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Duke University School of Law




This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial constitutional issue. This decision should be resisted because it tends to keep power from the powerless and preserves political power in the hands of the few.

The glaring failures of the DeShaney opinion invite attack. Formalistic and unambitious in its examination of history, the opinion reaches out to decide the broadest constitutional issue presented.4 Most seriously, on the level of judicial craftsmanship, the opinion fails to engage in an in-depth discussion of the controversial constitutionals and ethical issues.6 But resolved to resist the temptation of attacking the easy targets, I focus instead on substantive objections to the theory that underlies DeShaney.

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