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View Full Version : Legal Scholars: Difference between Substantive Due Process and Equal Protection


bronco0608
02-08-2011, 04:28 PM
This is very confusing to me. How in heck does this work? Equal Protection is applied to the states from the 14th amemendment? So, if I am correct, Equal Protection protects fundamental rights like the right to procreate, marry and so forth? Equal protection is what is says. You can't pass laws that treat people differently. Is that right?

Where does substantive due process come in? I know procedural due proces is that the government can't take a property right from you without a hearing before an unbiased tribunal. Got that.

But substantive due process? Where does that come in. And are any right associated with it?

I can't figure this out.

tsiguy96
02-08-2011, 04:45 PM
This is very confusing to me. How in heck does this work? Equal Protection is applied to the states from the 14th amemendment? So, if I am correct, Equal Protection protects fundamental rights like the right to procreate, marry and so forth? Equal protection is what is says. You can't pass laws that treat people differently. Is that right?

Where does substantive due process come in? I know procedural due proces is that the government can't take a property right from you without a hearing before an unbiased tribunal. Got that.

But substantive due process? Where does that come in. And are any right associated with it?

I can't figure this out.

thats probably the point. make contradictory laws so they can rule whatever they want and have a source for it.

That One Guy
02-08-2011, 05:21 PM
Well I'm not a lawyer but I did stay at a Holiday Inn last night...

meangene
02-08-2011, 05:29 PM
The fourteenth amendment is a safeguard for citizens against states and contains both a Due Process Clause and Equal Protection Clause. The Supreme Court has not adopted the view that all of the Bill of Rights (first eight amendments) are incorporated into the Due Process Clause of the fourteenth amendment and thus applicable to the states. Those that have been deemed applicable to the states are: the first amendment guarantees (speech, press, assembly, right to petition, free exercise, non-establishment of religion); some of the fifth amendment (self-incrimination, compensation for the taking of property), the sixth amendment (speedy and public trial by jury, right to confront witnesses, right to counsel), and the eighth amendment (cruel and unusual punishment, bail). Equal Protection prevents the states from discriminating against citizens within it's jurisdiction when it comes to essential activities or basic rights without substantial justification. These would include pursuit of livelihood, transfer of property, or federally protected interests, among others. It also requires the state have jurisdiction over a person to affect these rights - i.e. subject to the personal jurisdiction of the state. Procedural due process requires some fair procedure for government to take a person's life, liberty or property.

Hope this helps!

Archer81
02-08-2011, 05:35 PM
This thread is useless without tits.


:Broncos:

broncogary
02-08-2011, 05:46 PM
Well I'm not a lawyer but I did stay at a Holiday Inn last night...


That right there's your problem, boy. You should have stayed at a Holiday Inn Express. Ha!

bronco0608
02-08-2011, 05:49 PM
The fourteenth amendment is a safeguard for citizens against states and contains both a Due Process Clause and Equal Protection Clause. The Supreme Court has not adopted the view that all of the Bill of Rights (first eight amendments) are incorporated into the Due Process Clause of the fourteenth amendment and thus applicable to the states. Those that have been deemed applicable to the states are: the first amendment guarantees (speech, press, assembly, right to petition, free exercise, non-establishment of religion); some of the fifth amendment (self-incrimination, compensation for the taking of property), the sixth amendment (speedy and public trial by jury, right to confront witnesses, right to counsel), and the eighth amendment (cruel and unusual punishment, bail). Equal Protection prevents the states from discriminating against citizens within it's jurisdiction when it comes to essential activities or basic rights without substantial justification. These would include pursuit of livelihood, transfer of property, or federally protected interests, among others. It also requires the state have jurisdiction over a person to affect these rights - i.e. subject to the personal jurisdiction of the state. Procedural due process requires some fair procedure for government to take a person's life, liberty or property.

Hope this helps!

Awesome, meangene. Ok, so I got the Equal Protection part down.

Now, where does Substantive not Procedural due process come in?

Substantive due process. Where is that power derived from? And what is it? Does it even matter?

My thing is, how exactly is it different from equal protection?

Ray Finkle
02-08-2011, 05:49 PM
paging Socal.....oh wait, isn't he an ambulance chaser ?

I kid, I kid....

tsiguy96
02-08-2011, 05:53 PM
This thread is useless without boobies.


:Broncos:

correct word???

Rohirrim
02-08-2011, 05:56 PM
When you guys are done with this, I'd like to hear a little more about strict liability.

bronco0608
02-08-2011, 06:02 PM
When you guys are done with this, I'd like to hear a little more about strict liability.

In a products case? Criminal conduct? Wild Animals? Ultrahazardous activity?

Which one.

That One Guy
02-08-2011, 06:04 PM
In a products case? Criminal conduct? Wild Animals? Ultrahazardous activity?

Which one.

Hey!

SirH was next in line asking for boobies.

Irish Stout
02-08-2011, 06:06 PM
In a products case? Criminal conduct? Wild Animals? Ultrahazardous activity?

Which one.

I would like to hear about strict liability in criminal conduct. A legal concept I've never incountered.

bronco0608
02-08-2011, 06:06 PM
Hey!

SirH was next in line asking for boobies.

http://files.sharenator.com/epic_boobs_lesbian_demotivational_poster_the_2_bes t_things_in_life-s440x352-16935-580.jpg

real or unreal? gotta be fake

bronco0608
02-08-2011, 06:08 PM
I would like to hear about strict liability in criminal conduct. A legal concept I've never incountered.

If you sell beer to a minor, you are strictly liable. No defenses available.

Irish Stout
02-08-2011, 06:10 PM
Awesome, meangene. Ok, so I got the Equal Protection part down.

Now, where does Substantive not Procedural due process come in?

