Changes

“Due Process” is the doctrine which has undergone the most significant change throughout United States history.  The Due Process Clause of the Fourteenth Amendment is in effect a carbon copy of the same clause of the Fifth Amendment.  The clause there protects against deprivation of property without process of law.  Early on, this was understood as encompassing only procedural limitations on deprivations, as in, the government cannot take property without a fair hearing, which has come to be called “[[procedural due process”]].<ref>For modern understandings of procedural due process, see, e.g., Mathews v. Eldridge, 424 U.S. 319</ref>  However, the justly hated case of “[[Dred Scott]],” for all its deeply troubling racist connotations, included also the first discussion of [[substantive due process]], which has ironically become a powerful weapon against racism.<ref>Scott v. Sanford, 60 U.S. 393</ref>  This case first held that the individual held certain rights which the government could not take without due process of law, as distinct from defining what procedural types of process are adequate.<ref>Brest & Levinson, 240</ref>  Early civil rights cases nonetheless largely ignored the Due Process Clause: it is treated only in passing by the [[Slaughterhouse Cases]], and narrowed by the [[Civil Rights Cases]], which held that the Constitution only protects an abridgement of rights undertaken by [[state action]] (subsequent cases have significantly confused the state action doctrine, to the benefit of the civil rights movement).<ref>The Civil Rights Cases, 109 U.S. 3, for weakening of the state action doctrine, see e.g. Shelley v. Kraemer, 334 U.S. 1 (holding that judicial enforcement of a racially restrictive covenant qualifies as significant state action, which must be struck down therein).</ref>   

“Due Process” is the doctrine which has undergone the most significant change throughout United States history.  The Due Process Clause of the Fourteenth Amendment is in effect a carbon copy of the same clause of the Fifth Amendment.  The clause there protects against deprivation of property without process of law.  Early on, this was understood as encompassing only procedural limitations on deprivations, as in, the government cannot take property without a fair hearing, which has come to be called “[[procedural due process”]].<ref>For modern understandings of procedural due process, see, e.g., Mathews v. Eldridge, 424 U.S. 319</ref>  However, the justly hated case of “[[Dred Scott]],” for all its deeply troubling racist connotations, included also the first discussion of [[substantive due process]], which has ironically become a powerful weapon against racism.<ref>Scott v. Sanford, 60 U.S. 393</ref>  This case first held that the individual held certain rights which the government could not take without due process of law, as distinct from defining what procedural types of process are adequate.<ref>Brest & Levinson, 240</ref>  Early civil rights cases nonetheless largely ignored the Due Process Clause: it is treated only in passing by the [[Slaughterhouse Cases]], and narrowed by the [[Civil Rights Cases]], which held that the Constitution only protects an abridgement of rights undertaken by [[state action]] (subsequent cases have significantly confused the state action doctrine, to the benefit of the civil rights movement).<ref>The Civil Rights Cases, 109 U.S. 3, for weakening of the state action doctrine, see e.g. Shelley v. Kraemer, 334 U.S. 1 (holding that judicial enforcement of a racially restrictive covenant qualifies as significant state action, which must be struck down therein).</ref>   

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.”