Evolution of Substantive Due Process

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 righ

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r analysis of a substantive due process issue, the Court formulated the following test: Is [the law] a fair, reasonable, and appropriate exercise of [the state's police power], or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? The Court did not question whether the right to enter into a business contract was one protected under the Fourteenth Amendment; it simply stated that it was, relying upon past interpretations of fundamental liberties in American society. It then stated that states have certain police powers relating to the safety, health, morals, and general welfare of the public. The limit to this power when it affects Fourteenth Amendment liberties is the subject of the above-mentioned test. In applying this test, the Court said that there was no reasonable ground for interfering with the right to enter into an employment contract by determining the hours of labor. The law involved neither the safety, morals, nor welfare of the general public and did not affect the interests of the public. Although
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Approximate Word count = 3480
Approximate Pages = 14 (250 words per page)

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