Application of Philosophy in Substantive Due Process Analysis Focusing on Washington v. Glucksberg

Substantive due process is widely regarded as the most convoluted and controversial legal concept. For years, the court has struggled to interpret and apply value-based terms in the Fourteenth Amendment, as these terms contain deeper significance beyond the words. Additionally, the court must balance expanding the law to enshrine the abstract values of substantive due process and limiting its interpretation so that it is not “creating law” or imposing its personal beliefs on its decision. This push and pull of defending values and maintaining legitimacy has created significant issues in substantive due process analysis and is the background and basis of my argument. In this paper, I will argue that substantive due process analysis should use the national ethos method of constitutional interpretation and should be informed by the works of the philosophers who influenced the text of the 14th Amendment. To evaluate this abstract argument, I will use the example of Physician-Assisted Suicide as a substantive due process issue. First, I will provide an overview of the three primary methods of constitutional interpretation relevant to this paper. Next, I will emphasize the importance of philosophy in the usage of the national ethos interpretation method. Then, I will briefly analyze the historical evolution of substantive due process. After, I will deep dive into Washington v. Glucksberg as the foundation of the “history and tradition” test for substantive due process. Finally, I will apply the national ethos method to the example of physician-assisted suicide using Locke’s philosophy.