Abstract: Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject of passionate debate and varying interpretation ever since its ratification in 1868. Recognizing the level of confusion that the due process clause produces, it may well be asked whether substative due process is a contradiction of terms. The text of various documents spanning the history of Western Civilization and more than two-hundred state cases from the years immediately surrounding the Fourteenth Amendment's ratification suggests the following conclusion: substantive due process is a contradiction of terms or, at minimum, an interpretation of the due process clause that goes well beyond what was originally intended to mean. In support of this conclusion, this Article considers the language of the due process clause as it has existed at various points throughout history, as well as analyzing the meaning that judges, legislatures, scholars, and kings have given these words.
Citation: 10 Nev. L.J. 1 (2010)