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Due process (more fully due process of law) is the principle that the government must respect all of a person's legal rights, instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. The United States of America —commonly referred to as the The Constitution of the United States of America is the supreme Law of the United States. Article One of the United States Constitution describes the powers of the legislative branch of the United States government, known as Congress Article Two' of the United States Constitution creates the Executive branch of the government, comprising the President and other executive Article Three of the United States Constitution establishes the Judicial branch of the federal government. Article Four of the United States Constitution relates to the states Article Five of the United States Constitution describes the process whereby the Constitution may be altered Article Six establishes the United States Constitution and the Laws and treaties of the United States made in accordance with it as the supreme Article Seven of the United States Constitution describes the process by which the entire document is to be ratified and take effect This is a complete full list of all ratified and unratified amendments to the United States Constitution which have received the approval of the Congress. In the United States the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known The First Amendment to the United States Constitution is part of the United States Bill of Rights that expressly prohibits the United States Congress The Second Amendment (Amendment II to the United States Constitution is a part of the United States Bill of Rights that protects the pre-existing The Third Amendment to the United States Constitution (Amendment III is a part of the United States Bill of Rights. The Fourth Amendment' ( Amendment IV) to the United States Constitution is a part of the Bill of Rights. The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure The Sixth Amendment of the United States Constitution sets forth rights related to criminal prosecutions in federal courts The Eighth Amendment ( Amendment VIII) to the United States Constitution is part of the United States Bill of Rights which took effect in 1791 Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are The Tenth Amendment ( Amendment X) of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, The Eleventh Amendment ( Amendment XI) of the United States Constitution was passed by the U The Twelfth Amendment ( Amendment XII) to the United States Constitution provides the procedure by which the President and Vice President are The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit Slavery, and with limited exceptions such as those The Fourteenth Amendment ( Amendment XIV) to the United States Constitution is one of the post- Civil War Reconstruction Amendments, first The Fifteenth Amendment ( Amendment XV) of the United States Constitution prohibits each government in the United States to prevent a citizen from voting based on that The The Seventeenth Amendment ( Amendment XVII) of the United States Constitution was passed by the Senate on June 12 1911 and by the House on May 13 1912 Amendment XVIII (the Eighteenth Amendment) of the United States Constitution, along with the Volstead Act (which defined "intoxicating liquors" The Nineteenth Amendment ( Amendment XIX) to the United States Constitution prohibits each of the states and the federal government from The Twentieth Amendment ( Amendment XX) of the United States Constitution establishes some of the details dealing with the beginning and ending of the terms of The Twenty-first Amendment ( Amendment XXI) to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, The Twenty-second Amendment ( Amendment XXII) of the United States Constitution sets a Term limit for the President of the United States. Amendment XXIII was the twenty-third Amendment to the United States Constitution which permits the District of Columbia to choose Electors Amendment XXIV (the Twenty-fourth Amendment) of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in The Twenty-fifth Amendment ( Amendment XXV) to the United States Constitution partially replaced the ambiguous wording of Article II Section 1 Clause The Twenty-sixth Amendment ( Amendment XXVI) of the United States Constitution, ratified on July 1, 1971, standardized the voting age to 18 The Twenty-seventh Amendment ( Amendment XXVII) is the most recent Amendment to the United States Constitution, having been ratified in 1992, The following is a list of existing or former national Constitutions by country and by Codification. In the laws of the United States and England, this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions. Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just or fair, processes in legal proceedings Procedural justice refers to the idea of fairness in the processes that resolve disputes and allocate resources
|“||No person shall be . The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure . . deprived of life, liberty, or property, without due process of law . . . .||”|
|“||No State shall deprive any person of life, liberty, or property, without due process of law . The Fourteenth Amendment ( Amendment XIV) to the United States Constitution is one of the post- Civil War Reconstruction Amendments, first . .||”|
The term "due process" existed long before 1791 when it was inserted into the U. S. Constitution. The term had a lengthy history in both England and America.
The concept of "due process" dates all the way back to the Magna Carta of A. Magna Carta ( Latin for Great Charter, literally " Great Paper " also called Magna Carta Libertatum ( Great Charter of Freedoms D. 1217. In Chapter 39 of the Magna Carta, King John of England promised as follows: "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. John (24 December 1167 &ndash 19 October 1216 reigned as a King of England from 6 April 1199 until his death " Magna Carta itself immediately became part of the "law of the land", and Chapter 61 of that great charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man. " Thus, Magna Carta not only required the monarchy to obey the law of the land, but also limited how the monarchy could change the law of the land.
