Whether or not substantive due process is logically a contradiction in terms, its status as an oxymoron has become what I call a constitutional meme.
Substantive due process is often defined but rarely with precision.
My argument is that Clause 39 and later concepts of due process developed precisely in order to defeat prerogative or administrative adjudication--that is, to defeat the binding adjudications that rulers tried to impose outside the courts of law.
The origins of due process can be found in Magna Carta's Article 39.
6) To accomplish this goal, Congress added or expanded alternative dispute resolution (ADR) mechanisms that are triggered once a due process complaint is filed.
11) Advocates for children and parents contend that due process is too expensive for most parents who cannot afford to pay the attorneys and expert witnesses whose participation is essential in a due process hearing.
On the few occasions when the Supreme Court has commented on this aspect of due process, it has suggested a choice between extremes: either due process requires one-size-fits-all procedures designed for the average or typical person in a particular context, or due process requires procedures that are determined on a case-by-case basis.
It is no surprise that the Court has favored an approach to due process that focuses almost exclusively on the needs of the average or typical person using a given set of procedures.
Parish, Chief Justice Charles Evans Hughes rejected substantive due process and the notion of unenumerated rights.
Similarly, modern-day liberals remain firmly committed to the demise of liberty of contract while at the same time championing Lochnerian substantive due process for privacy and abortion rights.
Due process requires notice and an opportunity to be heard.
Alabama State Board of Education (1961) did not require a 'full-dress judicial hearing' to comply with the rudiments of due process, the court indicated that the student be given the following:
13) Although a protected property interest may give rise to substantive and procedural due process
claims, a landowner asserting a substantive due process
claim against a local government applying land use restrictions must overcome major hurdles to succeed.
As the sovereignty of the common law gave way to the supremacy of written constitutions, legislatures and courts battled over the meaning of due process
This is where the notion of "fundamental fairness," or due process
, (7) comes into play.