I’ve been reading court cases for a couple years now, doing a bit of research here and there, and one thing that I really can’t get behind is the idea of substantial due process. I mean, I certainly support the judiciary’s function as a trier of law. If the court finds that a law is invalid, by all means it follows that a person may not be deprived of life, liberty, or property by the invalid law. I take issue in the part where the Supreme Court decides that certain unenumerated rights are too fundamental to be restricted by law, and on that basis invalidates the law.
The way I see it, “due process of law” is a term of art that mirrors “law of the land” as it appeared in the Magna Carta; basically, requiring due process of law means it has to be by law and not just some arbitrary decision by government. In as much as the phrase protects fundamental rights, those rights must be fundamental to the process of law itself, and inalienable to the citizen of a free government. For example, I would say a law which subjects the state’s citizens to the whims of the Pope counts as a violation of the due process clause; a law which copies the specific language or recommendation of a Papal Bull probably does not, at least not by virtue of sharing language with that document.
I hope dopers can correct my course, because the more thinking I do on this subject, the more I disagree with it. And substantive due process is the legal basis for a lot of landmark cases like Gitlow v. New York, West Virginia State Board of Education v. Barnette, NAACP v. Patterson, Griswold v. Connecticut, Loving v. Virginia, Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges, just to name a few.
Here are some select primary sources.
U.S. Const. art. IV, §2, cl. 1
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
U.S. Const. amend. V (emphasis on the due process clause)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const. amend. IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
U.S. Const. amend. X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Const. amend. XIV (emphasis on the due process clause)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Also a previous thread a decade ago on the same topic.