1. This essay discusses the difference between substantive and procedural due process. According to Murphy et al. (1995), " 'process' refers to procedure; thus 'due process' meant normal legal procedure. Substantive due process, on the other hand holds that some forms of liberty are so essential that government may not abridge them by any process" (pp. 1061-1062).
According to Chemerinsky (1997), procedural due process implies the availability of "a notice of the charges at issue, the opportunity for a meaningful hearing, and an impartial decisionmaker" and, in certain circumstances, the right to have counsel present (p. 454).
In the 19th century the Supreme Court used the Due Process Clause to protect private property and freedom of contract from state infractions --such as in cases involving "Laws impairing the Obligation of Contracts," U.S. Const., art. I, sec. 9, confiscation of property without compensation and later state regulatory laws. Since 1938 and United States v. Carolene Products Co., 304 U.S. 144 (1938), the Court has used the concept of substantive due process to expand the scope of constitutional protected personal liberties, such as the right of privacy in Griswold v. State of Connecticut, 381 U.S. 479 (1965) and as related to a woman's right to choose to have an abortion in Roe v. Wade, 410 U.S. 113 (1973). It has been used to vindicate the right to free public speech deemed by the Court to be a liberty fundamental to democratic self-government. See New York Times v. Sullivan, 376 U.S. 254 (1964). Another example is Justice Felix Frankfurter's statement in the majority opinion in
Rochin v. People of California, 342 U.S. 165 (1952), which held that pumping out a man's stomach to obtain evidence of narcotics was "conduct that shocked the conscience."
In substantive due process cases the Court strikes a balance between the protection of fundamental liberties and the legitimate needs of organized society...