ORIGINAL

Abstract

Due Process in American jurisprudence has been at the center of controversy over proper judicial interpretation. Most notably, this debate takes place on the national stage, as the Supreme Court has interpreted due process to safeguard certain fundamental rights and liberties from any instance of legislative intrusion. This is known as substantive due process, and has been most recently been used in key political debates such as gay marriage and abortion rights. The debate then becomes a question over the legitimacy of the concept of substantive due process, and whether the court can rightfully utilize it in proper constitutional interpretation. Conservative critics have called substantive due process a contradiction in terms, while liberals have lauded its use for securing certain fundamental rights not explicitly listed in the Constitution. In this thesis, I provide a historical argument for the legitimacy of due process with a substantive component by analyzing its implementation at the state court level in North Carolina. However, I demonstrate that although it is a legitimate concept under proper judicial interpretation, substantive due process can be easily exploited to impose the judge's political will into issues normally left to the representative branches of government. The effect is that the natural processes of our democratic government are disrupted, and deprive citizens of their ability to determine these political issues on their own. Using North Carolina Supreme Court cases as a case study, I demonstrate that substantive due process has historical claims to legitimacy but also became the primary mechanism for the courts to try to address contentious political issues normally left to the legislature and executive. From North Carolina state jurisprudence, one can see that the interpretive methods applied to due process cases reflect and precede the arguments put forth in the United States Supreme Court's first substantive due process cases, most notably Dred Scott v. Sandford (1857).