The Meming of Substantive Due Process

Constitutional Commentary, Forthcoming

Columbia Public Law Research Paper No. 14-498

37 Pages Posted: 18 Jan 2016 Last revised: 25 Jan 2016

See all articles by Jamal Greene

Jamal Greene

Columbia University - Law School

Date Written: January 17, 2016

Abstract

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word “due” cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process — whether judicial, administrative, or legislative — that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a “precedent,” in the nature of other legal propositions within a common law system. This Essay explores the intellectual and social history of the substantive-due-process-as-contradiction meme and argues that it is often appropriate for judges to rely upon such memes even if their underlying claims lack analytic integrity. Judicial opinion writing in constitutional cases is best understood as an act of translation between the decisional process of the judge and the representations necessary to validate the decision within the constitutional culture.

Suggested Citation

Greene, Jamal, The Meming of Substantive Due Process (January 17, 2016). Constitutional Commentary, Forthcoming; Columbia Public Law Research Paper No. 14-498. Available at SSRN: https://ssrn.com/abstract=2717255

Jamal Greene (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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