Due Process and Fundamental Rights

12 Pages Posted: 11 May 2014

See all articles by Martin A. Schwartz

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2000


Substantive due process has always been a very contentious doctrine in the history of constitutional law. In more recent years, the Supreme Court has consistently expressed its reluctance to expand the doctrine of substantive due process, claiming that it poses a threat to the legitimacy of the Court's decision-making processes.

Nevertheless, in 2000, the Court relied upon substantive due process to sustain two claims by individuals. In the first case, Troxel v. Granville, the grandparent visitation case, the Supreme Court invoked the substantive due process rights of natural parents to raise their children. In the second substantive due process case, Stenberg v. Carhart, the Supreme Court invoked the substantive due process right of pregnant women to decide to have an abortion in striking down a Nebraska ban on so-called partial birth abortions. The author analyzes both Troxel and Stenberg within the context of the substantive due process legal doctrine.

Keywords: U.S. Supreme Court, substantive due process, fundamental rights, Troxel v. Granville, grandparent visitation rights, Stenberg v. Carhart, partial birth abortion bans

Suggested Citation

Schwartz, Martin A., Due Process and Fundamental Rights (2000). Touro Law Review, Vol. 17, No. 237, 2000, Touro Law Center Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2375235

Martin A. Schwartz (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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