The Due Process Plank
Andrew T. Hyman
The Institute for Intermediate Study
January 9, 2013
Seton Hall Law Review, Vol. 43, 2013
The Republican Party’s national platform of 1860 is useful for interpreting the Fourteenth Amendment of the U.S. Constitution, which was written just six years later by a Republican-controlled Congress. However, the platform is frequently misunderstood. The due process plank of the platform is often portrayed as supporting the doctrine called substantive due process, but a close look at the platform shows that it did not actually support that doctrine. The due process plank aimed to protect liberty in free federal territories, rather than in areas like the District of Columbia where substantive due process would have applied equally. Congress largely stopped supporting slavery 150 years ago, in 1862, but not because of any substantive penumbra of the Due Process Clause.
Number of Pages in PDF File: 43
Keywords: Due process, Fourteenth Amendment, Abraham Lincoln, Constitutional law, Civil War, Republican Party
JEL Classification: K30Accepted Paper Series
Date posted: April 30, 2012 ; Last revised: January 10, 2013
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