Academic

Jackson on Substantive Due Process & the Ninth Amendment

By Lawrence Solum

Jeffrey D. Jackson (Washburn University - School of Law) has posted Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment (University of Richmond Law Review, Vol. 45, No. 2, p. 491, 2011) on SSRN. Here is the abstract:

Substantive due process as currently practiced is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. While the Supreme Court professes to follow the tiered scrutiny doctrine set out in cases such as Washington v. Glucksberg, where fundamental rights are subjected to strict scrutiny and all other claimed liberty interests to a rational basis test, this formulation is illusory. Because a finding that a right is fundamental almost always leads to the conclusion that the law infringing it is invalid, courts are understandably cautious in recognizing new rights. However, the only alternative available is the rational basis test. This test, under its current interpretation, is too weak to protect important rights. By allowing any plausible reason for the legislation to suffice, whether or not it was a true reason for the legislation, and by asking only whether lawmakers could have thought that it was reasonably related to the subject it purported to advance, the current doctrine makes the rational basis test the equivalent to no test at all. This leads the Court to abandon the Glucksberg test in hard cases, thus diminishing the legitimacy of the entire doctrine. The legitimacy problems with substantive due process as it is currently practiced have prompted many legal scholars to urge the abandonment of due process altogether in favor of other mechanisms of protecting unenumerated rights. As well-thought out as these proposed solutions are, however, they all share a fundamental problem as a practical manner: they would all require a substantial overhaul of the entire body of case law that has evolved around the due process doctrine in the last century and a half. Because of the practical problems involved with such an overhaul, these solutions are unlikely to be adopted. There is, however, another way in which substantive due process can be revitalized to better protect rights and provide a more consistent doctrine. Further, this revitalization can be achieved without significantly changing the doctrine itself. The answer lies in strengthening the rational basis test. The article examines the development of substantive due process from its English roots to its practice today. It concludes that, while substantive due process is currently broken, it can be revived through strengthening the rational basis test to allow courts to inquire into the purpose behind the legislation and to look at the link between the ends and means. Strengthening the rational basis test will provide a more consistent test and allow for better protection of important rights.

Full post as published by Legal Theory Blog on February 18, 2011 (boomark / email).