The Evolution of Substantive Due Process through Roe v. Wade
This paper will discuss the history of substantive due process from its beginnings in the late Nineteenth Century through Roe v. Wade in the early 1970s. The first part of the paper will review the history of substantive due process prior to the passage of the Fourteenth Amendment and the Supreme Court's initial rejection of substantive due process protection. The second part of the paper will examine how the Supreme Court then accepted it for the protection of economic rights. The third part of the paper will look at the Court's withdrawal from strong substantive due process protection during the late 1930s through the 1950s. The last part of the paper will discuss the reemergence of substantive due process in the realm of personal liberties and argue that the Court has gone too far in its substantive due process analysis.
Background through the Slaughterhouse Cases
The idea that the due process clause of the Fifth Amendment might apply to the substance of government actions as well as the processes thereof received little support prior to the late Nineteenth Century. This idea requires belief in the notion that there are certain rights which are so fundamental to human existence that they are entitled to judicial protection. These rights, or values, might be protected by the Constitution as a whole or by the due process clause in the Fifth Amendment.
Support for protection of these fundamental rights by the Constitution as a whole was first articulated by a few Supreme Court cases during the 1790s. In one case, Justice Samuel Chase argued that legislative power is limited by the "nature and terms of the social compact" entered into by all members of a society. These criteria establish certain principles which cannot be violated by legislative acts. For instance, a law cannot punish a person for an "innocent action," one which was in violation of no ...