In Defense of Substantive Due Process
Introduction Originalism has a branding and substance problem.[1] If originalism is what it purports to be—impartial and value-free enforcement of the Founders’ intention and “the only approach to text that is compatible with democracy”[2]—more Americans would have faith in the Supreme Court and the constitutional validity of its decisions.[3] In The Originalism Trap, Madiba Dennie […]The postIn Defense of Substantive Due Processappeared first onTexas Law Review.
Introduction Originalism has a branding and substance problem.[1] If originalism is what it purports to be—impartial and value-free enforcement of the Founders’ intention and “the only approach to text that is compatible with democracy”[2]—more Americans would have faith in the Supreme Court and the constitutional validity of its decisions.[3] In The Originalism Trap, Madiba Dennie […]The postIn Defense of Substantive Due Processappeared first onTexas Law Review.
Executive Summary
This article presents a compelling defense of substantive due process, a doctrine that has been increasingly under fire from originalist scholars. The author argues that substantive due process, which allows for judicial review of laws that are deemed to infringe upon fundamental rights, is a necessary safeguard against tyranny and oppression. The article critiques the limitations of originalism, which the author argues is often used as a rhetorical device to justify decisions that are actually based on policy preferences. The author contends that substantive due process, while imperfect, provides a framework for protecting individual rights and promoting the rule of law. The article concludes by arguing that substantive due process remains a vital component of constitutional law, despite the challenges it faces from originalist scholars.
Key Points
- ▸ The limitations of originalism as a interpretive approach
- ▸ The importance of substantive due process in protecting individual rights
- ▸ The need for a balanced approach to constitutional interpretation
Merits
Strength
The article presents a clear and compelling critique of originalism, highlighting its limitations and flaws as a interpretive approach. The author's arguments are well-reasoned and well-supported, making a strong case for the continued relevance of substantive due process.
Demerits
Limitation
The article may be seen as overly critical of originalism, which may be perceived as an unfair characterization. Additionally, the author's defense of substantive due process may be seen as too broad, failing to acknowledge the complexities and nuances of this doctrine.
Expert Commentary
While the article presents a compelling defense of substantive due process, it is worth noting that the author's critique of originalism may be seen as overly broad. However, the article's central argument – that substantive due process remains a vital component of constitutional law – is well-supported and well-reasoned. As the debate between originalist and living constitution approaches to constitutional interpretation continues, this article provides a valuable contribution to the conversation. The article's emphasis on the need for a balanced approach to constitutional interpretation is particularly noteworthy, as it highlights the importance of considering multiple perspectives in the interpretation of constitutional text.
Recommendations
- ✓ Recommendation 1: Further research into the complexities and nuances of substantive due process to better understand its limitations and opportunities.
- ✓ Recommendation 2: A more nuanced and balanced approach to constitutional interpretation that takes into account both originalist and living constitution perspectives.
