Substantive Due Process – the doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective, and the freedom from arbitrary or capricious in making, interpreting, or enforcing the law

     This page is continued from Intro to Law >>  Legal Precepts Adopted into U.S. Law (from Europe) through the Constitution >> Roman “Civil Republic” State Law >> State Law Consists of Two Parts >> Adjective Law >> Procedure >> Process >> Due Process of Law >> Various Forms of Due Process:

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substantive due process:
(1933)

1. The doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective. [1]

1. Freedom from arbitrary action coupled with the equal operation of the laws.  16 Am J2d Const L § 550. [2]

1. A right grounded in the Fifth Amendment and the Fourteenth Amendments.  The very essence of those amendments, as they relate to substantive due process, is the concept that the government may not act arbitrarily or capriciously in making, interpreting, or enforcing the law.  A person is entitled to both substantive due process and procedural due process. [3]

     Excerpt from Christopher Wolfe’s The Rise Of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (1986):

     “The doctrine of substantive due process is so called because the inquiry focuses not on the legal procedure by which one is convicted and punished (deprived of life, liberty, or property) for violating the law, but rather on the law itself and whether a person may legitimately be required to obey such a law.  One typical formulation of this doctrine is that it forbids government to deprive a person of life, liberty, or property ‘arbitrarily,’ that is, without sufficient grounds to do so.  The origins of substantive due process are embedded in two phenomena of the traditional era.  First, there was a strand of judicial review — based not on the Constitution, but on principles of natural justice; this . . . was a minority position and a deviation from the main principles of the era.  Second, there were a number of cases, primarily in state courts, that were rooted in an analysis of the intrinsic requirements of ‘law.’   These two phenomena were united especially in their orientation toward property rights.[4]

References:

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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Christopher Wolfe, The Rise Of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law 145 (1986).

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