Square Pegs and round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights

The disintegration of due process of law was somewhat advanced prior to October, 1937, as a result of judicial reversals of opinions on price-fixing and minimum wage legislation. As the process of transformation continued, it took four major forms. They were: (1) the withdrawal of substantive due process as a limitation on social legislation, taxation, rate-making, and regulatory action generally; (2) an expansion of substantive due process in cases involving freedom of expression, assembly, and religion, including rights of labor through the application of new concepts of freedom of speech; (3) the curtailment of procedural due process as a limit on administrative action except in cases involving the deportation of aliens; and (4) the use of procedural due process in such a way as to provide greater protection on the whole to persons accused of crime. This transformation has been accompanied by changed assumptions which accommodate governmental activity.Thus, on the assumption that so long as one is free to possess the fruits of agricultural production there is no denial of due process of law, the Court has sustained rigid restrictions on the marketing of agricultural products even when retroactively imposed and when the quotas were so applied as to include the wheat produced by a farmer for his domestic consumption. On a further assumption that since Congress has the power to decide the issue of the advantages and disadvantages of holding companies, the Court not only sustained the Public Utility Holding Company Act, but in so doing asserted that the judiciary could not question the propriety of Congress' decision.

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Part VII Rights—Substance and Content, Ch.43 Due Process

10.1093/law/9780198704898.003.0043 ◽

2016 ◽

Author(s):

Chandrachud Abhinav

Keyword(s):

Constitutional Law ◽

Due Process ◽

Pure Form ◽

Indian Constitution ◽

Constituent Assembly ◽

Procedural Due Process ◽

Due Process Of Law ◽

Substantive Due Process

This chapter examines the guarantee of ‘due process of law’ in the Indian Constitution. After providing an account of Constituent Assembly Debates and the historical intent behind this guarantee, the Chapter explores how substantive due process came to become a part of Indian constitutional law. Through a reading of important cases, it demonstrates the shift from substantive due process to procedural due process before turning to a third kind of due process presently seen in Indian constitutional law that is distinct from these two standard forms. It examines this third form of ‘pure form’ due process, as well as provides some reflections upon the concepts of arbitrariness and reasonableness and their relationship with this guarantee.

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Bill of Rights - Failure of Courts to Apply Substantive Due Process - Regina v. Gonzales

Alberta Law Review ◽

10.29173/alr2074 ◽

1969 ◽

pp. 149 ◽

Cited By ~ 1

Author(s):

Gary G. Cioni

Keyword(s):

Due Process ◽

Bill Of Rights ◽

Substantive Due Process

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PENDEKATAN SOSIOLOGI HUKUM DALAM MEMAHAMI KONFLIK PERATURAN PERUNDANG-UNDANGAN DI INDONESIA

Jurnal Hukum dan Pembangunan Ekonomi ◽

10.20961/hpe.v8i2.49764 ◽

2021 ◽

Vol 8 (2) ◽

pp. 156

Author(s):

Rizal Irvan Amin

Keyword(s):