Shorter versions of Magna Carta were subsequently issued by British monarchs, and Chapter 39 of Magna Carta was renumbered "29. " The phrase due process of law first appeared in a statutory rendition of Magna Carta in A. D. 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law. Edward III (13 November 1312 &ndash 21 June 1377 was one of the most successful English monarchs of the Middle Ages. "
In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Sir Edward Coke (pronounced "Cook" ( 1 February 1552 &ndash 3 September 1634) was an early English colonial Entrepreneur Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England. . . . (that is, to speak it once and for all) by the due course, and process of law. "
Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Anne (6 February 1665 – 1 August 1714 became Queen of England, Scotland and Ireland on 8 March 1702 succeeding William III of England and II of The Queen's Bench (or during the reign of a male monarch the King's Bench) is the superior court in a number of jurisdictions within some of the Commonwealth realms Paty.  In that case, the House of Commons had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts. The House of Commons' is the Lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords For the prison in East Granby, Connecticut, see Old Newgate Prison.  The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:
[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law. . . . By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority. 
Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords, ostensibly in order to regulate the election of its members. The House of Lords is the second house of the Parliament of the United Kingdom and is also commonly referred to as "the Lords"  Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament. A parliamentary session is a period of time where the Legislature in a Parliamentary government is sitting
Throughout centuries of British history, many laws and treatises asserted that various different requirements were part of "due process" or part of the "law of the land", but usually that was merely because of what the actual existing law happened to be, rather than because of any intrinsic requirement. As the U. S. Supreme Court has explained, it was not intended to assert that a requirement "was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used. "
In the early United States, the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase.  In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.  Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import. . . . "
New York was the only state that asked Congress to add "due process" language to the U. S. Constitution. New York ratified the U. S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law. "
In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress.  Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:
Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. 
No state or federal constitution in the United States had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However, when the U. S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". The Supremacy Clause is the common name given to Article VI Clause 2 of the United States Constitution, which readsThis Constitution and the Laws of the United As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.
The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure The federal government of the United States is the central United States Governmental body established by the United States Constitution. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. The Fourteenth Amendment ( Amendment XIV) to the United States Constitution is one of the post- Civil War Reconstruction Amendments, first A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government The Supreme Court has interpreted the two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: "To suppose that 'due process of law' meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. Felix Frankfurter ( November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court "
The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Note This Wikipedia entry deals with the legal concept legal person. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.
Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. The Constitution of the United States of America is the supreme Law of the United States. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions. . . . " In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that "we cannot leave to the States the formulation of the authoritative . . . remedies designed to protect people from infractions by the States of federally guaranteed rights. "
As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures — the ways in which laws may operate — and also on legal substance — what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent:
As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions. Clarence Thomas (born June 23, 1948) is an American Jurist. He has been serving as an Associate Justice of the Supreme Court of the United " In re Winship, 397 U. S. 358, 382(1970) (Black, J. , dissenting).
Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. Hugo LaFayette Black (February 27 1886&ndashSeptember 25 1971 was an American politician and jurist. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.
By the middle of the 19th century, "due process of law" was interpreted by the U. S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will. " But determining what those restraints are has been a subject of considerable disagreement.
Procedural due process is essentially based on the concept of "fundamental fairness. " As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction. Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property
In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of procedural rights under the Bill of Rights, most of which have been incorporated under the Fourteenth Amendment to the States. The United States of America —commonly referred to as the In the United States the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known Incorporation (of the Bill of Rights is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result. A statute is a formal written enactment of a Legislative authority that governs a Country, State, City, or County. This article is for the legal term For regulation of genes see Regulation of gene expression. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment. The Eighth Amendment ( Amendment VIII) to the United States Constitution is part of the United States Bill of Rights which took effect in 1791 
In 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". 
Courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in the concept of ordered liberty" (Palko v. Connecticut). Palko v Connecticut,, was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.  Some of those rights have long histories or "are deeply rooted" in American society.
The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. The Lochner era is a period in American legal history from roughly 1890 to 1937 in which the United States Supreme Court tended to Freedom of contract or contractualism is the idea that individuals should be free to bargain among themselves the terms of their own contracts without government interference Since then, the Supreme Court has decided that numerous other freedoms, that do not appear in the plain text of the Constitution, are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures. 
