What do the contemporary issues of military tribunals, same-sex marriage, informational
privacy, and reproductive rights have in common? All of them raise constitutional
issues that fall under the umbrella of the Due Process Clauses of the
United States Constitution. Th e resolution of all of them hinges, to a dramatic
degree, upon ever-evolving judicial interpretations of that “due process of law”
mandate.
Few Americans understand the common constitutional source of these rights,
its ancient history, or the ornate set of rights that today fall within the due process
embrace. Even many scholarly debates about judicial activism and the need to
return to “original meaning” of constitutional rights—especially original meaning
of due process of law—fail to apprehend the full due process terrain. Instead they
oft en cherry-pick issues within the doctrine to criticize or praise specifi c pieces
of the law, and are unmindful of the implications of these critiques for other rights
that fl ow from the same due process artery. In particular, many critics who insist
that the phrase due process historically and logically embraces only procedural, not
substantive rights, ignore the multiple ways in which procedural rights fl ow from
substantive rights and depend upon them. More fundamentally, the arguments
against substantive due process rights simply blink too much doctrinal reality:
Americans’ settled expectations of ordered liberty and baseline sense of what constitutes
a legitimate exercise of government power now include a complex set of
procedural and substantive rights that emerged since the late 1800s under the due
process framework.
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