Substantive Due Process Analysis

The Supreme Court of the United States uses substantive-due-process analysis to determine the constitutionality of criminal laws. It had its beginning in a civil case. This analysis is determine the meaning of liberty to do this or that. What is a crime is or is not a liberty interest, historical and traditional, accepted by the majority to be fundamental.

Criminal laws were vacated by SCOTUS by this analysis. Criminal laws that were not overturned were declared a political question. Judicial review of criminal laws, has been rational basis, a political question. Marijuana et al, assisted suicide, abortion.

SCOTUS abused its authority declaring criminal laws are a political question violating Article III’s case and controversy. The only ruling they could make is the failure of a case to raise a claim of injury to a constitutional right to which relief could be granted. Like being arrested and deprived of liberty. This is a result of ineffective assistance of counsel.

The operation and effect of police power, creates an Article III case and controversy. Judicial review is strict scrutiny. The millions of us who have been arrested for marijuana had standing to question the constitutionality of proscription of marijuana. Being arrested is an actual injury to our liberty. Seizing marijuana was deprivation of property. The rule of law is that no person shall be deprived of life, liberty, and property without due process of law, without compelling reasons. The rule of law is the “right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizure shall not be violated.’

SCOTUS has demeaned liberty from its original meaning freedom from physical restraint in 1876. Thus, it has unofficially suspended applications for writ of habeas corpus. Seeking a writ of habeas corpus was to determine the constitutionality of the law that cause a person detention. The operation and effect of police power is the seizure of person and deprivation of liberty.

The meaning of liberty, the substance of liberty appeared in this first case.

1876 Munn v. Illinois, 94 U.S. 113, 142 (1876) This was not a criminal case.

Liberty meaning more than physical restraint appears in Munn v. Illinois, 94 U.S. 113, 142 (1876) Justice Stephen J. Field, dissenting. “By the term ‘liberty,’ as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness -- that is, to pursue such callings and avocations as may be most suitable to develop his capacities and give to them their highest enjoyment.”

1897 Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897)This and the following were criminal cases

The "liberty" mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

2003 Lawrence v. Texas 539 U.S. 558 (2003)

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

1997 Washington v. Glucksberg 521 U.S. 702, 719 -721

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) (Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them''') (quoting Daniels v. Williams, 474 U. S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U. S. 292, 301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U. S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U. S. 390(1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U. S. 479 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U. S. 438 (1972); to bodily integrity, Rochin v. California, 342 U. S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U. S., at 278-279.

But we "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Collins, 503 U. S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion).

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2003 Lawrence v. Texas 539 U.S. 558 (2003)

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.