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Substantive Due Process
To say that governmental action violates "substantive due process" is to say that the action, while adhering to the forms of law, unjustifiably abridges the Constitution's fundamental constraints upon the content of what government may do to people in the name of "law." As the Supreme Court put the matter most succinctly in HURTADO V. CALIFORNIA (1884), "Law is something more than mere will exerted as an act of power.? [It] exclud[es], as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation ? and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."Substantive due process thus restricts government power, requiring coercive actions of the state to have public as opposed to merely private ends, defining certain means that government may not employ absent the most compelling necessity, and identifying certain aspects of behavior which it may not regulate without a clear showing that no less intrusive means could achieve government's legitimate public aims.The phrase DUE PROCESS OF LAW derives from King John's promise in MAGNA CARTA to abide "by the law of the land," as translated four centuries later by Sir EDWARD COKE. But the belief that even the sovereign must follow a HIGHER LAW can be traced further back still. Even before the Middle Ages, kings symbolically acknowledged their limitations when they accepted their crowns; royal coronations were religious rites in which the rulers supposedly received power directly from God. The medieval notion of a divine law that even the sovereign might not transgress lay at the heart of EnglishSee the full content of this document
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