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Article: The oxymoron reconsidered: myth and reality in the origins of substantive due process.
- Article from:
- Constitutional Commentary
- Article date:
- June 22, 1999
- Author:
CopyrightCOPYRIGHT 1999 Constitutional Commentary, Inc. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group. (Hide copyright information)
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The view that the due process clauses of the Constitution impose substantive restraints on governmental power has long been a subject of contention. It has become an article of faith in some quarters that due process pertains entirely to matters of procedure. Thus, John Hart Ely maintained: "[W]e apparently need periodic reminding that `substantive due process' is a contradiction in terms--sort of like `green pastel redness.'"(1) Other observers have also derided substantive due process as an "oxymoron."(2) Similarly, Robert H. Bork considers substantive due process to be "a momentous sham" that "has been used countless times since by judges who want to write their ...