Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

Jeffrey D. Jackson *

Substantive due process is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law, and the main vehicle through which the protections of the Bill of Rights have been incorporated against the states. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. It is followed only in easy cases, and abandoned in hard ones. This practice throws the legitimacy of the entire doctrine into question.

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* Associate Professor of Law, Washburn University School of Law. I would like to thank Bill Rich, Bill Merkel, John Bickers, Linda Elrod, Jim Concannon, Nancy Maxwell, Brad Borden, Michael Schwartz, John Christensen, Rory Bahadur, and Kelly Anders for their helpful comments and input on this article. Thanks also to Washburn University School of Law for its research support, and to Amanda R. Haas, J.D. Candidate, 2011, for her research and input.