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In United States constitutional law, substantive due process is a principle which allows federal courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law."〔U.S. Const., amend. V.〕〔U.S. Const., amend. XIV.〕 That is, substantive due process demarcates the line between acts by persons that courts hold are subject to government regulation or legislation and those acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent. Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process ''of law''". Procedural due process aims to protect individuals from the coercive power of government by ensuring that ''adjudication processes'' under valid laws are fair and impartial—''e.g.'', the right to sufficient notice, the right to an impartial arbiter, and the right to give testimony and admit relevant evidence at hearings.〔 In contrast, substantive due process aims to protect individuals against majoritarian ''policy enactments'' that exceed the limits of governmental authority—that is, courts may find that a majority's enactment is ''not'' law, and cannot be enforced as such, regardless of how fair the processes of enactment and enforcement actually are.〔 The term "substantive due process" was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. The term "substantive due process" itself is commonly used in two ways: first, to identify a particular line of case law; and second, to signify a particular political attitude toward judicial review under the two Due Process Clauses. Much substantive due process litigation involves legal challenges regarding unenumerated rights which seek particular outcomes instead of merely contesting procedures and their effects; in successful cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope.〔 Critics of substantive due process decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.〔 ==Conceptual basics== The Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.”〔''Palko v. Connecticut'', 〕 Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights are “deeply rooted” in American history and tradition; this specific phrase was used with respect to rights related to the institution of the family.〔''Moore v. City of East Cleveland'', , 503 (opinion of Powell J.)〕 The courts have largely abandoned the ''Lochner'' era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions,〔 and alternatively they could be protected by legislatures.〔Williams, George. (“The Federal Parliament and the Protection of Human Rights” ), Research Paper 20 1998-99, Parliament of Australia (1999): “nations that had relied upon the common law tradition to protect rights…have subsequently passed statutory Bills of Rights. For example, the United Kingdom Parliament has enacted the Human Rights Act 1998 (UK), while the New Zealand Legislature has passed the New Zealand Bill of Rights Act 1990.... Parliament might move to protect a few core rights that are obviously regarded as basic and fundamental to Australian democracy. This should not include rights such as ‘due process of law’ in the Fifth and Fourteenth Amendments to the United States Constitution, which has a highly developed meaning in the United States context but no resonance in Australia.”〕〔(New York Bill of Rights (1787) )〕 Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in ''United States v. Carolene Products Co.'', , footnote 4. Those three types of rights are: * the rights enumerated in and derived from the first eight amendments in the Bill of Rights ''e.g.'', the Eighth Amendment; * the right to participate in the political process ''e.g.'', the rights of voting, association, and free speech; and * the rights of “discrete and insular minorities.” The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Substantive due process」の詳細全文を読む スポンサード リンク
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