Substantive Due Process

[A18]

Discuss.

[Q]

Constitutionality aside, why do you suggest that it would be an oxymoron?

[Emsworth]

Option 2. Substantive due process is oxymoronic because due process, by definition, is about process, not substance.

[A18]

That's the idea, anyway; "substantive due process" deals with the actual substance of laws, whereas actual (procedural) due process deals with how those laws are applied. But there's no clear line between the two, because (the substance of) many laws govern procedural matters; it is completely uncontroversial for the Due Process Clauses to be read as restricting the substance of statutes in that context. And of course, hypothetically, a procedural requirement that throws a major obstacle in the way of enforcing a law, can make enforcing the statute not worth the trouble.