Today, the Court focuses on three types of rights under substantive due process in the 14th amendment. These categories originated in United States v. Carolene Products Co., 304 U. United States v Carolene Products Company, 304 US 144 ( 1938) was an April 25, 1938 decision by the United States Supreme S. 144 (1938), footnote 4. Those three types of rights are: the substantive rights of the accused (e. g. the Eighth Amendment), restrictions on the political process (e. g. the rights of voting, association, and free speech), and the rights of “discrete and insular minorities. ”
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in the history and traditions of the United States. If the right is not a fundamental right the court applies a rational basis test; if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. Once the court has established that the right being violated is a fundamental right, the court inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Causes of the war See also Origins of the American Civil War, Timeline of events leading to the American Civil War The coexistence of a slave-owning South Some critics of substantive due process argue that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Dred Scott v Sandford —whether or not they were slaves—could never be Citizens of the United States, and that the United States Congress Some advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but argue that it was employed incorrectly.
The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property. " However, the rationale of Wynehamer was subsequently rejected by the U. S. Supreme Court.  Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process.  But, the rationale of Murray was subsequently characterized by the U. S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process. 
Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation. Daniel Webster (January 18 1782 &ndash October 24 1852 was a leading American Statesman during the nation's Antebellum Period. Trustees of Dartmouth College v Woodward, 17 US (4 Wheat 518 ( 1819) was a landmark United States Supreme Court case dealing with the application A bill of attainder (also known as an act or writ of Attainder) is an act of Legislature declaring a person or group of persons guilty of  Nevertheless, the U. S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it, and the U. S. Supreme Court would later contradict Webster's rationale. 
Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. Roger Brooke Taney ( "tawny" March 17, 1777 – October 12, 1864) was the twelfth United States Attorney General The Missouri Compromise was an agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving " In Dred Scott, neither Taney nor dissenting Justice Curtis mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott. Benjamin Robbins Curtis ( November 4, 1809 &ndash September 15, 1874) was an American Attorney and United States Supreme
The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century.
Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the watershed Slaughter-House Cases. The Slaughter-House Cases, 83 US 36 ( 1873) were a series of cases decided by the Supreme Court of the United States. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s.
Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although economic liberty restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. Griswold v Connecticut, 381 US 479 ( 1965) was a Landmark case in which the Supreme Court of the United States ruled that the The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment (protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The Third Amendment to the United States Constitution (Amendment III is a part of the United States Bill of Rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. John Marshall Harlan (May 20 1899 – December 29 1971 was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971 Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold. Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are Arthur Joseph Goldberg ( August 8 1908 &ndash January 19 1990) was an American statesman and jurist who served as the U 
Social conservatives who reject sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:
We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. Pierce v Society of Sisters of the Holy Names of Jesus and Mary,, was an early 20th century United States Supreme Court decision which significantly expanded coverage As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.
Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws, although it is also possible that those laws might be deemed to violate "First Amendment principles", as Justice Kennedy speculated in Troxel v. Granville. Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U Troxel v Granville, 530 US 57 ( 2000) was a case in which the Supreme Court of the United States, citing a constitutional right of parents  Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available. 
Several further cases will now be briefly discussed. The right to marry a person of a different race was addressed in Loving v. Virginia, in which the Court said that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. Loving v Virginia,, was a landmark Civil rights case in which the United States Supreme Court declared Virginia 's Anti-miscegenation Anti-miscegenation laws, also known as miscegenation laws, were laws that banned Interracial marriage and sometimes interracial sex between whites and members of other The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person Advocates of substantive due process have sought to extend Loving in order to establish other rights (e. g. a right to gay marriage). Same-sex marriage (also referred to as gay marriage) is a term for a legally or Socially recognized Marriage between two people of the same  A right to have children was addressed in Skinner v. Oklahoma, but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause since the Oklahoma law required sterilization of some 3-time felons but not others. Skinner v State of Oklahoma Ex Rel Williamson, 316 US 535 (1942 was the United States Supreme Court ruling which held that Compulsory sterilization The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person A substantive due process right of a parent to educate a young child (i. e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska, with two justices dissenting, and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times. Meyer v Nebraska, 262 US 390 (1923 was a US Supreme Court case which held that a 1919 Nebraska law prohibiting the teaching of foreign  The freedom from arbitrary bodily invasion was addressed in Rochin v. California; the freedom from arbitrary detainment, in O'Connor v. Donaldson; freedom from excessive punitive damages, in BMW v. Gore; the right to refuse medical treatment, in Cruzan v. Missouri; the right to public criminal trials, in Richmond Newspapers v. Rochin v California, 342 US 165 ( 1953) was a case decided by the Supreme Court of the United States that added behavior that " Shocks O'Connor v Donaldson, 422 US 563 (1975 was a Landmark decision in Mental health law. BMW of North America Inc v Gore, 517 US 559 (1996 was a United States Supreme Court case limiting Punitive damages under the Due Cruzan v Director Missouri Department of Health, 497 US 261 ( 1990) was a United States Supreme Court case argued on December 6 Virginia; and the right to reside with family members, in Moore v. East Cleveland. 
