Gans and Kendall examine how 2nd Amendment gun-rights cases give originalists problems. The easy way to incorporate the 2nd Amendment is through substantive due process. But many originalists reject substantive due process. While the authors acknowledge that the Privileges or Immunities clause historically would accomplish the goals of...
Due Process, the 5th Amendment, and the 14th Amendment
Due process, a vitally important right of the American people protected by the Fifth and Fourteenth Amendments, has its roots in the concept of rule of law. Initially, this meant that everyone should be subject to a fair and impartial legal system, sanctions and court.
With the Magna Carta (1215 A.D.), an understanding of due process emerged according to which any deprivation of the rights to life, liberty and property must follow the proper judicial procedures, including, but not limited to: the right to a trial by a jury of one's peers, the right to know the nature of the charges one faces, the right to confront one's accusers, the right to a proper defense, and the right to be justly compensated if the government takes one's property for public purposes. Scholars have termed this interpretation procedural due process, and although there is some debate, the Founders seemed to have viewed it thus when they designed the Constitution.
During the 19th century, however, beginning with Justice Field's dissent in the Slaughterhouse Cases, the Supreme Court developed a notion of substantive due process. Under this theory, individuals possess certain fundamental rights which cannot be revoked even if due process was followed--unless the government successfully proves a "rational basis" for doing so. During the so-called Lochner era, usually said to have started with Lochner v. New York in 1905 and ended with West Coast Hotel Co. v. Parrish in 1937, substantive due process was utilized to protect economic liberties. Since then, the Court has focused substantive due process reasoning more on guarding civil liberties, such as reproduction, marriage, religion, education and sexuality.
In addition to the theoretical level of the debate, many current policy questions turn on due process considerations. Should immigrants or alleged terrorists be denied their procedural due process rights? Do gay people have a substantive due process right to marry? Is the individual mandate to buy health insurance established by Obamacare a violation of due process?
These are, admittedly, complex issues. At bottom though, the meaning of due process determines how well an individual's liberty is protected from arbitrary and unjust violation by government force. As the sources compiled in this topic show, due process jurisprudence and application have not always been based on a presumption of liberty.
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