Substantive Due Process

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  • A guarantee under the due process clauses of the Fifth and Fourteenth amendments that appropriate justifications will be used whenever the government is taking away a person's life, liberty, or property, regardless of the procedures used. Substantive due process rights are not explicitly defined in the U.S. Constitution. Rather, these rights are “unenumerated.” The concept of substantive due process developed around the time of the Civil War in the United States.

    Prior to 1856, legal theorists focused on the procedural features of due process: whether the government was following fair procedures when depriving a person of life, liberty, or property. Substantive due process was later introduced in 1856 in Dred Scott v. Sandford. In this case, the Supreme Court found that without due process, the Missouri ...

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