Explaining 'what process is due' in 'substantive due process'
msellers at ubalt.edu
Thu Sep 29 07:13:21 PDT 2005
The drafters of our Constitution understood that some liberties are so fundamental that no there is in fact no process that would be "due proces" in restricting them. The common-law tradition, as it was understood by the framers, entrusted the protection of these liberties to judges, who should serve "during good behavior". The people of the states could, by constitutional amendment, correct judicial precedents that misconstrue these rights, but doing so even in this way would undermine the conception of liberty under law as it was understood by eighteenth- and nineteenth-century republicans.
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Tepker, Rick
Sent: Thursday, September 29, 2005 9:28 AM
To: conlawprof at lists.ucla.edu
Subject: Explaining 'what process is due' in 'substantive due process'
After trying many explanations of 'substantive due process,' with appropriate reference to John Hart Ely's 'reddish pastel green' and evasion of the Slaughterhouse cases, I've tried to focus on a question: "What process is due in a substantive due process case?"
There seems to be no doubt that such cases are interpreting the word 'liberty' in the Due Process Clause. If so, doesn't the principle boil down to this?: Government cannot deprive an individual of certain unenumerated rights of fundamental importance by ordinary political process and ordinary enforcement procedure. Before government can adopt policies of a substance that intrudes on the fundamental rights, it must also - first - amend the Constitution (or secure a revised interpretation from the justices).
Any reactions to the adequacy or inadequacy of this explanation?
Calvert Chair of Law and Liberty
& Professor of Law
University of Oklahoma
Norman, Oklahoma 73019
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof