The Roberts Court and the Future of Substantive Due Process: The Demise of "Split-the-Difference" Jurisprudence?


This article offers a critical perspective on a problematic trend in substantive due process doctrine and suggests a resolution based on the jurisprudence of Chief Justice John G. Roberts, Jr. The subject matter is both timely and un-preempted, and my analysis expands upon ideas I previously developed in two recently published law review articles, Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 UNIVERSITY FLORIDA JOURNAL LAW & PUBLIC POLICY 401 (2005) and Dangerous Predictions: Referencing “Emerging” History and Tradition in Substantive Due Process Jurisprudence in an Era of Blue State Federalism, 15 WIDENER LAW JOURNAL 135 (2005).


Constitutional Law

Date of this Version

September 2006