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Nonetheless the due process clause has grown significantly in the substantive field.  One of the first cases in the area held that a black man convicted by a jury empanelled with discriminatory screening of black jurors was denied due process of law, since he lost the substantive right to an unbiased and race-neutral jury.<ref>Strauder v. West Virginia, 100 U.S. 303.</ref>  The true explosion of substantive due process, though, came in the 1900s.  In a companion case to Brown, the Supreme Court held that segregation was a deprivation of a substantive right without due process of the law.<ref>Bolling v. Sharpe, 347 U.S. 497</ref>  Although much debated, as well, the landmark case [[Roe v. Wade]] enshrined substantive due process firmly in the landscape of American jurisprudence, holding that the right to choose is a substantive right which cannot be removed without rational governmental basis.  The Court held that, since the [[fetus]] was not alive at the time of Roe’s abortion, there was no rational basis for governmental intervention, and the substantive right is therefore supreme.<ref>Roe v. Wade, 410 U.S. 113</ref>  This expansion of substantive due process has been much criticized, especially by conservatives such as Justice [[Antonin Scalia]] and Supreme Court nominee [[Robert Bork]].<ref>Brest & Levinson, supra, 930</ref>  The idea of substantive due process was especially strongly asserted in the 2003 case [[Lawrence v. Texas]], which held that [[sodomy]] is a substantive right that cannot be abridged without rational basis, biblical objections and moral incentives not qualifying therein as rational basis.<ref>Lawrence v. Texas, 539 U.S. 558</ref>  Justice Scalia sharply dissented, arguing that this expansion of substantive due process would be “the dicta that ate the rule of law.”   

Nonetheless the due process clause has grown significantly in the substantive field.  One of the first cases in the area held that a black man convicted by a jury empanelled with discriminatory screening of black jurors was denied due process of law, since he lost the substantive right to an unbiased and race-neutral jury.<ref>Strauder v. West Virginia, 100 U.S. 303.</ref>  The true explosion of substantive due process, though, came in the 1900s.  In a companion case to Brown, the Supreme Court held that segregation was a deprivation of a substantive right without due process of the law.<ref>Bolling v. Sharpe, 347 U.S. 497</ref>  Although much debated, as well, the landmark case [[Roe v. Wade]] enshrined substantive due process firmly in the landscape of American jurisprudence, holding that the right to choose is a substantive right which cannot be removed without rational governmental basis.  The Court held that, since the [[fetus]] was not alive at the time of Roe’s abortion, there was no rational basis for governmental intervention, and the substantive right is therefore supreme.<ref>Roe v. Wade, 410 U.S. 113</ref>  This expansion of substantive due process has been much criticized, especially by conservatives such as Justice [[Antonin Scalia]] and Supreme Court nominee [[Robert Bork]].<ref>Brest & Levinson, supra, 930</ref>  The idea of substantive due process was especially strongly asserted in the 2003 case [[Lawrence v. Texas]], which held that [[sodomy]] is a substantive right that cannot be abridged without rational basis, biblical objections and moral incentives not qualifying therein as rational basis.<ref>Lawrence v. Texas, 539 U.S. 558</ref>  Justice Scalia sharply dissented, arguing that this expansion of substantive due process would be “the dicta that ate the rule of law.”   

Despite this objection, substantive due process and its expansion still enjoys a majority on the Supreme Court, certainly at least through the retirement of [[Chief Justice William Rehnquist]].  The framer’s intent on the expansion of the Fourteenth Amendment to this level can, of course, be debated, and it will be.  Arguments mentioned above certainly apply here – on the one hand no conservative Democrat in the Reconstruction Congress would have intended the Amendment to go that far.  Certainly no Radical Republican foresaw this expansion, either.  However, it can be argued that the legislative intent of the Amendment was especially to grow with the times, which it certainly has done.

Despite this objection, substantive due process and its expansion still enjoys a majority on the Supreme Court, certainly at least through the retirement of Chief Justice [[William Rehnquist]].  The framer’s intent on the expansion of the Fourteenth Amendment to this level can, of course, be debated, and it will be.  Arguments mentioned above certainly apply here – on the one hand no conservative Democrat in the Reconstruction Congress would have intended the Amendment to go that far.  Certainly no Radical Republican foresaw this expansion, either.  However, it can be argued that the legislative intent of the Amendment was especially to grow with the times, which it certainly has done.

 

 

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