Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

Synopsis

A review of the evolution of due-process jurisprudence in the United States.

In this book, Edward Keynes examines the fundamental-rights philosophy and jurisprudence that affords constitutional protection to unenumerated liberty, property, and privacy rights. He is critical of the failure of the U.S. Supreme Court to adopt a coherent theory for identifying which rights are to be considered fundamental and how these private rights are to be balanced against the public interests that the government has a duty to articulate and promote.

Keynes develops his argument by first surveying how substantive due process grew out of the tradition of Anglo-American jurisprudence and came to evolve over time. He pays special attention to the shift in its application early in the twentieth century, from protecting "liberty of contract" against economic regulation to protecting "privacy" and other noneconomic rights (as in Roe v. Wade) against social regulation.

Excerpt

In the thirty-five years following the Civil War, the United States became a transcontinental nation linked by railroad and telegraph. Between 1865 and 1900 the public corporation emerged as the dominant form of industrial capitalism. a new wave of immigrants landed in Boston, New York, Philadelphia, Chicago, and other cities. Looking for economic opportunity, the new immigrants, largely from southern and eastern Europe, became the backbone of America's industrial labor force. the nation's cities began to grow like Topsy, formerly serene residential neighborhoods cheek to jowl with noisy and dirty industrial quarters.

Confronted with the problems of urbanization, industrialization, economic integration, and concentrations of wealth, the states and the federal government employed their respective powers to accommodate the new industrial order. the states attempted to ameliorate the effects of the machine age, market distortions, rapid urban growth, and the arrival of millions of immigrants by enacting worker compensation laws, wages-and-hours regulations, mine-safety statutes, public-health inspection laws, consumer-protection statutes, and railway and public-utility rates and regulations, among other measures. Cities adopted zoning codes, erected public works, and cre-

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.