Substantive Due Process, the Concept of Law, and the Role of Courts

Posted: 30 Aug 2017

See all articles by Miriam Galston

Miriam Galston

George Washington University - Law School

Date Written: August 28, 2017


Much has been written about the landmark decision Obergefell v. Hodges, in which the Supreme Court held that same-sex couples have a right to marry protected by the Fourteenth Amendment of the Constitution. Most commentators analyze the decision through the prism of constitutional theory, which has the effect of depicting Kennedy and Roberts as polar opposites. The present essay undermines that characterization in two ways.

First, it explores the Justices’ differences in light of the concepts of law elaborated by H.L.A. Hart and Lon Fuller. From the perspective of legal theory, although Kennedy and Roberts reflect distinct approaches to the concept of law, their stances are not totally opposed. This conclusion is strengthened by Hart’s claim that originalist legal theories are animated by policy concerns in the same manner as theories explicitly referencing contemporary social needs. Second, from the perspective of political theory, Kennedy and Roberts reflect a fundamental kinship in their fidelity to the constitutional design of the American legal system because both adopt a view of judicial decisionmaking that is internal to the Constitution’s basic framework, rather than transforming it based upon external sources of law.

These distinctions matter, in practice as well as in theory. There is a tendency to emphasize the degree to which the Supreme Court is polarized, paralleling the political polarization in the country as a whole. Recognizing the commonalities of the two sides provides a broader context often lacking in contemporary debates and suggests that the tendency of each side to dismiss the reasoning of the other as illegitimate is itself illegitimate.

Keywords: Obergefell, Substantive Due Process, Role of Courts, Legal Theory, Political Theory, Lon Fuller, HLA Hart, Separation of Powers

Suggested Citation

Galston, Miriam, Substantive Due Process, the Concept of Law, and the Role of Courts (August 28, 2017). Available at SSRN:

Miriam Galston (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-6781 (Phone)
202-994-9446 (Fax)

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