The James Wilson Foundation on Natural Rights and the American Founding

“A Workable Substantive Due Process”: Affiliated Scholar Josh Craddock in the Notre Dame Law Review

In an entry for the Notre Dame Law Review, JWI Affiliated Scholar and Fellowship alumnus Josh Craddock ’19 joins with his former boss, Chief Judge Timothy Tymkovich of the U.S. Court of Appeals for the Tenth Circuit and law clerk Joshua Dos Santos to address a major source of legal confusion: the Supreme Court’s Due Process doctrine, tests, and case law. The law review article traces the history of Due Process back to the Magna Carta and follows it all the way to recent Supreme Court decisions. After analyzing the various tests and theories SCOTUS has used and the lack of a unified framework for understanding due process, Craddock, Tymkovich, and Dos Santos propose a framework for solving the major problems with SCOTUS’s due process doctrine, including a “flowchart” for which tests apply to due process challenges to different branches and an approach to unenumerated rights which emphasizes tradition and established norms over judicial innovation.

Some quotes from the article:

“When litigants come to the courts with a shiny new object in their hands, and claim they found it among the other rights the Court has dug up, how do courts tell if the purported right is genuine? How do courts know whether the litigants indeed assert a right implicit in ordered liberty, or whether they bear a right they should take to their legislatures instead? That subject is perhaps the most contentious of all, so it is not surprising the Supreme Court routinely contradicts itself. Whether we think the Court correct or not in striking down the state laws in each of its blockbuster cases, one thing is certain: the Court has left lower courts little to no guidance in finding “fundamental rights” for themselves.”

“If we may be allowed an exaggerated metaphor, we suggest that the
Supreme Court has acted much like a heedless, cordless Theseus. In case
after case, the Court has stormed into the labyrinth to slay whatever state
oppression it found intolerable. But unlike Theseus, the Court has not had
to find its way out of the labyrinth. The Court has simply cleared its desk of
all remnants of that case and moved on to the next Term. It is the lower
courts that have been left without hope of escape. We must follow the Court to the place where it has slain the latest Minotaur, but we have no cord with which to retrace the Court’s steps.”

The full law review article can be found here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790