, to decide not to apply a right to keep and bear arms against the states.
Keywords: Substantive Due Process, Due Process Clause, Fourteenth Amendment, Second Amendment, Right to Keep and Bear Arms, Right to Bear Arms, Bear Arms, Keep and Bear Arms
JEL Classification: K10, K19
Suggested Citation: Suggested Citation