Constitutional Conscience

95 Pages Posted: 29 Sep 2002

See all articles by Eric L. Muller

Eric L. Muller

University of North Carolina School of Law

Date Written: September 2002


Eight years before the Supreme Court's 1952 Rochin decision, which announced the "shocks the conscience" test for a substantive due process violation in criminal cases, a federal district judge applied that test to dismiss criminal charges against twenty-six Japanese American internees who had been charged with resisting the military draft during World War II. It was shocking to the conscience, the judge held, for the government to incarcerate Japanese Americans on account of their race, draft them into the army from within their internment camps, and then prosecute them when they resisted.

That decision, while morally courageous, was open to all of the criticism (for its subjectivity) that has always dogged the "shocks the conscience" test and its criminal-law cousin, the "outrageous government conduct" defense. From the moment of its endorsement by the Supreme Court in Rochin, the "shocks the conscience" test has been pilloried as an unadorned, unexplained, and lawless judicial veto of executive conduct.

This article uses the case of the Japanese American draft resisters to explore the question of whether it is possible to construct a substantive due process inquiry in criminal cases that is better grounded in mainstream constitutional methodology than the current, much-maligned doctrine. The article develops the notion of shock to a "constitutional conscience", as opposed to a merely visceral conscience, and looks to accepted sources of constitutional meaning (historical practice, tradition, and the meaning of related constitutional text) to explain what was constitutionally conscience-shocking about the government's treatment of the Japanese American draft resisters of World War II.

Keywords: Constitutional Law, Japanese Internment, Criminal Law, Criminal Procedure, Constitutional Interpretation, Constitutional History

Suggested Citation

Muller, Eric L., Constitutional Conscience (September 2002). U of No. Carolina, Public Law Research Paper No. 02-5. Available at SSRN: or

Eric L. Muller (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7067 (Phone)
919-962-1277 (Fax)

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