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Substantive Due Process Pros And Cons

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WEEK #5 – Substantive Due Process
To begin the discussion, I must point out the grounding of the application of “due process”. The Fourteenth and the Fifth Amendments both address due process and are nearly identical. The Fourteenth Amendment was specific in limiting the actions of State (and local) governments. The Fifth Amendment has been interpreted by the courts as limiting the reach of the Federal Government. The Fourteenth Amendment was added as part of the Civil War amendments to prevent the racial discrimination post-Civil War.
There are two forms of due process procedural and substantive. Procedural due process protects the government from taking a person’s, “Life, Liberty, or Property without due process of law” ("Right to Due Process," n.d.). This means that the government must inform the affected party of what they intend to do, and allow them to respond to the proposed action. There are many social service benefits that are controlled by due process, eliminating welfare benefits, cut social security payments, or eliminate TANF payments, however each of these requires certain procedures be followed. At times these procedures require a hearing before an impartial person, with benefit of all the rights leading to appeal of the decision. …show more content…

This could be, for example, when a law infringes on the persons first amendment rights, right to vote, or makes a racial or sexual classification. The courts will determine if the government has a “compelling” reason to enact the law and “strictly scrutinize” the reasons. If the court determines the government has acted in an arbitrary or irrational manner the court will likely strike the law. Substantive due process is being asserted in legislation affecting issues such as, religion, child-birth, child-rearing, sexuality, and

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