Explaining 'what process is due' in 'substantive due process'

[Jennifer Hendricks]

I'm working on piece that discusses Stanley v. Illinois as a
cross-over between procedural and substantive due process in the way you
describe.  The court framed the case as presenting a procedural due
process question: to what process was Stanley entitled before the State
could deny him parental rights to his children?  The court held he was
entitled to a hearing, but also specified that the standard at the
hearing would be whether he was unfit (not, say, whether granting him
custody would be in the children's best interests).  It's the last
bit that makes it substantive and recognizes a substantive due process
right for unwed fathers.  So at least in some situations, the "process
that is due" before a person can be deprived of "substantive due
process rights" is less than a constitutional amendment.

Jennifer Hendricks

Jennifer S. Hendricks
Associate Professor
University of Tennessee College of Law
1505 W. Cumberland Ave.
Knoxville TN 37996-1810
865-974-6818
hendricks at law.utk.edu

>>> "Tepker, Rick" <rtepker at ou.edu> 9/29/2005 9:27 AM >>>
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?

 

 

______________________________

 

Rick Tepker

Calvert Chair of Law and Liberty

  & Professor of Law

University of Oklahoma

Norman, Oklahoma 73019

405.325.4832

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