Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

Chapter 4
THE RISE, DEMISE AND RESURRECTION OF SUBSTANTIVE DUE PROCESS

The concept of substantive due process, as originally propounded with respect to the Fourteenth Amendment, consumed only three paragraphs of the Supreme Court's attention. Summary rejection of the due process clause as a source of fundamental rights that restricted state legislative power, in the Slaughter-House Cases, may have reflected accurately the limited expectations of the provision's framers. Except for Chief Justice Taney's reference to due process as a bar to congressional regulation of slavery, the Court traditionally had regarded the principle as a guarantee of procedural fairness. By negating the significance of the privileges and immunities clause, the Slaughter-House Court eliminated what may have been a more logical predicate for identifying and developing fundamental rights. As Justice Field saw it, economic rights were among the privileges and immunities of national citizenship. The Court's initial refusal to develop fundamental rights, either by means of the privileges and immunities clause or the due process clause, was short-lived. The Slaughter-House Court miscalculated the long-term appeal of the Fourteenth Amendment, and the due process clause in particular, as a check on the legislative process. Even though a continuing source of controversy, and despite the uncertain life span of rights that are glossed on the Constitution, substantive due process has endured as a significant aspect of twentieth-century constitutional jurisprudence.

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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