To: definitelynotaliberal
If anyone could explain how "substantive due process" is oxymoronic, I would appreciate it. I thank you in advance.
I'll take a quick shot at it. The term "due process" is by definition solely about the "process" which must be followed before you can be deprived of a life, liberty or property interest (per the Fifth Amendment, as applied to the states by the Fourteenth Amendment). I.e., it is purely "procedural", and that is the more traditional due process concept - "procedural due process".
Given the plain language focuses solely on process, Thomas's point is that there must be another underlying source of the life, liberty or property interest and that the Amendment itself does not provide any additional substantive legal rights beyond the procedural. Hence the view that "substantive due process" is an oxymoron.
"Substantive due process" jumps the hurdle and reads into the Amendment that the Amendment itself can inherently be a foundation for a life, liberty or property interest - i.e., a "substantive" component. The criticism is that you end up with an unbounded ability of judges to read all sorts of substantive "rights" into the Amendment, which by its terms solely applies to procedure.
To: rockvillem
3 posted on
06/29/2022 4:10:09 AM PDT by
grame
(May you know more of the love of God Almighty this day!)
To: rockvillem
Yes. You have nailed the oxymoron to the wall. Well done, Sir! (or Ma’am.)
10 posted on
06/29/2022 5:20:26 AM PDT by
Thommas
(The snout of the camel is already under the tent.)
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