Your browser does not fully support modern features. Please upgrade for a smoother experience.
Submitted Successfully!
Thank you for your contribution! You can also upload a video entry or images related to this topic. For video creation, please contact our Academic Video Service.
Version Summary Created by Modification Content Size Created at Operation
1 handwiki Sirius Huang -- 3504 2022-10-24 01:41:26

Video Upload Options

We provide professional Academic Video Service to translate complex research into visually appealing presentations. Would you like to try it?
No, upload directly Yes
Cite
If you have any further questions, please contact Encyclopedia Editorial Office.
HandWiki. Substantive Due Process. Encyclopedia. Available online: https://encyclopedia.pub/entry/31494 (accessed on 29 September 2026).
HandWiki. Substantive Due Process. Encyclopedia. Available at: https://encyclopedia.pub/entry/31494. Accessed September 29, 2026.
HandWiki. "Substantive Due Process" Encyclopedia, https://encyclopedia.pub/entry/31494 (accessed September 29, 2026).
HandWiki. (2022, October 27). Substantive Due Process. In Encyclopedia. https://encyclopedia.pub/entry/31494
HandWiki. "Substantive Due Process." Encyclopedia. Web. 27 October, 2022.
Substantive Due Process
Edit
The content is sourced from: https://handwiki.org/wiki/Social:Substantive_due_process

Substantive due process, in United States constitutional law, is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution. Courts have identified the basis for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law." Substantive due process demarcates the line between the acts that courts hold that are subject to government regulation or legislation and the acts that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law." Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice on why a party is required to appear before a court or other administrative body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings. In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, regardless of whether the processes of enactment and enforcement were actually fair. The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952, it had been mentioned twice in Supreme Court opinions. The term "substantive due process" itself is commonly used in two ways: to identify a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses. Much substantive due process litigation involves legal challenges about unenumerated rights that seek particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty that considers laws that seek to limit that liberty to be unenforceable or limited in scope. Critics of substantive due process decisions usually assert that there is no textual basis in the Constitution for such protection and that such liberties should be left under the purview of the more politically accountable branches of government.

