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I Explain the distinction between substance and process and the importance of the distinction for the issues discussed in this courseOver the past few yearsthe courtholding that henceforth before it can be determined that you Are entitled to due process at all and thus necessarily before it can be decided what process is due you must show that what you have been deprived of amounts to a liberty interest or perhaps a property interest Ely p19Just as a skilled magician will deliberately show his empty top hat to the audience right before he pulls a rabbit out by its ears so was judicial review pulled out of thin air Judicial review has opened the floodgates of substantive procedures in the courts which refer to content based decisions made by judges as a tool employed in matters of judicial review and has become the dominant means of legislating in areas which would not otherwise be open to legal re-interpretation In essence substance refers to the ability and right of judges to employ their own values in rendering decisions concerning a case at hand or in the past reflecting a non-interpretivist approach to legislating Such decisions are grounded in the Substantive Due Process Clause of the Fourteenth Amendment a doctrine created by Justice Taney in the Dred Scott case itself derived from the Fifth amendment which ostensibly provides citizens protection from the state governments Substance also refers to morality and decisions based on natural law as opposed to positivism Process is at the heart of democracy because it reflects the legitimate method by which a community can enact laws in a system of representative democracy to that end the principal virtue of a process oriented political system is its independence of concurrent political moral or societal pressures These issues are obviously paramount in studying social reform and the role of the courts judges as legislators or guardians of correct legislative practice2 Explain Elys account of prejudice and
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