Substantive due process. Where is that power derived from? And what is it? Does it even matter?

My thing is, how exactly is it different from equal protection?

Read what he wrote again, it covers substantive due process well. Substantive Due Process is not literally procedural, it is simply when any amendment action is applied as against the states through the 14th amendment rather than the Fed courts without the 14th.

bronco0608
02-08-2011, 06:10 PM
Also, i think statutory rape is strict liability. Doesn't matter if the girl told you she was 19 and showed you a fake ID before you hit it. If the girl is underage and you hit it, you going to jail.

No defenses. Strictly liable.

bronco0608
02-08-2011, 06:15 PM
Read what he wrote again, it covers substantive due process well. Substantive Due Process is not literally procedural, it is simply when any amendment action is applied as against the states through the 14th amendment rather than the Fed courts without the 14th.



My head hurts.

Why can't i get this.

meangene
02-08-2011, 06:15 PM
Awesome, meangene. Ok, so I got the Equal Protection part down.

Now, where does Substantive not Procedural due process come in?

Substantive due process. Where is that power derived from? And what is it? Does it even matter?

My thing is, how exactly is it different from equal protection?

Substantive due process relates to all those enumerated rights I mentioned in the Due Process clause of the fourteenth amendment in regard to the states and those in the Bill of Rights in regard to the federal government. Challenges regarding substantive due process relate to protection of those basic liberties. Procedural due process relates to fair procedures for depriving someone of their life, liberty or property. Challenges regarding procedural due process relate to the fairness of those procedures as opposed to deprivation of the basic liberties themselves. In regard to the federal government, due process comes from the fifth amendment. In regard to the states, due process comes from the fourteenth amendment.

bronco0608
02-08-2011, 06:24 PM
Substantive due process relates to all those enumerated rights I mentioned in the Due Process clause of the fourteenth amendment in regard to the states and those in the Bill of Rights in regard to the federal government. Challenges regarding substantive due process relate to protection of those basic liberties. Procedural due process relates to fair procedures for depriving someone of their life, liberty or property. Challenges regarding procedural due process relate to the fairness of those procedures as opposed to deprivation of the basic liberties themselves. In regard to the federal government, due process comes from the fifth amendment. In regard to the states, due process comes from the fourteenth amendment.

Just googled this:


SUSTANTIVE DUE PROCESS: (Law Affects All)

Scope:
1) Determination that the substance of a law [the restrictions that the regulation seeks to impose] affecting ALL people is VALID under the Constitution.

2) Generally, most substantive issues are reviewed under Equal Protection grounds.
-------------------------------------------------------------

Now, reviewed under Equal Protection grounds? This is where you levels of review come in?

So equal protection is part and parcel of Substantive due process?

meangene
02-08-2011, 06:24 PM
Strict liability is a civil or criminal concept in which you are responsible for your actions whether or not you are culpable. In civil cases, it means you are liable for damages whether or not you are negligent. It usually applies to ultra-hazardous activities. In criminal law, it means you are responsible for your actions whether or not you had intent. Usually it's not called strict liability in criminal law but the result is the same - guilty.

BroncoLifer
02-08-2011, 06:25 PM
Another difference: The Constitution actually contains the phrase "Equal Protection." Substantive Due Process? Not so much. Invented by dudes in black robes.

meangene
02-08-2011, 06:33 PM
Just googled this:


SUSTANTIVE DUE PROCESS: (Law Affects All)

Scope:
1) Determination that the substance of a law [the restrictions that the regulation seeks to impose] affecting ALL people is VALID under the Constitution.

2) Generally, most substantive issues are reviewed under Equal Protection grounds.
-------------------------------------------------------------

Now, reviewed under Equal Protection grounds? This is where you levels of review come in?

So equal protection is part and parcel of Substantive due process?

Yes, your levels of review come into play with equal protection and, yes, equal protection goes hand in hand with due process in the sense that your rights are defined by due process and protected against discrimination by equal protection.

bronco0608
02-08-2011, 06:43 PM
Yes, your levels of review come into play with equal protection and, yes, equal protection goes hand in hand with due process in the sense that your rights are defined by due process and protected against discrimination by equal protection.

Hmm, I'm sort of there (not really). Thanks for all your help, though. I appreciate it.

meangene
02-08-2011, 07:01 PM
Hmm, I'm sort of there (not really). Thanks for all your help, though. I appreciate it.

No problem. It's not an easy subject.

Mountain Bronco
02-09-2011, 10:53 AM
Law students spend about 6 months of their lives trying to understand these concepts and I would say about half of them never get it, so it is unlikely you are going to fully understand based on a thread on the OM.

Good info in here though.

gyldenlove
02-09-2011, 11:31 AM
Law students spend about 6 months of their lives trying to understand these concepts and I would say about half of them never get it, so it is unlikely you are going to fully understand based on a thread on the OM.

Good info in here though.

Understanding the broad implications and concepts can be achieved by anyone, understanding the nuances, applications, philosophy and history are a different matter and something many scholars will never achieve.

I believe everyone here has the ability to understand that quantum mechanics replaces absolute knowledge of observables with probability and removes the possitibility of observables taking any value but rather limits them to certain values that follow simple arithmatic rules. But I very much doubt that more than a few people on this board can sit down work through the solution to the orbitals of the hydrogen atom.

bronco0608
02-09-2011, 01:35 PM
I believe everyone here has the ability to understand that quantum mechanics replaces absolute knowledge of observables with probability and removes the possitibility of observables taking any value but rather limits them to certain values that follow simple arithmatic rules. But I very much doubt that more than a few people on this board can sit down work through the solution to the orbitals of the hydrogen atom.

Hilarious!

http://knowyourmeme.com/i/151/original/n725075089_288918_2774.jpg