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posting for AmesG; he was working on this when he got banned.
'''Substantive due process''' is the idea that the due process clause of the [[Fourteenth Amendment]] regulates not only the procedures due a citizen, before revoking a right, but also what rights may be revoked at all.
'''Substantive due process''' is the idea that the due process clause of
the [[Fourteenth Amendment]] regulates not only the procedures due a
citizen, before revoking a right, but also what rights may be revoked at
all. It has become a legal theory tied uniquely in the area of
[[fundamental rights]] jurisprudence - or, the protection of certain
inalienable, yet undefined constitutional rights. [[Antonin Scalia]]
sharply dissents from almost all cases upholding substantive due
process, believing that there are no fundamental rights if they are not
defined by the constitution, or discoverable from American history.
== Lochner Era ==
== Lochner Era, and Before ==
Ironically, given that substantive due process would later become a tool
of liberal jurists, the doctrine began in conservative, and extremely
regressive, decisions. The justly reviled decision ''Scott v. Sanford''
was the first to suggest that the Constitution protects certain rights
(free use of "property," in this case) from intrusion by the government,
even if constitutional safeguards had led to a procedurally "correct"
taking.<ref>I'll do the cites later</ref> Although ''Dred Scott'' was
thankfully overturned by the [[Reconstruction]] Amendments, the seeds of
substantive due process were sown in the constitutional landscape.
The doctrine was later, famously, picked up by the Court in ''Lochner'',
a decision which held that federal minimum wage laws intruded too far
into the "fundamental right" for an employee and an employer to freely
contract. This fundamental right could not be abridged even by fair
legislative processes. This line of jurisprudence - which came to be
known as "economic" substantive due process - came to an abrupt end in
the wake of the [[Great Depression]], which forced a nationwide crisis
of conscience in the doctrines of full and free [[laissez-faire]], the
philosophical underpinnings of ''Lochner''.<ref>See generally Casey v.
Planned Parenthood</ref> It was fully overturned in ''West Coast
Hotel''.<ref>cites later</ref>
== Griswold Era ==
== Griswold Era ==
== The Roe Controversy, and its Progeny ==
== References ==