Many rights that Americans cherish today go unmentioned in the U.S.
Constitution. Where do these freedoms come from? John V. Orth
answers that question in this unique and gem-like history of due
process.
No person's life, liberty, or property may be taken without "due
process of law." What exactly that means has been one of the most
frequently asked questions in American constitutional history.
Today, the answer is usually given in two parts: what procedures
the government must follow and-in exceptional cases-what the
government cannot do even if it follows the proper procedures. The
procedural aspect of this answer has been far less controversial
than "substantive due process," which at one time limited
government regulation of business and today forbids the states from
outlawing abortions.
"Due process of law," as a phrase and as a concept, was already
old at the time it was adopted by American constitution-writers,
both state and federal. Mindful of the English background and of
constitutional developments in the several states, Orth in a
succinct and readable narrative traces the history of due process,
from its origins in medieval England to its applications in the
latest cases.
Departing from the usual approach to American constitutional
law, Orth places the history of due process in the larger context
of the common law. To a degree not always appreciated today,
constitutional law advances in the same case-by-case manner as
other legal rules. In that light, Orth concentrates on the general
maxims or paradigms that guided the judges in their decisions of
specific cases. Uncovering the links between one case and another,
Orth describes how a commitment to fair procedures made way for an
emphasis on the protection of property rights, which in turn led to
a heightened sensitivity to individual rights in general.
This unconventional history of the concept of due process
heightens the reader's understanding of an important and vexed
question of Anglo-American law and constitutionalism. Tracing the
evolution of substantive due process through paradigmatic and
exemplary cases, Orth explains in understandable terms the sources
of controversial judicial rulings like "Roe v. Wade."
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