Substantive Due Process Clause

Description and where located 

The substantive due process is a clause within the US Constitution that has existed for a very long time despite the critics that it has always received from different parties. This clause exists within the Fourteenth Amendment of the US Constitution. By definition, it is a legal theory that does not only protect some legal procedures, but also certain rights that are not related to the procedure ( Bernstein, 2016) . It generally suggests a concern with procedure within the justice system instead of substance. It gives the courts power to protect some fundamental rights from government interference. 

History and origin 

The substantive due process clause has a long history and the concept has its roots in early English law. It was first used with the Magna Charts which stated that no freeman should be disseised, destroyed, or imprisoned unless it is done by the “laws of the land.” Early in the 1354, the term “due process” was used in the explanation of the set forth in Magna Charta ( Greene, 2016) . However, this clause came to be introduced later into the United States in the 18 th Century. 

The “substantive due process” clause was introduced in the US jurisprudence in the year 1856. It is in this same that the Supreme Court faced a tough challenge where it has to apply the substantive due process. The Supreme Court of the US faced a constitutional challenge to the 1820 Missouri Compromise. According to the Missouri law at that time, the slaves who entered free territories were supposed to be free for the rest of their lives ( Williams, 2010) . In this first case where the substantive due processes were used, the Supreme Court made a decision that the right to own slaves was protected by this clause despite the fact that it was not specifically enumerated in the constitution. From this, the court decided that the freeing slaves upon visitation of the free territories were depriving slaves masters of their right to property. This example illustrates how substantive due process clause was used a long time ago when it was first introduced into the US. 

Evolution of the substantive due process and how it is interpreted in the area of privacy 

Change is inevitable and the substantive due process has evolved very much over the past period. So much has changed especially on how it was interpreted long ago in the 1900s to how it is currently interpreted by the modern courts. The manner in which the substantive due process was used in the 1900s is very different from the manner in which it is currently used and this can be justified by the privacy rights. In the 1900s, Privacy that was not specifically mentioned in the Constitution could be easily determined by the use of substantive due process clause ( Williams, 2010) . An example of a case where it was used is the Grissworld v. Connecticut where the rights to privacy that were not mentioned in the constitution came to be found in what the Court referred to as “penumbra.” Currently, the Supreme Court doctrine prohibits the judiciary system from making use of the “substantive due process clause” instead of making use of an applicable specific constitution provided by the law especially if one is available. Today, the courts majorly rely on specific privacy laws such as the Fourth Amendment which protects against unreasonable search, Third Amendment which protects the privacies at home and the First Amendment that protects the freedom of expression ( Bernstein, 2016) . Most of the decisions that are made nowadays on the issues of privacy are based on these specific clauses. Most of the substantive due process arguments that were used in the 1900s have been modified into written specific laws that can be consulted in the Court of law. The evolution that has taken place is that most of the substantive due processes have been transformed into a clear contextual warrant while some of them have been dropped and rendered outdated. 

Textual foundation and analysis whether it should continue to play a role in American jurisprudence 

Moreover, there is a textual foundation for the notion of substantive due process as it is used in the modern justice system. Most of the substantive due process arguments have been put into texts. An example is the Fourteenth Amendment which is specific in limiting the actions of the government in various situations. In 1833, the Fifth Amendment was not directly binding the actions of the governments. During this period, neither the Federal Court nor the Supreme Courts exercised much control over government actions or processes by which the government-administered their laws ( Greene, 2016) . Today much has changed and it has been put into texts. The 13 th , 14 th and 15 th Amendments have been developed and put down in writing to control discrimination and other unlawful acts against people. 

In my opinion, the substantive due process should continue to play a role in the current judicial system of the US. It is a fact that the government is taking many actions that can still deprive people of their liberty, property, or rights. In such cases, it will be important to apply some form of substantive due process in order to help people at different levels ( Bernstein, 2016) . An example is where the government may decide to fire an individual from a state job, send them to prison or cut their social security benefits. These actions are not prohibited but in such cases, substantive due process will be very important in helping people get justice. This is why the substantive due process should still continue to play a role in American jurisprudence.  

Reference 

Bernstein, D. E. (2016). The History of Substantive Due Process: It's Complicated.  Tex. L. Rev. See Also ,  95 , 1. https://heinonline.org/HOL/LandingPage?handle=hein.journals/seealtex95&div=2&id=&page= 

Greene, J. (2016). The meming of substantive due process.  Const. Comment. ,  31 , 253. https://heinonline.org/HOL/LandingPage?handle=hein.journals/ccum31&div=12&id=&page= 

Williams, R. C. (2010). The one and only substantive due process clause.  The Yale Law Journal , 408-512. https://www.jstor.org/stable/20799521?seq=1