Skip to main content

http://www.yalelawjournal.org/pdf/922_gvpzasif.pdf Please write a summary of the article.

This article is about which rights are protected under the Due Process Clauses of the 5th and 14th Amendments to the Constitution. The essential question related to this debate is whether these amendments only protect "procedural rights," which refers to the process that states and the federal government follow in judicial proceedings, or whether these clauses also protect what are called "substantive rights," which are the actual rights given to individuals.


The author of this article, Williams, looks at the historical context in which each of these amendments was written. He argues that when the 5th Amendment was ratified in 1791, there was no recognition of substantive due process rights. He writes: 






"The preceding review of the historical evidence regarding the early understandings of 'due process of law' is largely supportive of the traditional view that the Due Process Clause of the Fifth Amendment was originally understood either not to constrain the legislature at all, or, at most, to limit the legislature’s discretion in prescribing certain modes of judicial procedure" (page 454).






However, by 1868, when the 14th Amendment was ratified, there was a form of substantive due process rights recognized by courts in at least 20 out of the then 37 states and by the Supreme Court. The author writes that in the period from 1791 to 1868:






"Due process concepts evolved dramatically through judicial elaboration of due process and similar provisions in state constitutions, and through invocations of substantive due process arguments by both proslavery and abolitionist forces in connection with debates concerning the expansion of slavery in the federal territories" (page 416).






That is, by the time the 14th Amendment was ratified, many state constitutions recognized a form of substantive due process rights.


However, the judicial system has often assumed that the due process rights in both amendments are the same. Instead, the author argues for what he calls the "divergent meanings model" of the Due Process Clauses of the 5th and 14th Amendments, meaning that the original meanings of the clauses in both amendments were not the same. 

Comments

Post a Comment

Popular posts from this blog

etymology - Origin of the greeting "Sweet dreams".

Does anybody know the etymology of the phrase "sweet dreams"? I tried googling but did not find anything satisfying. Is this a relatively new phrase of the modern world or has this been in use for some time? I think it's the latter one. Answer The OED has the interjection as "a farewell to someone going to bed" from the 20th century: 1908 Sears Roebuck Catal. 198/1 Tenor Solos..Good Bye, Sweet Dreams, Good Bye. But it goes back until at least the 19th and possibly 18th centuries. John Wolcot, writing under the pseudonym of Peter Pindar, used it in his poem "Orson and Ellen; A Legendary Tale" published in 1801: Also from 1801 in The infernal Quixote (Page 287) by Charles Lucas: In the March 1776 of The Universal Magazine was published "The Serenade. A Pastoral Tale. From the German of Gesner" , where the shepherd Daphnis watches over his beloved as she sleeps and sings: The same tale appears in 1776's as Idyl XI, " Daphnis ...
Post a Comment
Read more

Is there a word/phrase for "unperformant"?

As a software engineer, I need to sometimes describe a piece of code as something that lacks performance or was not written with performance in mind. Example: This kind of coding style leads to unmaintainable and unperformant code. Based on my Google searches, this isn't a real word. What is the correct way to describe this? EDIT My usage of "performance" here is in regard to speed and efficiency. For example, the better the performance of code the faster the application runs. My question and example target the negative definition, which is in reference to preventing inefficient coding practices. Answer This kind of coding style leads to unmaintainable and unperformant code. In my opinion, reads more easily as: This coding style leads to unmaintainable and poorly performing code. The key to well-written documentation and reports lies in ease of understanding. Adding poorly understood words such as performant decreases that ease. In addressing the use of such a poorly ...
Post a Comment
Read more

What are the similarities between the relationships of the characters in The Outsiders and Romeo and Juliet?

At first glance, it might appear as if the characters in  The Outsiders  by S. E. Hinton and  Romeo and Juliet  by William Shakespeare do not have much in common; however, when one isolates the core of the conflicts, it becomes clear that the relationships in both stories are rooted in rivalry and secrecy.  In both  The Outsiders  and  Romeo and Juliet , an overarching theme is rivalry. While   socioeconomic status separates the greasers from the Socs in The Outsiders , last names separates the Montagues from the Capulets, who appear to be relatively equal in terms of socioeconomic status. Due to these rivalries, there are instances of deadly interactions in both stories. In  The Outsiders , Johnny kills Bob (whether his actions were justified or not is debatable). In  Romeo and Juliet , Romeo kills Tybalt and Paris, and Tybalt kills Mercutio. These deaths have profound effects on the main characters. In Ponyboy's case, the Johnny's death and other events in the novel inspire h...
Post a Comment
Read more