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The Second Death of Substantive Due Process

28 Pages Posted: 26 Jun 2006  

Daniel O. Conkle

Indiana University Maurer School of Law


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.

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

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

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:

Daniel O. Conkle (Contact Author)

Indiana University Maurer School of Law ( email )

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