A Workable Substantive Due Process

52 Pages Posted: 10 Jul 2020

See all articles by Hon. Timothy M. Tymkovich

Hon. Timothy M. Tymkovich

affiliation not provided to SSRN

Joshua Dos Santos

affiliation not provided to SSRN

Joshua J. Craddock

Harvard University, Law School, Students ; James Wilson Institute for Natural Rights and the American Founding

Date Written: June 18, 2020


This Article has three objectives. First, it provides a conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways—to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. At a certain level of abstraction, this approach can be squared with the original public meaning of the Fourteenth Amendment’s Due Process Clause during ratification.

Second, the Article explains the confusion currently overtaking the circuits. The confusion we refer to is not about nitty-gritty details. It is fundamental. Courts do not know what law to apply to a given plaintiff’s claim under substantive due process doctrine. There are two generic tests floating around—the shocks-the-conscience test and the fundamental-rights test. Courts disagree about when each test applies. Then there are more specific tests tailored to particular contexts, like pretrial detention. No one knows whether these more specific tests apply exclusively, or whether they apply in addition to one or both generic ones. Our goal here is to explain the debate.

Last, the Article proposes two solutions. Looking to the history of Due Process Clause jurisprudence, as well as to the Supreme Court’s stated policy concerns in this area, we propose dividing substantive due process into (1) cases challenging legislative action, (2) cases challenging executive action, and (3) cases challenging judicial action (though those distinctions themselves will require line drawing). In those challenging legislative action, plaintiffs must show the law impermissibly or irrationally burdens a fundamental right. In cases challenging executive action, plaintiffs must show they were deprived of a liberty or property interest in such an egregious fashion that the conduct shocks the conscience of federal judges. The shocks-the-conscience formulation is not to be an empty phrase, though. In each context, courts should specify the factors that make a case conscience shocking. In fact, we argue that this is what the more specific tests have already done. What has been unclear until now is that many of the cases creating more specific tests for substantive due process violations are simply manifestations of the shocks-the-conscience approach. Finally, in cases challenging judicial action, a state court decision will violate substantive due process only if it is an “arbitrary or capricious” abuse of power.

Keywords: Substantive Due Process, Constitutional Law, Due Process of Law, Fourteenth Amendment

Suggested Citation

Tymkovich, Timothy M. and Dos Santos, Joshua and Craddock, Joshua J. and Craddock, Joshua J., A Workable Substantive Due Process (June 18, 2020). Notre Dame Law Review, Vol. 95, No. 5, 2020, Available at SSRN: https://ssrn.com/abstract=3630404

Timothy M. Tymkovich

affiliation not provided to SSRN

Joshua Dos Santos

affiliation not provided to SSRN

Joshua J. Craddock (Contact Author)

Harvard University, Law School, Students ( email )

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James Wilson Institute for Natural Rights and the American Founding

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