Flex Your Rights

"As the debate over the markup of the Stop Online Piracy Act continues on Capitol Hill, more technology heavyweights are calling for average netizens to register their discontent with the bill. Companies such as Reddit and Wikipedia are redoubling their efforts in opposing the measure, which aims to target online pirates in part by redirecting Web traffic from sites that host pirated content...

"House lawmakers on Wednesday introduced a bill that would expand the ability of federal law enforcement to shut down foreign Web sites and services that use counterfeited or pirated content created by U.S. firms."

Simon Lazarus argues that Obamacare passes a due process rational basis test. As a result, he claims, the only method conservatives possess to strike down Obamacare is a return to a Lochner reading of substantive due process. However, if they did, Lazarus claims conservatives would sacrifice their jurisprudence ideology to achieve a policy goal.

This piece discusses the institution of the "Military Commissions Act of 2006 (MCA)" and its changes in the intervening years. "Modeled after the Uniform Code of Military Justice (UCMJ) - the code that the U.S. military uses to try soldiers, sailors, airmen, and Marines -- the MCA provides unprecedented rights to alien unlawful enemy combatants at trial. The MCA...

Handling enemy combatants in the war on terror raises interesting procedural due process questions. Mr. Gregory argues that procedural due process rights are necessary to ensure life and liberty and must be upheld even for an alleged terrorist. 

"Americans have seen their freedoms decline on almost every front over the past decade. We have been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any...

Timothy Sandefur articulates the basic concept behind substantive due process. While identifying that some substantive rights are explicitly found in the Constitution and the Bill of Rights, Mr. Sandefur acknowledges the ambiguity regarding implicit rights. In addition, he explains that critics of substantive due process perpetuate a myth by tying the birth of...

"The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be 'deprived of life, liberty or property without due process of law.' The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the...

"Indeed, one of the most important constitutional battles in American history revolved around the phrase 'due process of law' — a battle that would ultimately have an enormous impact on the economic liberty and well-being of the American people." Hornberger discusses various Supreme Court cases concerning the protection of economic liberty provided by the Due Process Clause.

Blackman and Shapiro lay out an oringinalist interpretation of the Privileges or Immunities clause that would displace the messy jurisprudence of substantive due process. The authors claim that the court’s poor decision in Slaughterhouse necessitated the use of substantive due process. An originalist understanding of the Privileges or Immunities clause protects and ensures libertarian natural...

In substantive due process cases the court must determine whether the rights violated by the state are fundamental or non-fundamental rights. If fundamental, the case is reviewed under strict scrutiny. If the right is non-fundamental, the government needs only to demonstrate a rational-basis. Davin Hall identifies the two competing criteria used by the...

Civil asset forfeiture allows law enforcement to seize private property possibly used in a crime. However, to seize and keep your property, the police need only probable cause - a significantly lower burden of proof. In fact, in roughly 80% of cases the respondents are not even charged with a crime. This practice presents a significant challenge to due process...

Most legal histories claim the demise of Lochner inspired substance due process came about during the New Deal. Anthony Sanders argues that these narratives focus on the federal courts. State courts used substantive due process to protect economic liberties long after this time period. However, state courts have recently abandoned substantive due process protection for economic liberties. Mr....

"The meaning of the Due Process Clause is investigated, with special emphasis on the little word 'due.' The author concludes that the text and structure of the Constitution as well as the intentions of the framers strongly support the view of...

"Richard Epstein of the University of Chicago and Stanford University's Hoover Institution talks with EconTalk host Russ Roberts about the rule of law. Epstein lays out a minimalist definition and a more expansive definition when considering the protection that individuals might have when facing the power of the state or the sovereign. Applications include 'takings...

"If a free society depends upon an informed citizenry exercising oversight of its government, then more people need to know how to handle themselves in a police encounter. Is cooperation always the best course of action? Or are there times to assert the constitutional right to refuse consent to a search of one's home or belongings? A new documentary film answers...

"In 2001, Ontario's Progressive Conservative government introduced legislation to allow the Crown to confiscate property that might one day be used in a crime, or that might have been purchased with the proceeds of a crime.

Before the bill was made law, and before hearings were held to get public input on the bill, Freedom Party of Ontario's Paul...

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home, or other property. And according to a new report published...

"For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence. This afternoon, I am honored to be part of this tradition. And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most...

