Law School Discussion

Con-law "Substantive due process "

Con-law "Substantive due process "
« on: April 28, 2009, 01:59:32 PM »
What is substantive due process?


goaliechica

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Re: Con-law "Substantive due process "
« Reply #1 on: April 28, 2009, 02:13:20 PM »
lol.

bl825

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Re: Con-law "Substantive due process "
« Reply #2 on: April 28, 2009, 02:14:19 PM »
I believe that Substantive Due Process refers to rights that are not enumerated under anywhere else but which are considered so fundamental that they are protected under the Fourteenth Amendment.

goaliechica

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Re: Con-law "Substantive due process "
« Reply #3 on: April 28, 2009, 02:22:48 PM »
Substantive due process is distinguished from procedural due process (due process = from both the 4th and 15th Amendments).

Procedural due process = what process is the government using for taking your life, liberty or property (and are they giving you enough process)?

Substantive due process = what are the grounds on which the government is taking away your life, liberty or property (and are they permissible grounds)?

In order to determine whether or not they are permissible grounds, you have to look at the right that is implicated (fundamental rights get strict scrutiny, some things like legitimacy and gender get some kind of intermediate scrutiny, and other stuff gets rational basis scrutiny).

More or less. Obviously there are more nuances.

Kirk Lazarus

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Re: Con-law "Substantive due process "
« Reply #4 on: April 28, 2009, 02:23:59 PM »
I believe that Substantive Due Process refers to rights that are not enumerated under anywhere else but which are considered so fundamental that they are protected under the Fourteenth Amendment.

not limited to the fourteenth amendment.

Re: Con-law "Substantive due process "
« Reply #5 on: April 28, 2009, 04:13:14 PM »
They're things that come from emanations and penumbras after you've dropped a bad hit of acid.

Re: Con-law "Substantive due process "
« Reply #6 on: May 11, 2009, 04:48:15 PM »
in my con law studies, i never liked SDP that much as I thought there were too many value judgements in there. It's a tug of war between liberals and conservatives ..what it all comes down to...
I liked how O'Connor wrote her opinions, not taking any particular side. She was always right in the middle.

Re: Con-law "Substantive due process "
« Reply #7 on: May 27, 2009, 03:32:05 PM »
in my con law studies, i never liked SDP that much as I thought there were too many value judgements in there. It's a tug of war between liberals and conservatives ..what it all comes down to...
I liked how O'Connor wrote her opinions, not taking any particular side. She was always right in the middle.

SDP makes for rather sloppy jurisprudence, but it's absolutely necessary. It gives us things like the "right to privacy" within intimate relationships, and a parent's right to raise his/her child. I'm sure glad the state legislature can't limit my right to birth control -- even if that means I have to read a bunch of trippy opinions in Griswold!

Re: Con-law "Substantive due process "
« Reply #8 on: May 28, 2009, 11:26:20 AM »
substantive due process is whatever judges want to be law but isn't