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What is substantive due process?

When you face criminal charges in New York, you have certain rights guaranteed to you under the U.S. Constitution. Specifically, the 14th Amendment and the right to due process. This basically means that legal authorities will uphold your rights when pursuing you for a crime. There is a related concept that is often argued about by legal professionals called substantive due process.

According to CATO Unbound, substantive due process is an abstract idea not directly found in the constitution but rather implied by it. The idea is rooted in how every action taken against you requires that whoever does it, does so in a lawful way. Essentially, you have a right to not have your life, liberty or property taken away in a manner that is not lawful. Substantive due process differs from due process in that due process is about procedure whereas substantive is about the adherence to the law.

Some opponents argue that the difference in due process represents the legal right to punish criminals or impose laws while substantive due process is about fairness, and they feel the constitution does not regulate fairness. In addition, they feel since the constitution directly states due process of law and not substantive due process that it is an idea made up by legal professionals more than an actual legal concept.

The debate is something likely to continue as everyone looks at the law and the constitution in different ways. It leaves a lot of interpretation up to legal experts to determine the meaning of what it says. This information is for education and is not legal advice.

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