14.5: Interpretation Process

Judicial review of contended discriminatory laws and practices are commonly resolved in some form through interpretation of the Fourteenth Amendment. The court determinations are typically controlled by either substantive or procedural due process. Substantive due process, while also based on principles of "fundamental fairness," is the measure used as to whether a law can be equitably applied by each state, regardless of the procedure applied (Justia Law, n.d.). “Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and non-economic matters” (GPO-14th Amendment, p. 1678, 2002).

The Due Process Clause of the 14th Amendment applies specifically to states in that “No State shall….” similarly located language already exist in the 5th Amendment’s Due Process Clause barring unequal laws by the federal government. Nonetheless both clauses have been interpreted to encompass identical tenets of procedural due process and substantive due process (Curry, Riley, and Battiston, 2003). Constitutional experts will often argue that in theory, the issues of procedural and substantive due process are significantly affiliated. The reality is that substantive due process has had greater political significance, as considerable portions of a state legislature's substantive jurisdiction could be circumscribed, limited, or curbed by this application (GPO-14th Amendment, 2002).