Title: The Second Death of Substantive Due Process
Abstract:This article addresses the theoretical integrity of the Supreme Court's decision in Bowers v. Hardwick, upholding criminal restrictions on homosexual conduct. It discusses several possible theories of...This article addresses the theoretical integrity of the Supreme Court's decision in Bowers v. Hardwick, upholding criminal restrictions on homosexual conduct. It discusses several possible theories of nonoriginalist constitutional decisionmaking, including theories based on political process considerations, theories based on the enforcement of national societal values, and theories based on principles of political-moral philosophy. The article concludes that under any plausible theory of decisionmaking, the Court's ruling in Bowers is fundamentally inconsistent with its earlier privacy decisions, including especially its decisions protecting the right to abortion.Read More
Publication Year: 1987
Publication Date: 1987-01-01
Language: en
Type: article
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Cited By Count: 12
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