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Three Theories of Substantive Due Process

Daniel O. Conkle

Indiana University Maurer School of Law


85 North Carolina Law Review 63 (2006)
Indiana Legal Studies Research Paper No. 53

Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving national values, is a theory that may be implicit in Lawrence v. Texas and that finds support by analogy in recent Eighth Amendment cases. Under this approach, substantive due process protects values that command widespread contemporary support, as evidenced by legal developments and societal understandings that may change over time.

In this Article, I offer a detailed account of each of these three theories, explaining the decisionmaking methodology that each requires for the identification of unenumerated constitutional rights. The Article also develops and applies three criteria of evaluation, grounded in relevant considerations of constitutional policy: majoritarian self-government, judicial objectivity and competence, and functional justification. I contend that each theory can be defended as a matter of constitutional policy but that, on balance, the most defensible approach is the theory of evolving national values. If my thesis is correct, it promises enhanced coherency and legitimacy for this embattled area of constitutional law.

Number of Pages in PDF File: 87

Keywords: Constitutional Law, Constitutional Theory, Substantive Due Process, Unenumerated Rights, Privacy, Liberty

JEL Classification: K00, K10, K19, K30, K39

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Date posted: June 26, 2006 ; Last revised: June 26, 2013

Suggested Citation

Conkle, Daniel O., Three Theories of Substantive Due Process (2006). 85 North Carolina Law Review 63 (2006); Indiana Legal Studies Research Paper No. 53. Available at SSRN: https://ssrn.com/abstract=911628

Contact Information

Daniel O. Conkle (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
(812) 855-4331 (Phone)
(812) 855-0555 (Fax)
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