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i. e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e. g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. Oliver Wendell Holmes Jr ( March 8, 1841 &ndash March 6, 1935) was an American Jurist who served on the Supreme Legal formalism is a positivist view in Jurisprudence and the Philosophy of law. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.
Originalists, such as Supreme Court Justice Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron. Clarence Thomas (born June 23, 1948) is an American Jurist. He has been serving as an Associate Justice of the Supreme Court of the United (born March 11, 1936) is an American Jurist and the second most senior Associate Justice of the Supreme Court of the United States " Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process seems to have been more about where to apply it, and less about whether it should be applied at all.
Many non-originalists, like Justice Byron White, have also been critical of substantive due process. Byron Raymond White ( June 8, 1917 &ndash April 15, 2002) won fame both as a football Running back and as an associate justice of As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. Roe v Wade, 410 US 113 (1973 is a controversial United States Supreme Court case that resulted in a Landmark decision regarding Bowers v Hardwick,, was a United States Supreme Court decision that upheld the constitutionality of a Georgia Sodomy law that criminalized He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will. " In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. John Hart Ely ( December 3 1938 - October 25 2003) is one of the most widely-cited legal scholars in United States history ranking just after Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.
The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. "
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Amendment XIV Section 1 Clause 2 of the United States Constitution is known as the Privileges or Immunities Clause. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment. . . . requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause. " The Thirteenth Amendment ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit Slavery, and with limited exceptions such as those But until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law. Abraham Lincoln (February 12 1809 &ndash April 15 1865 the sixteenth President of the United States, successfully led his country through its greatest internal "
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review. Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. Strict scrutiny is the most stringent standard of Judicial review used by United States courts reviewing federal law  In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Rational basis review, in US constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through Judicial review. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of. 
There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case. Intermediate scrutiny, in US constitutional law, is the middle level of scrutiny applied by courts deciding constitutional issues through Judicial review. ”
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Incorporation (of the Bill of Rights is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the In the United States the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925) which was a First Amendment case, and accelerated in the 1940s and 1950s. Gitlow v New York,, was a historically important case argued before the United States Supreme Court in which the Court ruled that the Fourteenth Amendment The First Amendment to the United States Constitution is part of the United States Bill of Rights that expressly prohibits the United States Congress Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States Hugo LaFayette Black (February 27 1886&ndashSeptember 25 1971 was an American politician and jurist. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right". Felix Frankfurter ( November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court John Marshall Harlan (May 20 1899 – December 29 1971 was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971 It was the latter course that the Warren Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states. Earl Warren ( March 19, 1891 July 9, 1974) was the 14th Chief Justice of the United States and the only person ever elected thrice
The basis for incorporation is substantive due process regarding enumerated substantive rights, and procedural due process regarding enumerated procedural rights.  The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. Amendment XIV Section 1 Clause 2 of the United States Constitution is known as the Privileges or Immunities Clause. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughterhouse Cases as a reason why. The Slaughter-House Cases, 83 US 36 ( 1873) were a series of cases decided by the Supreme Court of the United States. Although, the Slaughterhouse Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughterhouse Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would. Akhil Reed Amar (born 1958 is Southmayd Professor of Law at Yale Law School, an expert on Constitutional law and Criminal procedure. Jacob Merritt Howard ( July 10, 1805 &ndash April 2, 1871) was a U John Armor Bingham ( January 21, 1815 &ndash March 19, 1900) was a Republican congressman from Ohio, America . . have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens. "
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it. James Madison Jr (March 16 1751 – June 28 1836 was an American Politician, the fourth President of the United States (1809–1817 and one of the Founding  Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution. Roger Sherman ( April 19, 1721 ( JC) April 30, 1721 ( GC) July 23, 1793) was an early " Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.
Various countries recognize some form of due process under customary international law. In Law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting International law is the term commonly used for referring to the system of implicit and explicit agreements that bind together nation-states in adherence to recognized values and standards Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. National treatment is a principle in Customary international law vital to many Treaty regimes With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing. Human rights refers to the "basic Rights and freedoms to which all humans are entitled A Treaty is an agreement under International law entered into by actors in international law namely States and International organizations.