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

By Edward Keynes | Go to book overview

2
Antecedents of the Fourteenth Amendment's Core Values

By 1866 due process was evolving into substantive as well as procedural limitations on the exercise of governmental power, applicable to the legislative, executive, and judicial branches of government. Some judicial opinions, legal commentaries, and state constitutions supported the view that due process protected individuals against arbitrary, capricious, or unreasonable governmental interference with life, liberty, and property interests.1 This body of jurisprudence suggests that due process guarantees fairness in the judicial process and restrains the exercise of legislative and executive power vis-U+00EO-vis the individual's fundamental rights. Americans sought to promote the security and personal integrity of each person by protecting these civil rights.

However, American jurists and politicians also recognized the need to reconcile the individual's pursuit of happiness with the government's responsibility to promote the general good or collective welfare. In the antebellum period, long before the eras of industrialization, transcontinental expansion ( 1865-1900), and mature capitalism ( 1920-39), the states employed the

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1
See Riggs, 1990 Wis. L. Rev.941 ( 1990); Strong, 15 Ariz. L. Rev.419 ( 1973).

-31-

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