Who's Afraid of Substantive Due Process? [21st Annual Faculty Conference]

Is due process procedural, or does it constitute a more substantive protection for individual rights?
On January 3, 2019, the Federalist Society hosted a panel on "Who's Afraid of Substantive Due Process?". The panel was a part of the 21st Annual Faculty Conference in New Orleans, Louisiana
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Welcome:
-Hon. Lee Liberman Otis, The Federalist Society
-Incoming AALS President Vicki C. Jackson, Harvard Law School
Featuring:
-Prof. Randy Barnett, Georgetown University Law Center
-Prof. John Harrison, University of Virginia School of Law
-Prof. Nathan Chapman, University of Georgia School of Law
-Prof. Ryan Williams, Boston College Law School
-Moderator: Prof. Christina Mulligan, Brooklyn Law School

[@j.eanderson1262]

Enjoy trying to comprehend these intellectual views, debates & conversations of law and thank our creator for organizations like this. As a general non professional at pt. 1:30 in video being deprived of Life, Liberty or Property only after being found guilty through juducial i wonder how indigent ppl in gen. were/are incarcerated for periods up to a year without being found guilty? This does not appear to be a fair justice process. Is this liberty deprivation caused by part of the substantive discerning of due process?

[@Silvertestrun]

Ty

[@2Truth4Liberty]

"due process of law" is also referred to as "due course of law"
In that vein, it is easy to see that "process", in that context, is not strictly talking about procedures.

[@swishasweets]

Why is so much muted??

[@n0m0ncreates]

40:00 !!!

[@2Truth4Liberty]

Substantive due course of law includes protection of rights vested at common law and that can include any number of rights, including right to abortion.
--
That said, State legislatures may override common law rights through due course of law.
In Kansas, e.g., an "effective and adequate substitute" is required, a “quid pro quo” that provides some comparable benefit in exchange for the retraction of a common-law remedy.
--
Contrariwise, constitutional rights cannot be overridden even if claiming to provide an effective and adequate substitute, because there can be no adequate substitute for rights established by the Supreme Law (See e.g., Boumediene v. Bush, 553 U.S. 723 (2008))

[@tomthx5804]

There is no such thing as "due course of law" in American Law. The American term is due process of law, and it is in our constitution. No, it cannot include any right at all, if that is what you intended to say. Boumediene case is not a substantive due process case, it is a procedural due process case if anything.

[@dward8738]

There’s no way the 14th amendment (ratified in 1868) guaranteed a woman the right to have an abortion. Think of the time period and what rights women even had at that time. Substantive due process didn’t even start to evolve until 1923 and abortion rights much much later.

[@2Truth4Liberty]

@@dward8738
[[ There’s no way the 14th amendment (ratified in 1868) guaranteed a woman the right to have an abortion. ]]
I agree that would be the correct result of a merits determination for abortion. I was describing how the determination of rights works, regardless of what the right being claimed.