"Substantive Due Process and the Original Meaning of the Fourteenth Ame" by David R. Upham
 

Substantive Due Process and the Original Meaning of the Fourteenth Amendment's Due Process Clause

Authors

David R. Upham

Document Type

Article

Publication Title

Faulkner Law Review

Abstract

This essay will have two main parts. First, I will present a brief account of the drafting and adoption of the Due Process Clause to indicate the purpose and general understanding of the measure. Second, I will undertake an originalist analysis of the prohibition’s text to identify how its various parts—“nor shall any state deprive,” “any person,” of “life, liberty, property,” “without due process,” and “of law”—incorporate limitations on state legislative powers as to substantive and procedural matters. This essay’s tentative conclusion is that the Fourteenth Amendment’s Due Process Clause, according to its original meaning, does not incorporate any general rule governing substantive law. Nonetheless, by prohibiting state deprivations of life, liberty, and property, in the absence of lawful process, the measure does incorporate major restraints on the government on behalf of human rights.

First Page

35

Last Page

62

Publication Date

Fall 2019

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