The origins of the notion of substantive due process can be seen in the Supreme Court cases of Slaughterhouse Cases, 83 U.S. 36 (1873), Munn v. Illinois, 94 U.S. 113 (1877), Lochner v. New York, 198 U.S. 45 (1905), and Muller v. Oregon, 208 U.S. 412 (1908).
But it can be traced to the case of Wynehamer v The People, (NY State, 1856), which concerns a provision of the NY State Constitution that mirrors the Fifth Amendment to the US Constitution. It rejected a purely procedural view of due process. If "due process" were simply to mean that appropriate procedure had been followed in adopting legislation,
"The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing restraint entirely away."
Therefore, Wynehamer restricts the non-procedural substance of due process to the rights of life, liberty, and property identified in the US and NY State Constitutions.
It was further developed by Thomas Cooley, /A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union/ (1868) (which I plan to eventually put online):
"Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.
"The doubt might also arise whether a regulation for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, could be sustained, notwithstanding its generality. Distinctions in these respects should be based upon some reason which renders them important, — like the want of capacity in infants, and insane persons."
And further, In re Jacobs (1885, NY State Court of Appeals, majority opinion by Judge Robert Earl):
"So, too, one may be deprived of his liberty and his constitutional rights thereto violated without the actual imprisonment or restraint of his person. Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise of the legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of liberty, which are under constitutional protection."
The Slaughterhouse Cases are also the first to introduce selective incorporation of rights under the 14th Amendment.
Since this list does not accept attachments, for those who are interested, I can send you an Excel spreadsheet of cases which trace this and other lines of development.
-- Jon
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