A WORKABLE SUBSTANTIVE DUE PROCESS.

• Author: Tymkovich, Timothy M.

Introduction 1962 I. A Brief History of "Due Process" up to the Fourteenth Amendment 1965 II. The Many Faces of "Due Process" in the Twentieth Century 1972 A. What Process Is Due, Anyway? 1973 B. Liberty 2.0 1977 C. When Officials Do Heinous Things 1980 D. Other Kinds of Due Process 1982 III. Confusion 1985 A. Which Due Process? 1985 B. Which Substantive Due Process? 1989 C. What Kind of Right? 1993 1. Fundamental or Not? 1993 2. Solitary Silos 1997 3. Distinguishing Genuine Rights 1998 IV. Solutions 1998 A. Creating A Due Process Flowchart 1999 B. Clearly Established Unenumerated Rights 2004 Conclusion 2010 INTRODUCTION

It is now cliche to say that substantive due process is controversial. Yet it remains true that few legal doctrines have been more contentious in the last century or so in American law. It is also true, and not coincidentally, that this areaof law is not just one of the most contentious, but one of the most confused. This Article seeks not to add to the controversy, but to explain the mire, and to propose a path across it.

The controversy stems from the judiciary's interpretation of a brief, but apparently capacious, phrase in the Fourteenth Amendment: "due process of law." (1) Much has been said: the phrase's original meaning is obvious; (2) its meaning is impossibly vague; (3) it merely addressed historical ills; (4) its very text denounces any substantive component; (5) its text connotes a substantive requirementof justice; (6) it incorporates cherished limits on the federal government and applies them to states; (7) it incorporates nothing. (8)

This back and forth has surely had its benefits; it has caused us to think more deeply about the role of the courts in our constitutional republic. And it has caused us to reevaluate our belief in democracy--to reaffirm our belief in its virtues and necessity.

Butone thing, we can all agree, has not been positive: the resulting confusion about how courts are supposed to evaluate substantive due process claims. Battles often blur boundary lines. This battle is no different. No sooner is one line drawn in the sand when its opponents' counteroffensive wipes it out--or, worst of all, wipes it out incompletely. To put things plainly, the controversial nature of substantive due process doctrine has made the SupremeCourt's due process caselaw unclear. A case might establish a principle, but soon afterward that principle will be disavowed, nodded to without compliance,or simply ignored. The Court's caselaw is, therefore, contradictory, imprecise, and sometimes impossible to understand. The inferior courts are left surveying the battlefield with little to guide them.

Theproblem goes deeper, however. Perhaps more problematically, different kinds of cases bearing the banner of substantive due process have developedseparately, with no semblance of connection or doctrinal equivalence. In part, this stems from imprecise language. But it also has much to do with courts' natural tendency to resolve the cases before them without identifying the relationship between the case at hand and the wider world of substantive due process. The results are siloed strands of substantive due process caselaw, along with a hodgepodge of warring quotations and maxims with uncertain authority.

All this leaves courts adrift. It is not just that substantive due process doctrine is messy. It is that judges often don't know what to do with a newly asserted claim of substantive due process. Should they use one of the existing frameworks for substantive due process? More than one? If just one, which? Or maybe they should come up with a new test, as many cases seem to have done? There are no clear answers to these questions.

Courts are not likely to get the answers from litigants. In substantive due process cases, plaintiffs often allege they've been wronged grievously. At this, judges raise their eyebrows: "That sounds pretty bad," they think, "but what's the law here?" The briefs don't help much because plaintiffs often brief all sorts of different theories--the kitchen sink approach: "My case shocks the conscience, but if that test doesn't apply I have a fundamental right that's beeninfringed, and if that test doesn't work out I also fit within this subspecies of substantive due process, and if I don't win that way," and so on. And if the plaintiffs choose only one theory, the defendants are very likely to argue thatthe plaintiffs' chosen approach to substantive due process is not the correct one. On and on it goes, with courts unsure what to do because caselaw points every which way.

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, thisapproach 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. Courtsdo 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-consciencetest and the fundamental-rights test. Courts disagree aboutwhen 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). In those challenging legislative action, plaintiffsmust show the law impermissibly or irrationally burdens a fundamental right. In cases challenging executive action, plaintiffs must show they were deprived of a liberty or property interest in such an egregious fashion that the conduct shocks the conscience of federal judges. The shocks-the-conscience formulationis not to be an empty phrase, though. In each context, courts should specify the factors that make a case conscience shocking. In fact, we argue that this is what the more specific tests have already done. What has been unclear until now is that many of the cases creating more specific tests for substantive due process violations are simply manifestations of the shocks-the-conscience approach. Finally, in cases challenging judicial action, a state court decision will violate substantive due process only if it is an "arbitrary or capricious" abuse of power.

Weseparately propose repackaging and relaunching the Glucksberg "fundamental rights"test. Rather than defining a right in the abstract and balancing interests, we propose asking whether a law clearly violates a settled tradition or norm.

To explain all this, though, we must begin at the beginning.

1. A BRIEF HISTORY OF "DUE PROCESS" UP TO THE FOURTEENTH AMENDMENT

   If you are lost, it is often best to retrace your steps. Before turning to the ongoingsubstantive due process confusion, then, a brief history of due process doctrine is in order. As routinely told, the history of "due process" as a concept begins in England. Chapter 29 of Magna Carta provided that "[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed... except by the lawful judgment of his peers [or/and] by the law of the land." (9) In other words, when it came to punishment, no regal whims were allowed: the punishments listed could not be imposed without a jury, and to effect them the Crown had to comply with the "law of the land." The law of the land, at this time, had two specific components: the common law--accumulatedby careful reasoning from time immemorial and dependent on specific, procedural writs--and the acts of Parliament. (10)

   Eventually, Magna Carta's guarantee of the Crown's compliance with the law of the land came to be known as "due process of law." That phrase first appears in a 1354 statute that did not mention Magna Carta, but by 1642 Sir Edward Coke had concluded that "due process of law" was just another way of stating that well-known Magna Carta guarantee. (11)

   Before continuing down the historical trail, it is worth pausing to call attention to this particular meaning of the words "due process of law." Underthis view, all "due process" guarantees is that the government will follow thestrictures of existing law before depriving one of life, liberty, or property. It does not necessarily mean the government must follow fair procedures before doing so, only that the government must follow whatever proceduresare called for by law. (There were perhaps one or two procedures even Coke believed the government could not remove, but by and large"due process" simply meant compliance with law.) (12) In short, no arbitrary executive or judicial deprivations. We call this the commonsense reading.

   Skipping to the American Founding, all agree the Fifth Amendment's Due Process Clause was supposed to incorporate this Magna Carta guarantee of compliance with the law of the land. But, perhaps unsurprisingly, what Americans in 1789 thought of as "due process of law" may not have been...