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CHAPTER 2

Substantive Due Process

§2.1 INTRODUCTION AND OVERVIEW

The Origins of the Due Process Clause

There are two Due Process Clauses, one in the Fifth Amendment and one in the Fourteenth Amendment. The former operates as a limit on the power of the national government, while the latter operates against the power of the states. Both clauses guarantee within their respective spheres that no person shall be deprived “of life, liberty, or property, without due process of law.” Since both clauses operate in essentially the same fashion, albeit against different governmental bodies, we will refer to them collectively as the Due Process Clause.

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