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Copyright (c) 1990 University of Wisconsin Law School
Wisconsin Law Review


July, 1990/August, 1990

1990 Wis. L. Rev. 941




Of the great rights we celebrate with the approaching bicentennial of the Bill of Rights, none has more current significance than the right to due process of law. 1 This was not always true. The fifth amendment due process clause was seldom litigated during the early decades of the republic and was not authoritatively construed until 1855. 2 Even when the fourteenth amendment made due process applicable to the states in 1868, its potential as a limitation upon governmental action only gradually became apparent. 3 Since the turn of the century, however, due process has come into its own as a great bulwark of individual rights.

The most controversial aspect of this development has been substantive due process -- the doctrine that the due process clauses of the fifth and fourteenth amendments protect substantive as well as procedural rights. Under the procedural component of the due process clause, courts and other tribunals are constrained to act by fair procedures. By virtue of the substantive component, courts identify fundamental values not explicit in the Constitution, translate them into substantive rights and then deny to government -- including legislatures -- the power to infringe those rights without some compelling justification. 4

Advocates of a living Constitution have not hesitated to find in due process a source of evolving rights to cope with evolving problems of modern society, 5 while critics have treated substantive due process as a textually unwarranted judicial gloss on the Constitution. 6 The doctrinal argument against substantive due ...
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