The Due Process Plank

43 Pages Posted: 30 Apr 2012 Last revised: 10 Jan 2013

Andrew T. Hyman

The Institute for Intermediate Study

Date Written: January 9, 2013

Abstract

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.

Keywords: Due process, Fourteenth Amendment, Abraham Lincoln, Constitutional law, Civil War, Republican Party

JEL Classification: K30

Suggested Citation

Hyman, Andrew T., The Due Process Plank (January 9, 2013). Seton Hall Law Review, Vol. 43, 2013. Available at SSRN: https://ssrn.com/abstract=2048945

Andrew T. Hyman (Contact Author)

The Institute for Intermediate Study ( email )

Monroe, CT 06468
United States

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