Selective Incorporation apgoPo Excerpt of the text of the Fourteenth Amendment

Due Process: Substantive and Procedural

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Due Process: Substantive and Procedural

The due process clause of the Fourteenth Amendment states simply that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” In interpreting this clause, the Supreme Court has recognized two types of due process: procedural due process and substantive due process.

Substantive due process, the more complex concept, addresses whether there are certain areas where government action or regulation is inherently “undue,” a quality of action that government simply cannot undertake. In the first three decades of the twentieth century the Court occasionally ruled unconstitutional certain state regulations on businesses because it felt they were outside the “due” scope of governmental powers. Some commentators use this same line of reasoning today to argue that certain private behaviors, such as reproductive issues and sexual orientation and behavior, are also outside the realm of appropriate (or “due”) government powers. However, because this complex concept is one the Court has largely eschewed, this essay focuses on the more obvious and commonly applied concept of procedural due process.

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