| − | The procedural rights consist of '''''legal process''''': prior notice of a legal hearing, a right to be heard, a right to have your attorney there, a right to call and cross-examine witnesses, a right to a decision with reasons, etc. When the government takes away your property ("eminent domain"), fires you from a government job, or takes some other time of formal action, you have a right to "due process" under the 14th Amendment. This is a logical extension of what the 14th Amendment says. | + | The procedural rights consist of '''''legal process''''': advance notice of a legal hearing, a right to be heard, a right to have your attorney there, a right to call and cross-examine witnesses, a right to a reasoned decision, etc. When the government takes away your property ("eminent domain"), fires you from a government job, or takes some other type of formal action, the 14th Amendment gives you a right to "due process." This is a logical extension of what the 14th Amendment says. A right to "due process" means a right to the "process that is due" - i.e., certain "procedural" protections. |
| − | The creation of "substantive" due process rights created by the U.S. Supreme Court is not a logical extension of what the 14th Amendment says. But this is how the Supreme Court created a new "right" to abortion. In ''Roe v. Wade'' (Jan. 22, 1973), the Court held that the Due Process Clause, combined with incorporation doctrine, invalidates all State laws prohibiting abortion. You can read the Constitution 100 times and there will still not be any mention of abortion in it, but the U.S. Supreme Court, by a 7-2 vote, declared that there is a constitutional right to abortion. This is an example of "judicial activism," where the Court when beyond merely interpreting the law, in order to create a new law. Over the years, the 7 votes in support of abortion on the U.S. Supreme Court has declined to only 4 or 5 votes, and many expect that eventually the Court will overturn the ''Roe v. Wade'' decision. If that happens, then States could again limit and prohibit abortion, as they had done prior to 1973. | + | The creation of "substantive" due process rights created by the U.S. Supreme Court is not a logical extension of what the 14th Amendment says. But this is how the Supreme Court created a new "right" to abortion. In ''Roe v. Wade'' (Jan. 22, 1973), the Court held that the Due Process Clause, combined with incorporation doctrine, invalidates all State laws prohibiting abortion. You can read the Constitution 100 times and you will still not find any mention of abortion in it, but the U.S. Supreme Court, by a 7-2 vote, declared that there is a constitutional right to abortion. This is an example of "judicial activism," where the Court went beyond merely interpreting the law, in order to create a new law. In the four decades since ''Roe v. Wade'' was decided, the 7 votes in support of abortion on the U.S. Supreme Court has declined to only 4 or 5 votes, and many expect that eventually the Court will overturn its ''Roe v. Wade'' decision. If that happens, then States could again limit and prohibit abortion, as they had done prior to 1973. |