Q.1
The background of substantive due process is from Magna Carta. The Magna Carta represents the document that illustrates the association between the church, feudal barons, and English monarchy ( Kotuby & Sobota, 2017 ). The report provided outlines for addressing multiple political and economic challenges the monarchy posed to the barons. The document outlined for lawful judgment of people based on equality or the law of the land. According to Gedicks (2008), the “law of the land” remains the most influential provision in the Magna Carta and that has a substantial contribution to the principle of “due process of law.” The provision condemened the arrest and subsequent imprisonment of a free man except with the full application of the law of thhe land.
Adopting the Magna Carta enabled the British government to apply the substantive due process for centuries; however, the relationship between court and parliament limited the execution of the due process in the country. The court lacked the power to conduct judicial reviews to assist in determining whether the government operations violated the laws ( Kotuby & Sobota, 2017 ). Additionally, the courts did not possess the powers to perform effective enforcement of the substantive due process in the country. The judges could not assertively protect the substantive due process against the actions of the national parliament in Britain.
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Moreover, the Fourteenth and Fifth Amendments of the US constitution resulted in the adoption and implementation of the substantive due process in the country. The fourteenth and fifth amendments of the US constitution contains the substantive due process that hinders the government from violating the people’s right of liberty, life, or property without the substantive due process of the national law. The due process article offers multiple protection typologies for the people against injustices in the US. For instance, the clause protects vaguely documented rules, and the provision provides procedural or routine due process, integration of the bill of rights, and substantive due process ( Chemerinsky, 2019 ). Contrary to the British courts, the American courts use assertive strategies to uphold the due process prompting the national legislative and executive to adjust the documentation of the national statutes and laws. The fifth amendment of the US constitution contains the eminent domain that prohibits the federal government against the seizure of private property without [prior notification and compensation. For instance, the eminent domain requires the federal government to compensate the owner of a private land based on the fair market price or value before acquiring and using the land parcel for governmental projects. However, the fifteenth constitutional amendment extends the application of the eminent domain to the local and state governments.
Q. 2
The evolution of the substantive due process entails the attempts to protect the right of people to property ownership. Property owenership was a critical concern for the proponents of the principle of substantive due process. During the fifth amendment of the US constitution, the national supreme court acknowledge the contribution of the due process of the law in conveying the significance of land laws in the Magna Carta. In 1794 the North Carolina courts considered the importance of the due process in sustaining the laws or regulations of the land in their constitution. In 1937, the Supreme Court rejected substantive due process pertaining economy ( Denning, 2019 ). However, the Gabbert v. Conn case promoted the significance of substantive due process in ensuring the effective professional performance of the lawyers.
Consequently, the court applied the substantive due process to handle economic and safeguard civil liberty. The court continues to use the substantive due process in protecting the rights of people and addressing the national economic issues. Currently, the court applies the substantive due process to safeguard unenumerated rights in the constitution. For example, Stanley v, Illinois case of 1973, the Supreme Court illustrated that unmarried fathers possess the constitutional right to their children’s custody.
The modern substantive due process originates from the failure of the police power doctrine. The doctrine provided restriction on the governmental regulations on interference with providing ownership of property in the country ( Denning, 2019 ). The Wendell Holmes Jr. criticizes the substantive due process based on positivist skepticism. The critics resulted in the establishment of the current substantive due process. The case of west coast hotel v. Parrish informed the court and resulted in the rejection of the police powers.
Q.3
The substantive due process has a practical contextual foundation and offers a sufficient guarantee for the court processes. The substantive due process contains the essential rights jurisprudence of Lochner ( Chaisse, 2018 ). The document provides sufficient restriction of the arbitrary process to minimize interference with national liberty. The substantive due process requires the court system to offer protection to the general significance of national freedom. Comprehensively, the substantive due process encourages the court to assume the new responsibility of divinizing liberty and enforcing the liberty definition with the total power of judicial review ( Chaisse, 2018 ). The fourteenth amendment should prohibit the national government from violating specific fundamental principles, and the court should use the strength of the judicial review to safeguard the fundamental rights of the people, particularly the human rights enumerated in the national constitution of the US. The courts should continue to apply the substantive due process because the document has provisions that prevent the government from violating the fundamental human rights. The substantive due process provides more powers to conduct judicial reviews and use their reviewing powers to protect human rights effectively.
References
Chaisse, J. (2018). International investment treaties and arbitration across Asia . BRILL.
Chemerinsky, E. R. W. I. N. (2019). Constitutional Law . S.L.: Wolters Kluwer Legal Reg.
Denning, B. P. (2019). The Glannon guide to constitutional law: Powers and liberties: learning constitutional law through multiple-choice questions and analysis . Wolters Kluwer Law & Business.
Gedicks, F. M. (2008). An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment. Brigham Young University Law School , 58, 585-674.
Kotuby, C. T., & Sobota, L. A. (2017). General principles of law and international due process: Principles and norms applicable in transnational disputes . Oxford University Press.
