![]() 2 Footnote See supra Bill of Rights, The Fourteenth Amendment and Incorporation. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the “incorporation” of fundamental rights. serves as the basis for some of the most significant constitutional holdings of our time. This analysis, criticized by some for being based on extra-constitutional precepts of natural law, 1 Footnote See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: 1977). ![]() The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including “fundamental rights,” “privacy rights,” “liberty interests” and “incorporated rights.” The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation.Ī counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. Amdt5.4.5.2.1 Substantive Due Process: General Approach
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