legal challenges fundamental rights government regulation

References

  1. Palko v. Connecticut, 302 U.S. 319 (1937) https://supreme.justia.com/cases/federal/us/302/319/
  2. Hawkins, Bryan (2006). "The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas". Michigan Law Review 105: 409, 412. Archived from the original on 2007-06-15. https://wayback.archive-it.org/all/20070615180252/http://students.law.umich.edu/mlr/archive/105/2/hawkins.pdf. 
  3. Moore v. City of East Cleveland, 431 U.S. 494 (1977), 503 (opinion of Powell J.) https://supreme.justia.com/cases/federal/us/431/494/
  4. Troxel v. Granville, 530 U.S. 57, 65 (2000), (Kennedy, J., dissenting): "Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion." https://supreme.justia.com/cases/federal/us/530/57/#65
  5. New York Bill of Rights (1787) http://www.courts.state.ny.us/history/pdf/Library/New%20York%20Bill%20of%20Rights.pdf
  6. Wynehamer v. New York, 13 N.Y. 378, 418 (N.Y. 1856)
  7. Mugler v. Kansas, 123 U.S. 623 (1887), at 657, 669. https://supreme.justia.com/cases/federal/us/123/623/
  8. Murray v. Hoboken Land, 59 U.S. 272 (1855) https://supreme.justia.com/cases/federal/us/59/272/
  9. Hurtado v. California, 110 U.S. 516 (1884) https://supreme.justia.com/cases/federal/us/110/516/
  10. Dartmouth College v. Woodward, 17 U.S. 518 (1819): "The meaning [of the phrase 'law of the land'] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land." https://supreme.justia.com/cases/federal/us/17/518/
  11. Dartmouth College v. Woodward, 1 N.H. 111, 129 (1817): "[H]ow a privilege can be protected from the operation of a law of the land, by a clause in the [state] constitution, declaring that it shall not be taken away, but by the law of the land, is not very easily understood."
  12. Hurtado v. California, 110 U.S. 516 (1884): "[B]ills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land." https://supreme.justia.com/cases/federal/us/110/516/
  13. Griswold v. Connecticut, 381 U.S. 479 (1965): "I do not mean to imply that the ... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government." https://supreme.justia.com/cases/federal/us/381/479/
  14. Pierce v. Society of Sisters, 268 U.S. 510 (1925) https://supreme.justia.com/cases/federal/us/268/510/
  15. Graham v. Connor, 490 U.S. 386 (1989). Also see United States v. Lanier, 520 U.S. 259 (1997): "Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." https://supreme.justia.com/cases/federal/us/490/386/
  16. Loving v. Virginia, 388 U.S. 1 (1967) https://supreme.justia.com/cases/federal/us/388/1/
  17. Lis Wiehl, "Protecting Marriage — The Next Battle", Fox News. http://www.foxnews.com/story/0,2933,201616,00.html
  18. Skinner v. Oklahoma, 316 U.S. 535 (1942) https://supreme.justia.com/cases/federal/us/316/535/
  19. Meyer v. Nebraska, 262 U.S. 390 (1923). The dissents of Holmes and Sutherland can be found in the companion case of Bartels v. Iowa, 262 U.S. 404 (1923). https://supreme.justia.com/cases/federal/us/262/390/
  20. Rochin v. California, 342 U.S. 165 (1952) https://supreme.justia.com/cases/federal/us/342/165/
  21. O'Connor v. Donaldson, 422 U.S. 563 (1975) https://supreme.justia.com/cases/federal/us/422/563/
  22. BMW v. Gore, 517 U.S. 559 (1996) https://supreme.justia.com/cases/federal/us/517/559/
  23. Cruzan v. Missouri, 497 U.S. 261 (1990) https://supreme.justia.com/cases/federal/us/497/261/
  24. Baldwin v. Missouri, 281 U.S. 586, 595 (1930) https://supreme.justia.com/cases/federal/us/281/586/#595
  25. Chicago v. Morales, 527 U.S. 41 (1999), (Scalia, J., dissenting) https://supreme.justia.com/cases/federal/us/527/41/
  26. U.S. v. Carlton 512 U.S. 26 (1994), (Scalia, J., concurring) https://supreme.justia.com/cases/federal/us/512/26/
  27. Moore v. East Cleveland, 431 U.S. 494, 543 (1977), (White, J., dissenting). https://supreme.justia.com/cases/federal/us/431/494/#543
  28. University of Michigan v. Ewing, 474 U.S. 214 (1985) quoting Moore v. East Cleveland, 431 U.S. 494, 543 (1977) (White, J., dissenting). https://supreme.justia.com/cases/federal/us/474/214/
  29. Robert Cover, Justice Accused 157 (Yale Univ. Press 1975)
  30. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861)
  31. For example, Adarand Constructors v. Peña, 515 U.S. 200 (1995); Sugarman v. Dougall, 413 U.S. 634 (1973); Sherbert v. Verner, 374 U.S. 398 (1963). https://supreme.justia.com/cases/federal/us/515/200/
  32. Examples of cases overturning laws are Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Zobel v. Williams, 457 U.S. 55 (1982); and United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973). https://supreme.justia.com/cases/federal/us/517/620/
  33. Shaman, Jeffrey (2001). Constitutional Interpretation: Illusion and Reality. Greenwood. p. 72. https://books.google.com/books?id=iKYAKSRBQvsC&pg=PA72&dq=%22appearance+in+a+due+process+case%22&hl=en&sa=X&ved=0ahUKEwie4d3XgpTPAhVB4WMKHQMoDZwQ6AEIHjAA#v=onepage&q=%22appearance%20in%20a%20due%20process%20case%22&f=false. 
More
©Text is available under the terms and conditions of the Creative Commons-Attribution ShareAlike (CC BY-SA) license; additional terms may apply. By using this site, you agree to the Terms and Conditions and Privacy Policy.
Upload a video for this entry
Information
Subjects: Law
Contributor MDPI registered users' name will be linked to their SciProfiles pages. To register with us, please refer to https://encyclopedia.pub/register :
HandWiki
View Times: 1.2K
Entry Collection: HandWiki
Revision: 1 time (View History)
Update Date: 27 Oct 2022
Table of Contents
    Notice
    You are not a member of the advisory board for this topic. If you want to update advisory board member profile, please contact office@encyclopedia.pub.
    OK
    Confirm
    Only members of the Encyclopedia advisory board for this topic are allowed to note entries. Would you like to become an advisory board member of the Encyclopedia?
    Yes
    No
    ${ textCharacter }/${ maxCharacter }
    Submit
    Cancel
    There is no comment~
    ${ textCharacter }/${ maxCharacter }
    Submit
    Cancel
    ${ selectedItem.replyTextCharacter }/${ selectedItem.replyMaxCharacter }
    Submit
    Cancel
    Confirm
    Are you sure to Delete?
    Yes No
    Academic Video Service
    Feedback