Document Type

Research Paper

Publication Date



Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one that is dedicated to safeguarding individual liberties. However, others believe that increased skepticism towards substantive due process can be attributed to the Supreme Court becoming more cautious about public opinion. This skepticism is also rooted in concerns about political or legal ideological preferences from the Court in cases involving individual liberties. Regardless of the cause of these concerns, any decisions grounded upon substantive due process will likely become the subject of heated controversy. Therefore, it is prudent to explore alternative options in important civil rights cases. Many legal scholars contend that other options do exist, such as the privileges or immunities clause, that would permit the Court to reach an equivalent verdict to what it would have under substantive due process, but with an additional veneer of legitimacy tacked on. It is suggested that these and other creative alternate approaches may help build consensus in decision making.


Due Process; Law; Liberty; Individual rights; Natural Rights; Warren Court; Constitution; Fourteenth Amendment


Constitutional Law | Courts | Fourteenth Amendment | Judges | Jurisprudence | Law and Philosophy | Law and Politics | Legal History | Supreme Court of the United States

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331 KB