What is...

[© tweed]

...substantive due process?

I know that Emsworth says it doesn't exist, but it's been used to justify a few cases, and I'd like to know what the Supreme Court thinks it is.

[A18]

Procedural due process is how you may be deprived of life, liberty, or property.

Substantive due process is essentially why you may be deprived of life, liberty, or property. It's used by the Court to strike down laws it doesn't particularly like.

[Yates]

It is an imaginary thing.

[Dave from Michigan]

yeah see that still doesn't really help me,  maybe because I know nothing about constitutional law

[Emsworth]

The Fifth Amendment provides: "No person shall be... deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment provides: "No State shall ... deprive any person of life, liberty, or property, without due process of law."

Historically, the term "due process" meant "process laid down by the law of the land." The core meaning of the due process clause was that the government cannot take away anyone's life, liberty, or property, except in accordance with the law.

This was the interpretation of the due process clause until Dred Scott v. Sandford. Congress had passed laws outlawing slavery in the territories above the Missouri Compromise Line: any slave who entered such a territory automatically became free. In other words, the slaveowner was being deprived of property. The deprivation was in accordance with the "law of the land," so the due process clause (according to the historical interpretation at least) was not violated.

Chief Justice Roger Taney, however, invented the idea of substantive due process (although he did not use that term). According to him, if a deprivation was fundamentally unfair, then the due process clause was violated, even if the deprivation had been authorized by the legislature. He said: "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law."

Historical interpretation of due process:
- The government takes away your life/liberty/property, in accordance with the law = constitutional.
- The government takes away your life/liberty/property, in violation with the law = unconstitutional.

Modern interpretation of due process ("substantive due process"):
- The government takes away your life/liberty/property, and the reason for taking it away is "fundamentally fair" = constitutional.
- The government takes away your life/liberty/property, and the reason for taking it away is not "fundamentally fair" = unconstitutional.

[© tweed]

The Fifth Amendment provides: "No person shall be... deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment provides: "No State shall ... deprive any person of life, liberty, or property, without due process of law."

Historically, the term "due process" meant "process laid down by the law of the land." The core meaning of the due process clause was that the government cannot take away anyone's life, liberty, or property, except in accordance with the law.

This was the interpretation of the due process clause until Dred Scott v. Sandford. Congress had passed laws outlawing slavery in the territories above the Missouri Compromise Line: any slave who entered such a territory automatically became free. In other words, the slaveowner was being deprived of property. The deprivation was in accordance with the "law of the land," so the due process clause (according to the historical interpretation at least) was not violated.

Chief Justice Roger Taney, however, invented the idea of substantive due process (although he did not use that term). According to him, if a deprivation was fundamentally unfair, then the due process clause was violated, even if the deprivation had been authorized by the legislature. He said: "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law."

Historical interpretation of due process:
- The government takes away your life/liberty/property, in accordance with the law = constitutional.
- The government takes away your life/liberty/property, in violation with the law = unconstitutional.

Modern interpretation of due process ("substantive due process"):
- The government takes away your life/liberty/property, and the reason for taking it away is "fundamentally fair" = constitutional.
- The government takes away your life/liberty/property, and the reason for taking it away is not "fundamentally fair" = unconstitutional.

Thank you, that cleared it up well.

[Dave from Michigan]

whats fundmentally fair mean

[Emsworth]

whats fundmentally fair mean

Whatever the courts say it means.

[ATFFL]

The modern definition also includes that the person understand what is going on, or be represented by someone who does.