The Essential Scalia by Antonin Scalia

Author:Antonin Scalia [Scalia, Antonin]
Language: eng
Format: epub
Publisher: The Crown Publishing Group
Published: 2020-09-15T00:00:00+00:00

SUBSTANTIVE DUE PROCESS

The Due Process Clause of the Fifth Amendment, applicable against the federal government, provides that “[n]o person shall…be deprived of life, liberty, or property, without due process of law.” The Due Process Clause of the Fourteenth Amendment, applicable against the states, similarly provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” By their terms, both provisions afford purely procedural protections: the government must provide “due process of law” when it deprives a person of “life, liberty, or property.”

By contrast, under the concept of “substantive due process,” there are some liberties, the Court has said, that the Due Process Clauses protect against deprivation, no matter how much process is provided.

Justice Scalia fought forcefully, but often unsuccessfully, against the Court’s expanding applications of substantive due process.

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