Illinois and further developed in the Lochner v. The theory of Substantive Due Process as a theory stemmed out of Munn v. Substantive Due Process is oxymoronic in the sense that how can two distinguishably opposite categorization of law be combined. Laws has always been divided into Substance and Procedures. The ‘Due Process’ clause in the constitution, as the name suggests, only guarantees only that the such inhibition or restraint be procedurally fair and makes no mention of any substantive grounds. This of course isn’t true.Ī woman's freedom to choose an abortion is part of the 'liberty' the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. The basic premise of this theory is that some rights are of such great significance that no legal procedure, not even legislative means, could ever be enough to revoke them. However, here is where the newly minted theory of Substantive Due Process comes into play. It is possible for someone to be deprived of all of these things, but not without following the appropriate legal procedures or ‘Due Process’. …nor shall any State deprive any person of life, liberty, or property, without due process of law.Ĭlearly, these two provisions provide a guarantee, but not of life, liberty, or property.

The same due process clause is also found in the Fourteenth Amendment of the United States Constitution which applies at the state level: be deprived of life, liberty, or property, without due process of law.

There is a due process clause in the Fifth Amendment of United States Constitution which applies at the federal level and states the following: This theory is known as the theory of substantive due process. However, the theory that was used to justify implementing that judgment is one without any proper historical or jurisprudential foundation.

Although, the majority of people are aware of it due to the fact that it recognized and held that the right to abortion as a fundamental right. Wade was and continues to be one of the most contentious legal decisions that has ever been made.

Due process game