A Workable Substantive Due Process

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process.

In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. At a certain level of abstraction, this approach can be squared with the original public meaning of the Fourteenth Amendment’s Due Process Clause during ratification. Second, we will explain the confusion currently overtaking the circuits. The confusion we refer to is not about nitty-gritty details.

It is fundamental. Courts do not know what law to apply to a given plaintiff’s claim under substantive due process doctrine. There are two generic tests floating around— the shocks-the-conscience test and the fundamental-rights test. Courts disagree about when each test applies.

Then there are more specific tests tailored to particular contexts, like pretrial detention. No one knows whether these more specific tests apply exclusively, or whether they apply in addition to one or both generic ones. Our goal here is to explain the debate. Last, we will propose two solutions.

Looking to the history of Due Process Clause jurisprudence, as well as to the Supreme Court’s stated policy concerns in this area, we propose dividing substantive due process into (1) cases challenging legislative action, (2) cases challenging executive action, and (3) cases challenging judicial action (though those distinctions themselves will require line drawing).