Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment. 46Ī separate question is the ability of a government official to invoke the Due Process Clause to protect the interests of his office. 43 Although various decisions have held that the “liberty” guaranteed by the Fourteenth Amendment is the liberty of natural, 44 not artificial, persons, 45 nevertheless, in 1936, a newspaper corporation successfully objected that a state law deprived it of liberty of the press. Further, there is no doubt that a corporation may not be deprived of its property without due process of law. 41 As early as the 1877 Granger Cases 42 the Supreme Court upheld various regulatory state laws without raising any question as to whether a corporation could advance due process claims.
A historical controversy has been waged concerning whether the framers of the Fourteenth Amendment intended the word “person” to mean only natural persons, or whether the word was substituted for the word “citizen” with a view to protecting corporations from oppressive state legislation. “Person”.-The Due Process Clause provides that no states shall deprive any “person” of “life, liberty or property” without due process of law. Though application of these rights against the states is no longer controversial, the incorporation of other substantive rights, as is discussed in detail below, has been.
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40 Through the process of “selective incorporation,” most of the provisions of the first eight Amendments, such as free speech, freedom of religion, and protection against unreasonable searches and seizures, are applied against the states as they are against the federal government. Passage of the Reconstruction Amendments (13th, 14th, and 15th) gave the federal courts the authority to intervene when a state threatened fundamental rights of its citizens, 39 and one of the most important doctrines flowing from this is the application of the Bill of Rights to the states through the Due Process Clause. In reality, substantive due process has had greater political import, as significant portions of a state legislature’s substantive jurisdiction can be restricted by its application.Īlthough the extent of the rights protected by substantive due process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case law. In theory, the issues of procedural and substantive due process are closely related. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and noneconomic matters. Substantive due process, although also based on principles of “fundamental fairness,” is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Relevant issues, as discussed in detail below, include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Procedural due process, based on principles of “fundamental fairness,” addresses which legal procedures are required to be followed in state proceedings. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.ĭue process under the Fourteenth Amendment can be broken down into two categories: procedural due process and substantive due process. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
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