Talk:Substantive due process

Development of Griswold v. Connecticut

With regard to the ninth paragraph of the section entitled "Development and use of substantive due process as a legal doctrine," the paragraph discussing the progeny of Griswold v. Connecticut, I note that the Kansas Supreme Court once went so far in following Griswold as to declare the existence of a generalized "right of personal privacy in therapy for physical and psychological disorders" that went well beyond mere reproductive rights. Citation: State v. Hughes, 246 Kan. 607, Court's Syl. 2 and at 617-619, 792 P.2d 1023 (1990). Ian4all (talk) 01:48, 4 May 2009 (UTC)

Added mention of incorporation--it's an important aspect of substantive due process that is often overlooked by critics. —Preceding unsigned comment added by 71.65.201.52 (talk) 22:41, 18 April 2010 (UTC)

Is this appropriate phrasing?

I am not a constitutional scholar (thus why I found myself on this page looking for information). Nonetheless, I found the following paragraph troublesome:

Social conservatives who reject sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:

Two things stand out as problematic to me. First, the phrase "can nevertheless find some things to like" seems like weasel words to me, and I don't think "like" is a clear enough word in this context. Second, I'm not sure that we can, with certainty, equate "social conservatives who reject sexual privacy rights" with "religious parents" opposed to mandatory public schooling; while I'm sure the two groups often overlap, I'm not sure they are so clearly or universally equivalent that, without citation, the logic of this paragraph necessarily follows

Is there anyone out there with more experience in this field who could address whether or not this paragraph is acceptable? —Preceding unsigned comment added by Qwyrxian (talk • contribs) 02:28, 27 May 2010 (UTC)

In order to address the above concerns, I have edited that section; as before, I am more than willing to hear input from other editors as the content itself is a bit outside my realm of expertise. Qwyrxian (talk) 02:44, 22 June 2010 (UTC)

Abbreviations

Is there a source that supports the use of SDP and PDP as abbreviations? They make, at least for the layman, the article hard to read. Jd2718 (talk) 17:09, 7 May 2011 (UTC)

Plea bargaining

I'd like to add in a section on substantive due process and the plea bargaining process if no one would mind it. Malke 2010 (talk) 17:00, 29 April 2012 (UTC)

Enforceability

The article makes the claim that the Supreme Court's authority to enforce unenumerated rights incorporated via substantive due process is "not clear." To support this claim, it cites a single law review article. While I didn't read the entire 66 page article, at no point does it use any form of the word "enforce" in the context of questioning whether the court has the authority to hold that additional unenumerated rights are protected by the Due Process clause.

The use of the term 'enforcement' doesn't really make any legal sense here to begin with. Courts don't "enforce" anything - that's the executive's job. Courts issue opinions. If this claim in the article means to imply that Supreme Court decisions reading new unenumerated rights are not good law because they are outside the court's authority, then that is an extraordinary claim that needs much better support from source citations. The Supreme Court's authority to interpret the Constitution and invalidate laws that it views as inconsistent with that interpretation has not been seriously questioned in American jurisprudence since Marbury v. Madison was decided in 1803. I have never heard even the most vocal critic of substantive due process jurisprudence (and believe me, there are plenty of critcs) claim that the Supreme Court lacks the legal authority to adopt such an interpretation of the Due Process Clauses. They simply argue that the Court has chosen to adopt the *wrong* interpretation.

205.178.27.71 (talk) 01:01, 1 May 2014 (UTC)

Conceptual basics [citation needed]

What kind of citation is needed? The request for a citation is followed by the citation of Carolene Products footnote 4. What ... is being asked??? Is it asking for a citation that the Carolene Products footnote is a/the source of the topic "substantive due process"? ( Martin | talk • contribs 19:31, 25 April 2015 (UTC))

unenumerated rights

A problematical phrase, as Ronald Dworkin pointed out in Freedom's Law. There is no exhaustive list of rights, and therefor no enumeration of them; certainly no enumeration using the positive integers.

Many of the Bill of Rights amendments, which seem to be construed as a list of rights, rather place entire subject matters beyond the scope of Federal inquiry legislation and jurisdiction. How many rights can we say are to be counted in the First Amendment? Whereas the Third amendment, about quartering soldiers, may be counted as one, possibly because of the desire to put that abuse squarely behind us as a people, and for which reason it has played scant role in judicial history. Certainly the prohibition against cruel and unusual punishment was not intended to establish as a standard the sensibilities of the colonial period. Rather, I think, it was a warning to government not to be be seen as cruel and capricious by the people. That such a warning should be needed to be stated explicitly only attests to the long history of depravity in incarcerations, ever since 1215 - the Magna Carta, a prison reform measure. ( Martin | talk • contribs 19:49, 25 April 2015 (UTC))

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