Reviving Hugo Black? The Court's 'Jot for Jot' Account of Substantive Due Process

36 Pages Posted: 25 Mar 2015

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Date Written: 1998

Abstract

In Graham v. Connor, the United States Supreme Court held that the Fourth Amendment effectively preempts any substantive due process claims that law enforcement officers used excessive force in the course of an arrest. Graham's disarmingly simple rationale was that an explicit textual provision trumps a more general constitutional provision. This article argues that this rationale, as subsequently invoked by the Supreme Court and expansively applied by the lower courts in First, Fourth, Fifth, and Eighth Amendment cases, may ultimately have a pervasive impact on substantive due process. At the very least, the logic of Graham requires that substantive due process be confined to its current doctrinal limits. Carried to its furthest extreme, Graham requires overruling the Court's substantive due process "unenumerated rights" caselaw altogether. The author argues that Graham is an analytical and doctrinal oddity, inconsistent with well-accepted and regularly enforced principles of constitutional interpretation, that should be overruled rather than used to revive Hugo Black's "jot for jot" account of substantive due process.

Keywords: Graham, Fourth Amendment, substantive due process, excessive force, arrest, Hugo Black, unenumerated rights

Suggested Citation

Massaro, Toni Marie, Reviving Hugo Black? The Court's 'Jot for Jot' Account of Substantive Due Process (1998). 73 New York University Law Review 1086 (1998), Arizona Legal Studies Discussion Paper, Available at SSRN: https://ssrn.com/abstract=2584702

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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