Citations (2)



The Second Death of Substantive Due Process

Daniel O. Conkle

Indiana University Maurer School of Law

Indiana Law Journal, Vol. 62, p. 215, 1987
Indiana Legal Studies Research Paper

This article addresses the theoretical integrity of the Supreme Court's decision in Bowers v. Hardwick, upholding criminal restrictions on homosexual conduct. It discusses several possible theories of nonoriginalist constitutional decisionmaking, including theories based on political process considerations, theories based on the enforcement of national societal values, and theories based on principles of political-moral philosophy. The article concludes that under any plausible theory of decisionmaking, the Court's ruling in Bowers is fundamentally inconsistent with its earlier "privacy" decisions, including especially its decisions protecting the right to abortion.

Number of Pages in PDF File: 28

Keywords: Constitutional Law, Constitutional Theory, Substantive Due Process, Sexuality

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

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Date posted: June 26, 2006  

Suggested Citation

Conkle, Daniel O., The Second Death of Substantive Due Process. Indiana Law Journal, Vol. 62, p. 215, 1987; Indiana Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=911650

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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