Quinn Yeargain (Michigan State University – College of Law) has posted Translating “Substantive Due Process” into State Constitutional Parlance on SSRN. Here is the abstract:
As the U.S. Supreme Court backs away from a robust recognition of substantive due process, many advocates and litigants are turning to state courts to vindicate their rights. Of course, this story can be told with many different constitutional rights over the last fifty years. The “new” judicial federalism movement, which began in the early days of the Burger Court, first encouraged parties to invoke state constitutional rights in the face of an anticipated erosion or pullback. Since then, state constitutions have experienced a resurgence in relevance, and are increasingly cited authorities in state courts.
But unlike the Fourth Amendment, which has a clear analog in all state constitutions, “substantive due process” sits somewhat uncomfortably in state constitutional parlance. For one, the universe of enumerated rights and liberties protected by state constitutions is simply different than in the federal Constitution. Almost all federal rights have clear analogs, some of which go further than the analogous federal protection, and some of which do not go as far. But state constitutions also contain many original rights, like positive rights, which are largely unknown in Anglo-American jurisprudence.
With so many enumerated rights, what should give rise to an unenumerated right in a state constitution? On the one hand, state courts could easily use a Griswold-style “penumbras” approach to identifying new rights, but in some constitutions, with so many rights, what wouldn’t be recognized? Alternatively, state courts might choose to avoid recognizing unenumerated rights where there is a plausible link to an enumerated right, but this might shrink the universe of unenumerated rights to virtually nothing. The role of history and tradition is also unclear, not least given that voters routinely amend state constitutions to add new rights and clarify existing ones.
Accordingly, in this essay, I argue that the differences in enumerated rights between state constitutions and the federal Bill of Rights complicates the importation of “substantive due process” into state constitutional parlance. State courts should exercise caution before relying on federal jurisprudence, which depends on a highly specific calibration of enumerated rights and only one meaningful source of unenumerated rights.
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