The ability to review both the substance, as well as the procedure, involving legislation, came to be known as "substantive due process. To many critics, substantive due process allowed judges to substitute their own views on political and social matters in the guise of constitutional interpretation. Substantive due process generally became unimportant after the clash between the U.
Supreme Court and the Franklin Delano Roosevelt administration when various New Deal measures were declared unconstitutional and the President threatened to "pack" the Supreme Court.
The packing effort was unsuccessful; however, President Roosevelt was able to appoint seven justices to the Supreme Court in approximately two years. With some notable exceptions, particularly in the privacy and abortion areas, substantive due process is not a major factor in constitutional adjudication today, but some critics assert that the ability to second-guess legislatures has shifted from this third strand of substantive due process to the Takings Clause. It was to be a quarter century after incorporation of the Takings Clause of the Fifth Amendment that the U.
Supreme Court began working out its application to state and local government actions. In , the U. Supreme Court decided Pennsylvania Coal v.
Mahon , U. This case involved a regulation enacted by the Pennsylvania legislature to prohibit mining of coal under streets, houses, and places of public assembly. The coal company held mineral rights to many properties in northeast Pennsylvania and had sold the surface rights to others. The coal company argued that a taking had occurred under these regulations because it was unable to mine the coal. The U.
Supreme Court agreed and said that, while property may be regulated, if the regulation goes "too far," it constitutes a taking. No compensation was ordered in that case, and the law was deemed invalid. The analysis of the court in Pennsylvania Coal was along the lines of substantive due process.
No later cases discussed this case, or its reasoning, for many years after the decision. At about the same time as the Pennsylvania Coal case, the U. Supreme Court took four cases involving the new land use regulatory technique called "zoning. In Village of Euclid v.
Ambler Realty Co. However, the Court found a zoning ordinance invalid as applied in a particular situation in Nectow v.
The Court decided that because Miranda was a constitutional decision of the United States Supreme Court, Congress exceeded its authority in passing the law. Dred Scott v. What procedures are due Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. The automatic standing rule of Jones v. Main article: Due Process Clause.
City of Cambridge , U. Both of these cases were substantive due process cases and used a substantive due process analysis.
For almost 50 years, the U. Supreme Court did not take a land use regulatory case, but, in the meantime, abandoned its substantive due process analysis. The irony was that all four land use cases that were decided between and undertook a substantive due process, rather than a takings clause, analysis. In , in Penn Central Transportation Co. New York City , U. Supreme Court applied the Pennsylvania Coal takings analysis to determine whether a local government had gone "too far" and announced a three-factor rule to determine whether a taking had occurred.
The Court said it would look at the "economic impact" of the regulation, how the regulation would affect "investment-backed expectations," and the "character of the governmental action. City of Tiburon , U. The first part was whether or not the regulation "substantially advanced a legitimate state interest," and the second was whether the regulation "denied an owner economically viable use of land.
Supreme Court jurisprudence. With regard to conditions involving dedication or transfer of property interests, the U. Supreme Court used the "substantially advanced a legitimate state interest" prong of Agins in Nollan v. California Coastal Commission , 43 U. City of Tigard , U. The Court required that there be an individualized determination, with the burden being on the government, to show that there was a "rough proportionality" between the impacts of the land use proposal and the real property exaction. Williamson County Regional Planning Commission v.
Hamilton Bank , , U.
Further, the U. Supreme Court has determined that either a physical occupation of land either by government itself or by a private person authorized by government, as in Loretto v.
South Carolina Coastal Commission , U. Takings law is confusing and perhaps has developed in a sporadic and contradictory way. Historically, politically, and socially, the arbitrary deprivation of title to property has always touched a raw nerve. Law, particularly constitutional law, develops incrementally.
As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcement—that is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protected—as long as the rules of the game, so to speak, are followed—then the government may, in fact, deprive a person of his life, liberty, or property.
But what if the rules are not fair? What if the law itself—regardless of how it is enforced—seemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Connecticut  , and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. For example, the right to an abortion, established in Roe v.
Wade , grew from privacy rights, which emerged from the penumbras of the constitution. You are using an outdated browser.
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