Justice Black is one of the main critics of substantive due process. In his dissent in In re Winship, Black articulates a strict interpretation of due process rights that harkens back to ancient England. He argues that due process is purely procedural, involving only those procedural rights specifically enumerated in the US Constitution. In this...

This case revolved around several murders performed by an allegedly insane man. The case dealt with Due Process of law, but it also had implications for self-defense, for the opinion declared that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen."

"The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court. ... Respondent alleges that petitioner, the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond...

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

Composed before the U.S. Constitution, this document lays out the state of Delaware's view of due process. The document declares that all individuals are entitled "to be protected in the Enjoyment of Life, Liberty and Property," and as such,...

Dred Scott was a slave who, because his owner had moved him to a free state for a period of time, sued for his freedom. The Court held that slaves were not citizens of the United States and therefore not entitled to constitutional protections. And since slaves were considered property, the Court held that their owners could not be deprived of them without due...

In this case the officials of the Village of Newburgh's water facilities created an interruption to the water flow of a property owner. Chancellor Kent argued that the owner's right to due process under New York's constitution was applicable in this case and entitled him to "just compensation," given that a taking of private property had occurred: "It is a clear...

This case revolved around whether or not government officials could end a recipient's welfare assistance without advance warning. The Supreme Court determined that such a move was a violation of due process.

Justice Harlan outlines his argument for a broad understanding of substantive due process. He refuses to join the majority decision because it relied on the violation of other rights. He argues that due process rights are broad, found in natural law, but that a proper understanding of our history and societal values will prevent judicial activism using due process...

James Wilson, while arguing against the Bill of Rights, espouses a natural rights view. He claims that since the federal government was not granted any power to seize life, liberty or property, specific protections of rights granted by due process are unwarranted. His speech suggests that the theory behind substantive due process was already present during the...

A recent Supreme Court decision in which the Due Process Clause played a major role was Lawrence v. Texas. This case revolved around the anti-sodomy laws in one of the nation's largest states. The High Court held that "[t]he Texas statute making it a crime for two...

"I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be...

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

This chapter in the Magna Carta...

"1. As a basis for attacking a discriminatory regulation of prices, under the equal protection clause of the Fourteenth Amendment, the party complaining must show that he himself is adversely affected by it.

2. A regulation fixing the price at which storekeepers may buy milk from milk dealers at a higher figure than that allowed dealers in buying from producers, and allowing dealers a...

In this case, the Society of Sisters, which ran a private religious school, brought suit against the state of Oregon for requiring that all children of a certain age attend public school. The Court ruled Oregon's law unconstitutional under the due process clause of the 14th Amendment.

"Principles of Politics, first published in 1815, is a 'microcosm of [Constant's] whole political philosophy and an expression of his political experience,' says Nicholas Capaldi in his Introduction. In Principles, Constant 'explores many subjects: law, sovereignty, and representation; power and accountability; government, property and taxation; wealth and poverty...

This section of Edward Coke's Second Institute declares that every subject of the land has access to a quick, judicious process regardless of the individual's state or stature.

Nadine Strossen argues that civil asset forfeiture is unjust because, while criminal forfeiture defendants are granted due process, no such rights exist under civil forfeiture. According to Strossen the current civil forfeiture policy makes a mockery of the fundamental intent of due process. While the ACLU seeks the eventual abolishment of civil asset forfeiture,...

Noted orator Daniel Webster articulates to the Supreme Court the legal theory behind substantive due process during the hearing of Dartmouth Trustees V. Woodward. First, Webster claims that New Hampshire's legislators do not possess the power to abridge...

Sir Coke interprets the 29^th chapter of the Magna Carta, equating the law of the land with due process. For the vast majority of the discussion, Coke treats due process as a procedural right. For instance, he claims Magna Carta provides a right to trial by peers. However, he slightly hints at substantive rights during his discussion of monopolies as...

This case is generally said to have ended the Lochner era of Supreme Court decisions protecting economic liberties utilizing substantive due process reasoning. It upheld a "statute of the State of Washington ... providing for the establishment of minimum wages for women."

"In this book, Edward Keynes examines the fundamental-rights philosophy and jurisprudence that affords constitutional protection to unenumerated liberty, property, and privacy rights....

"Flex Your Rights (Flex), a 501(c)(3) educational nonprofit, was launched in 2002. Our mission is to educate the public about how basic Bill of Rights protections apply during encounters with law enforcement. To accomplish this, we create and distribute the most compelling, comprehensive and trustworthy know-your-rights media available."