Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2006 Three Theories of Substantive Due Process Daniel O. Conkle Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Constitutional Law Commons Recommended Citation Conkle, Daniel O., "Three Theories of Substantive Due Process" (2006). Articles by Maurer Faculty. 166. https://www.repository.law.indiana.edu/facpub/166 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. THREE THEORIES OF SUBSTANTIVE DUE PROCESS* DANIEL 0. CONKLE"° 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 constitutionalprotection 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 constitutionalpolicy: 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 approachis the theory of evolving national values. * Copyright © 2006 by Daniel 0. Conkle. ** Robert H. McKinney Professor of Law, Nelson Poynter Scholar, and Adjunct Professor of Religious Studies, Indiana University Bloomington. I am grateful to Judge Michael W. McConnell and to Professors Frederick Mark Gedicks, Dawn E. Johnsen, Ira C. Lupu, Ajay K. Mehrotra, Michael J. Perry, and Richard B. Saphire for their comments on earlier versions of this Article. I also received helpful input-and spirited challenges- during faculty workshops at the Indiana University School of Law-Bloomington, the J. Reuben Clark Law School of Brigham Young University, the University of Dayton School of Law, and the Salmon P. Chase College of Law of Northern Kentucky University. NORTH CAROLINA LAW REVIEW [Vol. 85 INTRO D U CTIO N ......................................................................................... 64 I. MODERN SUBSTANTIVE DUE PROCESS: UNENUMERATED RIGHTS OF "PRIVACY" AND "LIBERTY" .........................69 II. GENERAL CRITERIA OF EVALUATION .................................. 76 III. THE THEORIES OF HISTORICAL TRADITION AND REASONED JUDGMENT ............................................................ 82 A. The Theory of HistoricalTradition .................................. 83 1. Bowers, Glucksberg, and Their Jurisprudential A ntecedents ................................................................. 83 2. Evaluating the Theory of Historical Tradition .......... 90 B. The Theory of Reasoned Judgment .................................. 98 1. Casey and Its Jurisprudential Antecedents ................ 98 2. Evaluating the Theory of Reasoned Judgment ............ 106 IV. LAWRENCE V. TEXAS AND THE COURT'S COMPETING THEORIES OF SUBSTANTIVE DUE PROCESS ............................. 115 A. Lawrence, Historical Tradition, and Reasoned Judgment ................................................................................ 117 B. Lawrence and Evolving Values ............................................ 121 V. TOWARD A THEORY OF EVOLVING NATIONAL VALUES ..... 123 A. Justice Souter's "Evolving Values" Refinement of the Theory of Reasoned Judgment............................................. 125 B. A Distinctive Theory of Evolving National Values ............ 128 C. Evaluating the Theory of Evolving National Values .......... 133 CO N CLU SIO N ........................................................................................... 145 INTRODUCTION Nothing in constitutional law is more controversial than substantive due process. Not only does the Supreme Court invoke this doctrine to resolve deeply contested questions of political morality, but the Court has yet to agree upon a theory of decisionmaking that can explain and justify its rulings. Each of the Court's rulings is important in its own right, and each warrants academic commentary on that basis. Lawrence v. Texas,' for example, is a landmark decision for sexual liberty and the advancement of gay rights. Yet as the Court's substantive due process decisionmaking continues apace, its overall doctrine demands more comprehensive evaluation, and this Article proceeds at that level. Using Lawrence as a point of departure, I will offer a close reading and a theoretical examination of the Court's contemporary doctrine. I also will suggest that Lawrence, viewed from this broader 1. 539 U.S. 558 (2003). 2006] SUBSTANTIVE DUE PROCESS perspective, not only reveals a state of profound doctrinal confusion but also includes untapped insights-or at least unexplored hints and suggestions-that might inform a substantial reconceptualization and reformation of substantive due process. If my thesis is correct, it promises enhanced coherency and legitimacy for this embattled area of constitutional law. In its historic decision in Lawrence, the Supreme Court declared that the Due Process Clause of the Fourteenth Amendment2 protects the substantive "liberty" of consenting adults to engage in homosexual conduct.' In so doing, the Court overruled Bowers v. Hardwick,4 which had derided such a claim as "facetious."5 Academic commentators had been harshly critical of Bowers.6 I myself, in the wake of Bowers and in light of the Court's continuing support for Roe v. Wade,7 once argued that Bowers represented "the death of substantive due process as a principled doctrine of law." 8 One might suppose that by overruling Bowers, the Court has now put matters aright. Indeed, Lawrence has been praised as a victory for gay rights and, more broadly, a victory for liberty.9 That it is, but Lawrence 2. U.S. CONST. amend. XIV, § 1. 3. Lawrence, 539 U.S. at 578. 4. 478 U.S. 186 (1986); see Lawrence, 539 U.S. at 578. 5. See Bowers, 478 U.S. at 194. 6. For a sampling of this critical commentary, see Anne B. Goldstein, History, Homosexuality, and Political Values: Searchingfor the Hidden Determinants of Bowers v. Hardwick, 97 YALE L.J. 1073 (1988); David A.J. Richards, Constitutional Legitimacy and Constitutional Privacy, 61 N.Y.U. L. REV. 800 (1986); Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989); Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431 (1992). For additional citations, see Earl M. Maltz, The Court, the Academy, and the Constitution: A Comment on Bowers v. Hardwick and Its Critics, 1989 BYU L. REV. 59, 60-61 n.4. 7. 410 U.S. 113 (1973); see Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 759 (1986) ("Again today, we reaffirm the general principles laid down in Roe .... ). 8. Daniel 0. Conkle, The Second Death of Substantive Due Process, 62 IND. L.J. 215, 242 (1987). 9. See, e.g., Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-03 CATO SUP. CT. REV. 21 (applauding Lawrence on the basis of a broadly libertarian interpretation of the Court's decision); Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103, 1137 (2004) ("Whatever its shortcomings, for lesbians and gay men, Lawrence is a breakthrough."); Laurence H. Tribe, Lawrence v. Texas: The "FundamentalRight" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1895, 1899 (2004) (suggesting that "Lawrence may well be remembered as the Brown v. Board of gay and lesbian America" and arguing, more broadly, that it is a "pathmarking decision" that "significantly alter[s] the historical trajectory of substantive due process and thus of liberty"). The Court's decision has attracted a range of commentary, mostly but not entirely favorable. See, e.g., Colloquium, The Boundaries of Liberty After Lawrence v. Texas, 102 MICH. L. REV. 1447 (2004); Symposium, Equality, Privacy, and Lesbian and Gay Rights After Lawrence v. Texas, 65 OHIO ST. L.J. 1057 (2004); Symposium, Gay NORTH CAROLINA LAW REVIEW [Vol. 85 does not stand alone, and, from a broader doctrinal perspective, the ruling highlights the conceptual chaos of modern substantive due process. The Supreme Court's welter of decisions and its confusing doctrinal standards have emboldened the Court's critics, who view the "doctrine"