Due Process ◽

Legal Order ◽

Scientific Instrument ◽

Government Agencies ◽

Internal Conflicts ◽

Procedural Due Process ◽

Regulatory Systems ◽

Sociological Jurisprudence ◽

Due Process Of Law ◽

Substantive Due Process

AbstractThe issue of regulation has indeed become a lively discourse in recent years. Laws and regulations, which in essence is a set of regulatory systems to provide an orderly legal order and society, often creates conflicts, both internal conflicts between regulations and external conflicts involving government agencies and the community. The study of legal science in the perspective of sociological jurisprudence is a scientific instrument that makes sense to analyze the phenomenon of legal problems that occur in indonesia, this is because the beginning and the end of a regulation is society. The results show that regulatory conflicts occur because in practice the formation of laws and regulations often ignores procedural due process of law and substantive due process of law, one of the main points is that the widest possible public participation is required in the regulatory formation process. As a result, several regulations that have been produced often cause conflicts due to a mismatch between the substance of the regulations and the conditions and needs of the community. AbstrakIsu permasalahan regulasi menjadi diskursus yang sering mencuat beberapa tahun terakhir. Peraturan perundang-undangan yang esensinya merupakan sekumpulan sistem aturan untuk menghadirkan tatanan hukum dan masyarakat yang tertib, justru realitanya sering kali memunculkan konflik, baik konflik internal antar peraturan maupun konflik eksternal yang melibatkan lembaga pemerintahan dan masyarakat. Kajian ilmu hukum dalam perspektif sosiologi hukum menjadi instrumen keilmuan yang masuk akal untuk membedah fenomena permasalahan peraturan perundang-undangan yang terjadi, hal ini dikarenakan hulu dan hilir suatu regulasi adalah masyarakat. Hasil penelitian menunjukkan bahwa konflik regulasi terjadi dikarenakan di dalam praktik pembentukan peraturan perundang-undangan masih sering kali mengabaikan procedural due process of law dan substantive due process of law yang salah satu poin utamanya adalah dibutuhkan partisipasi publik yang seluas-luasnya di dalam proses pembentukan peraturan. Alhasil beberapa regulasi yang dihasilkan kerap menimbulkan konflik dikarenkan ketidaksesuaian antara substansi peraturan dengan keadaan dan kebutuhan di masyarakat.

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From Warren to Burger: The Rise and Decline of Substantive Equal Protection

American Political Science Review ◽

10.2307/1957175 ◽

1972 ◽

Vol 66 (4) ◽

pp. 1226-1233 ◽

Cited By ~ 5

Author(s):

Wallace Mendelson

Keyword(s):

Due Process ◽

Fourteenth Amendment ◽

Equal Protection ◽

Judicial Activism ◽

Bill Of Rights ◽

Burger Court ◽

Judicial Supremacy ◽

Warren Court ◽

Substantive Due Process

Substantive due process is the classic, if temporary, achievement of judicial activism. The Roosevelt Court destroyed it out of respect for the democratic processes. Mr. Justice Black's “incorporation” ploy was calculated to forestall backsliding by equating the Fourteenth Amendment with the Bill of Rights. But the Bill of Rights, after all, is quite old fashioned. It does not cover many matters deemed crucial in our day, e.g., poverty. To fill this “gap” the Warren Court used “equal protection” as “actively” as the pre-Roosevelt Court had used “due process.” Obviously inspired by the Black incorporation principle, the early Burger Court is doing to substantive equal protection what the Roosevelt Court did to substantive due process. A generation ago we called it a “return to the Constitution,” now it is called strict construction. If in time the full Nixon Court succumbs to the magic of power and imposes its ideals upon the nation, some of us may find embarrassment in our quondam efforts to convince ourselves that judicial activism (it used to be called judicial supremacy) is a proper handmaiden of democracy.

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Fair and Equitable Treatment: Echoes of FDR's Court-Packing Plan in the International Law Approach Towards Regulatory Expropriation

The Law and Practice of International Courts and Tribunals ◽

10.1163/157180306778150632 ◽

2006 ◽

Vol 5 (2) ◽

pp. 231-256 ◽

Cited By ~ 1

Author(s):

Mark Kantor

Keyword(s):

International Law ◽

Due Process ◽

International Investment ◽

International Investment Law ◽

Procedural Due Process ◽

Fair And Equitable Treatment ◽

Investment Law ◽

Substantive Due Process ◽

Equitable Treatment ◽

The U.S

AbstractIn this article, the author compares U.S. Constitutional law addressing "regulatory takings," including substantive due process, with analogous international investment law reviewing regulatory expropriations. Many of the concepts underlying the U.S. approach towards substantive due process appear in discussions of the meaning of international investment law protections, particularly the "Fair and Equitable Treatment" (F&ET) obligation. The article first reviews direct efforts by the U.S. Government to harmonize U.S. Constitutional practice and international law with respect to regulatory expropriations. It then considers how the U.S. substantive due process and procedural due process approaches towards regulation of property interests compare with the developing body of F&ET decisions and commentary concerning regulatory conduct of a host State.

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